The payment of the purchase price

(a) Inst. II, 1, 41

Transfer of ownership in Roman law—and in the ius commune—was thus usually based on the two elements of iusta causa and traditio; or, to use the terminology of the German usus modernus, on titulus and modus.^[1400] Where such transfer resulted from a contract of sale, however, there was a further requirement.

This is apparent from Inst. II, 1, 41: "Sed si quidem ex causa donationis aut dotis ant qualibet alia ex causa tradantur, sine dubio transferuntur: venditae vero ct traditae non aliter emptori adquiruntur, quam si is venditori pretium solvent vel alio modo ei satisfecerit, veluti expromissore aut pignore dato, quod cavetur quidem etiam lege duodecim tabularum: tamen recte dicitur et iure gentium, id est iure naturali, id effici, sed si is qui vendidit fidem emptoris secutus fuerit, dicendum est stadm rem emptoris fieri."

Ownership, according to the first sentence of this text, will pass only once the purchase price has been paid (or security been given). According to Justinian, this rule goes back to the XII Tables^[1401] and is based on natural law. But whatever its age, its venerability, or the breadth of its acceptance, the rule was rendered more or less nugatory in the very next sentence: for here it was said to be sufficient that the vendor "puts his trust in the buyer". It is, however, just in these cases, where the vendor has relied upon the purchaser's inclination and ability to pay the purchase price, that he would have needed the protection that the rule under discussion was obviously prepared to grant to him: namely that he should have been able, until the buyer had fulfilled his obligation, to assert his right of ownership and thus not lose out in case the purchaser became insolvent.

The rule contained in Inst. II, 1, 41 (which is in line with a Pomponius fragment of questionable authenticity)^[1402] has been consistently followed in the ius commune;^[1403] it is still applied in modern South African law.^[1404] In the course of this century, however, an intense discussion has arisen about its origin and development in Roman law.^[1405] Fritz Pringsheim launched a sweeping attack on the classicity of the rule; he attributed it in its entirety to Justinian.^{11 * ^[1406] Some regard only the qualification to the rule (Inst.}

II, 1, 41, second sentence) as Justinianic.^[1407] Others relate the price requirement to the availability of the actio auctoritatis, by which the transferee in a mancipatio could sue the transferor upon eviction for double the purchase price.^[1408] Those who accept the classicity of our rule are divided as to whether it applied to traditio but not to mancipatio,^[1409] to mancipatio but not to traditio,^[1410] or to both forms of transfer of ownership.^[1411] Then there are those who are irritated by the fact that the rule is emasculated, for all practical purposes, by its qualification;^[1412] ^{^[1413] they have tried to save the former by assuming that an express grant of credit was necessary for the latter."° Today one tends to believe that Inst. II, 1, 41 does in fact represent not only Justinianic but also classical Roman law.^[1414] This applies not only to the principle that transfer of ownership depended on payment of the purchase price but also to the qualification according to which fidem emptoris sequi was regarded as sufficient. Furthermore, it has been demonstrated by Robert Feenstra that this latter clause signifies tacit reliance on the faith of the buyer.^[1415] ^{^[1416] (b) Pre-classical, classical and post-classical law
Any account of the development of the rule in pre-classical law must remain largely a matter of speculation. Personally, I would tend to relate it to the old Roman cash sale principle and to the gradual emergence of the fully executory consensual sale. In the olden days, when sale necessarily meant executed sale, it was a matter of course that payment of the purchase price and transfer of the object sold coincided. This reflected the fact that the one performance was made in exchange for the other. As time went on, the purchase price could be credited and it then no longer necessarily had to be paid at the time when the contract was concluded.²³ It was not unreasonable at all, under these circumstances, to limit the practical consequences of this relaxation of the cash sale principle and to make (or rather: continue to make) transfer of ownership dependent upon payment of the purchase price. This was the least one could do to maintain the balance of do ut des inherent in the sale.
After all: why should the fact that the purchaser was granted indulgence put the vendor at a disadvantage? However, this rationale was bound to fade once sale had become a fully executory contract. If the parties agreed to a contract of sale, that was one thing. How and when they would carry out the obligations arising from this transaction was a different matter. Both the delivery of the thing and/or payment of the purchase price could be postponed and the special protection of the vendor was therefore no longer necessary in order to maintain the institutional balance of a sale transaction. Hence the indifference of the classical lawyers to our rule: they liberally extended exceptions that had long since been recognized^[1417] until they had largely neutralized the rule; they also sometimes seem to have simply ignored it.^[1418] One may well ask why Justinian faithfully preserved the position in classical law for posterity rather than simply allow this process of oblivion to continue. The answer lies in the development of post- classical law: for under the influence of the Hellenistic legal systems,^[1419] with their principle of necessary remunerativeness, the idea of payment of the purchase price as a prerequisite for the transfer of ownership was not only not put to sleep — it was energetically revived.^[1420] The whole concept of the consensual and fully executory contract broke down and the sale was regarded as binding only once the purchase price had been paid.^[1421] Payment of the purchase price made the purchaser owner of the object sold and gave him the right to demand its transfer. Institutiones II, 1, 41 does not, therefore, represent the final mark of a continuous development, but has to be seen as an attempt to reconcile generally accepted notions and practices of Justinian's time with the principles of classical Roman law. Hence the retention of the rule, combined however with the "fatal qualification".^[1422]
(c) Pactum reservati dominii
The vendor, then, who was prepared to grant the purchaser credit, but did not want to rely solely on the purchaser's solvency and honesty, was well advised to make special arrangements and let the purchaser have the object as a precarium tenens or as a conductor.
This enabled the latter to use the object even before he had paid the purchase price, while at the same time securing the vendor's position. A traditio did not take place under these circumstances and the vendor therefore retained ownership (and in the case of locatio conductio even possession) of the object sold. "Cum venderem fundum, convenit, ut, donee pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet":^[1423] such an agreement, which had the practical effect of what we would call a reservation of title (without, however, technically constituting it), and which the writers of the ius commune referred to as a pactum reservati dominii,^[1424] was construed by the Roman lawyers not as a single (sale) transaction but as a (cumulative) combination of sale (emptio venditio) and lease (locatio conductio). However, the contract of sale was the dominating feature, whereas the lease served a subordinate function within this composite transaction and was adapted to fit into the framework set by the intention of the parties to effect a contract of sale. Hence, Paulus' generalizing statement "locator non obligatur, conductor obligatur".^3- The emptor/conductor is bound, under the actio locati,³³ to pay the rent. The actio conduct! (ot the emptor/conductor against the venditor/locator), on the other hand, is not applied, for it is overshadowed, and thus superseded, for all practical purposes by the actio empti.³⁴. ^3S II.}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The payment of the purchase price

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