The determination of quod interest
This was bound to happen, however, once the tradition of taking stipulationes (duplae) fell into disuse. Let us see, for instance, what Van Leeuwen says in this regard:
"Quae stipulationes propterea paulatim ab usu et moribus recesserunt, quibus emptori cui res evicta est, pretii, sumptuumque, damnorum, et interesse restitutio sufficere intellegitur."50
And Willem Schorer spells out the consequences: "Evictione locum habente non amplius duplum peti potest, sed tantum id quod interest; cessante moribus duplae stipulatione."51 If stipulationes duplae had disappeared from the scene, because the claim for quod interest was regarded as satisfactory and sufficient under the circumstances, the raison d'etre for the strange alternativity of how the purchaser could make use of the actio empti had fallen away.
In Roman times it had been incompatible with good faith if the vendor refused to do what vendors normally did: to give a stipulatio duplae. Hence the purchaser was granted the actio empti to claim dupla pecunia. Now that the actio empti was available anyway, it would hardly have been in accordance with the precepts of good faith to read into the contract of sale what the parties would not normally have stipulated expressly and what the vendor would have been under no obligation to accept. The writers of the ius commune therefore generally restricted the scope of the actioitaque in omnibus casibus, qui certain habent quantitatem vel naturam, veluti in venditionibus..., hoc quod interest dupli quantitatem minime excedere." It is unclear whether this arbitrary limitation of "dupli quantitas" refers to the ordinary value of the object sold or to the purchase price; cf. Medicus, Id quod interest, pp. 288 sqq.; Schindler, Justinians Haltung ãèã Klassik, pp. 259 sqq. Generally speaking, it does not seem to have been carried into effect in other parts of the compilation.
In the context of eviction, however, we do find a hint in Afr. D. 19, 1, 44 ("... et non ultra duplum periculum subire eum oportet"). Again, it is difficult to decide what the doubling referred to; also, there is a dispute as to whether this text was interpolated by Justinian (in order to bring the law into line with C. 7, 47, 1) or whether D. 19, 1, 44 expresses the opinion of at least one classical lawyer and perhaps even induced Justinian to formulate his generalized rule; cf. e.g. Honsell, Quod interest, pp. 54 sq.; Knutel, Stipulatio poenae, pp. 341 sqq. In any event, C. 7, 47 was usually applied to the "quod interest" claim during the time of the ius commune; cf. e.g. Cuiacius, Ad Africanum Tractatus VIII, Ad L. 44 de actio empt.; Windscheid/Kipp, § 391, 5.ô Levy, Obligationenrecht, pp. 216 sqq.; Kaser, RPr II, pp. 390 sq.
33 Centura Forensis, Pars I, Lib. IV, Cap. XIX, 11; cf. further e.g. Groenewegen, Delegibus tis, Digest. Lib. XXI, Tit. I, 1. 31 quod si nolit. Lib. XXI, Tit.II in initio; Voet, Commentariis ad Pandectas, Lib. XXI, Tit.II, XXVIII.
3 Aantekeningen, III, XIV, 6 (in Hugo Grotius, Inleiding, Middelburg, 1767). empti so as to exclude the claim for dupla pecunia.[1543] The vendor was liable "ex natura ipsius contractus",[1544] but only de eo quod interest, i.e. to the extent of the purchaser's interest in not being evicted. Opinions differed, however, on how this interest was to be determined. The most immediate consequence of the act of eviction was, of course, that the purchaser had lost the object sold to him. But did that mean that he could claim the value of this thing as at the time of eviction?[1545] Or is the purchase price to be taken as a basis for evaluating the purchaser's loss? Does quod interest under these circumstances not rather have two objects: restitution of the price paid on the one hand; payment of all the purchaser has suffered over and above it on the other?[1546] This dispute reflects the ambiguity of the Roman sources on the point. It survives in the continued controversy between modern Romanists[1547] and still clouds the position in South African law.[1548]
7.
More on the topic The determination of quod interest:
- Id quod interest
- QUOD INTEREST, DAMAGES AND BREACH OF CONTRACT
- Negotiating Autonomy and Self-Determination
- Autonomy and Self-Determination in Multinational Federations
- 1. Praestatio eius quod debetur
- II THE HISTORY OF THE INTEREST RATES AND USURY
- "Quod metus causa gestum erit, ratum non habeo"
- Those with a keen interest may wish to consult Boardman, J., Griffin, )., and Murray, O. (eel s.) (2001), The Oxford History' of the Roman World, Oxford:
- In the seventeenth and eighteenth centuries, the rise of nationalism and the consolidation of royal power in Europe entailed an increased interest in the development of national law and thereby precipitated the movement towards codification.
- Sint ista Graecorum, quamquam ab iis philosophiam et omnes ingenuas disciplinas habemus, sed tamen est aliquid, quod nobis non liceat, liceat illis. Cicero, De finibus, 2. 21. 68.