The position in classical law
True: there are statements in the Digest which accord fully with Inst. Ill, 23, 3. Paulus, for instance, is quoted as specifically stating.. perfecta emptione periculum ad emptorem respiciet".[1443] But these statements have all been subjected to extensive textual criticism, and the result has been that some authors have been able to read the exact opposite, namely periculum est venditoris, into the sources.[1444] Others have not gone that far.
Meylan has tried to show that the Roman lawyers applied a very refined scheme and made their decision dependent upon whether a res mancipi or nee mancipi had been the object of the sale and, if it had been a res nee mancipi, whether it had been either lost or totally destroyed, or whether it had merely been damaged.[1445] Rabel, on the other hand, came to the conclusion that the Roman lawyers decided without any principle at all and allocated the risk, according to the merits of each case, sometimes to the vendor, sometimes to the purchaser.[1446] Today the opinion prevails that periculum est emptoris was the rule not only in Justinianic but also in classical law.[1447] [1448] Methodically, one has abandoned the shifting sands of far-reaching interpolation allegations and is therefore able to approach the classical texts from a more consolidated basis. Furthermore, one cannot help suspecting that at least some of the extreme opponents of the classicity of periculum est emptoris tended to approach the sources with preconceived ideas. Haymann, for instance, regarded this rule as a stain on the badge of honour of the Roman lawyers which he set out to efface.69 This sounds like arguing on the pattern of what ought not to be, cannot be; "... dass nicht sein kann, was nicht sein darf. "[1449] It is true, however, that periculum est emptoris has often been regarded as a strange and anomalous peculiarity of Roman law. Pufendorf criticized it as being in conflict with "res perit domino".[1450] This it is indeed, for the vendor, at the time when the goods are destroyed or damaged, has not yet transferred ownership and even retains possession. Would it therefore not be much more in accordance with natural justice to let the loss lie where it has struck, rather than to shift it to the purchaser who has, as yet, neither legal nor factual control over what had been sold? Periculum est emptoris continued to be applied in practice, but some of the attempts to provide a rational justification for this rule sound rather forced and awkward: "illustrationjsj of the fertility of the Teutonic intellect when in search of a reason", as Williston[1451] said of the theories of a man with the rather inauspicious name of Goose.[1452]3.
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