The position under Justinian
Justinian preserved this achievement of classical jurisprudence for posterity essentially unchanged. Of course, mancipatio and auctoritas had become obsolete and had to be eradicated from the sources,45 but otherwise he retained the Roman system of liability on eviction.46 The purchaser could sue when he was—partially or totally—deprived of his habere licere, as a result of a real right vesting in a third party.
His claim could arise from either a specific promise of guarantee given by the vendor (usually a stipulatio duplae) or the contract of sale itself. If he sued on the contract of sale (actio empti), he could claim his interest in rem habere. Alternatively, where he could have asked the vendor for a stipulatio duplae, he could also use the actio empti to claim what he would have got had such a promise been given (i.e. dupla pecunia).47 Seeing that the actio empti covered his full interest (subject only to the general limitation imposed on the quantum of recoverable damages in C. 7, 47, I),48 a cogent reason for stipulationes duplae no longer existed. It was in order to accommodate the business practice of his time (which continued to use specific guarantee stipulations in the case of sale)49 that Justinian refrained from further streamlining the protection of the purchaser against eviction.6.
More on the topic The position under Justinian:
- Hume’s Position Considered for the First Time
- Hume’s Position Considered for the Fifth Time
- International political, military and economic position
- Hume’s Position Considered for the Fourth Time
- The position of the lessee
- The position under the ins commune
- The position in modern law
- The position in classical law
- Hume’s Position Considered for the Second Time
- The position of the natural lawyers; summary
- Hume’s Position Considered for the Third Time
- The Roman law of persons was concerned with the status or legal position of the human being.
- The position in modern French and German law