The duties of the purchaser

A contract of sale gave rise to two actions, the actio empti (of the purchaser against the vendor) and the actio venditi (which was available to the vendor against the purchaser).

"Quod A^b A^b de N" N" hommem Stichum emit (vcndidit), quidquid ob earn rem N^ra N'" A" A" dare facere oportct ex fide bona, eius index N^IT1 N^ra A° A° condemnato, si non paret, absolvito.'"³⁶

Which were the respective duties of the parties, enforceable by means of these actions? The purchaser had to pay the purchase price, that is, to transfer the purchase money into the ownership of the vendor: "[E]mptor... nummos venditoris facere cogitur."^3T From the time of delivery of the object sold the vendor could charge interest on the purchase price ("item usurae pretii post diem traditionis [veniunt in hoc indicium]");-™ furthermore, under certain circumstances he could claim

D. 19. 2. 20. 2.

^s According to Daube. (19589 5 UIDA 430. 433. the actio venditi. He regards the text as interpolated.

³¹ For details, see Knutd, Studien, op. cit., note 30, pp. 35 sqq., 51 sqq. Cf. also infra, pp. 530 sqq.

² Another possibility of securing the position of the vendor is intimated in Ulp. D. 43. 26, 20; on which see Anton Memhart, "Dogmengeschichtliches und Dogmatisches zum Eigentumsvorbehalt", (1988) 105 ZSS 729 sqq.: the purchaser receives the object by way of traditio, but the parties agree that such traditio is not to have the effect of transferring ownership; instead, ownership is to pass only with payment of the purchase price. This agreement constitutes a pactum adicctum to the contract of sale (generally on the essence of pacta adiecta, cf.

³⁵ Cf. Lenel, HP, p. 299. On the interplay of the actiones empti and venditi, see J. A.C. Thomas, "Sale Actions and other Actions", (1979) 26 RID A 417 sqq.

³⁷ Ulp. D. 19, 1, 11, 2 in fine; d\ also Paul. D. 19, 4, 1 pr.

" Ulp. P. 19, 1, 13. 20; reason: "... nam cum re emptor fruatur, aequissimum est eum usuras pretii pendere." Cf. also Pap. vat. 2 and cf. e.g. Giuhano Cervenca, Contribute/ ttUo studio delk usurae c.d. legali vet diritto romano (1969), pp. 13 sqq.; and, most recently, the comprehensive and thorough analysis by Rolf Kniitel, "Zum Nutzungszins'", (1988) 105 ZSS 514 sqq. The rule has been incorporated into the BOB (§ 452: "The purchaser is bound to pay interest on the purchase price from the date at which the, cjnol laments of the purchased object accrue to him, unless the purchase price is pav^AMt^Aa-fiXc"d~time*';;tfrquestion in the law relating to the vendor's liability which would, by the time of the late classical lawyers, not have found a solution conforming also to the modern sense ot justice and fairness).

^A Ct. supra, pp. 241 sqq. (dolus in contrahendo); ct'. further e.g. Ulp. T). 18, 4, 2, 5. contract. At least in some instances, the vendor was liable for culpa too.⁵⁹

III.