The question of arrha

(a) Arrha confirmatoria

Nor was the handing over of an arrha necessary in order to make the contract binding. Arrha is an object (in Rome, usually a ring^[1200] or a sum of money) given, upon entering into a contract, as an earnest.^[1201] The historical analysis of this institution is a favourite topic of discussion, especially amongst English romanists;^[1202] the disputes, however, rage mainly around the developments in the law of the Roman Republic and of Justinian, whereas the situation in classical law is relatively clear.

"Emptio venditio contrahitur cum de prctio convenerit, quamvis nondum pretium numeratum sit, ac ne arra quidem data fuent.

nam quod arrae nomine datur, argumentum est emptionis et venditionis contractae", says Gaius,^[1203] and in D. 18, 1, 35 pr. he expands: "Quod saepc arrae nomine pro emptione datur, non eo pertinct, quasi sine arra conventio nihil proficiat, set ut evidentius probari possit convenisse de pretio."^[1204]

Wherever such an earnest was given, it only provided some evidence that a contract of sale had been concluded. It did not have a constitutive effect or function, but merely played a confirmatory role (arrha confirmatoria).^[1205] Once the contractual obligations had been discharged, the ring could be claimed back. Ifa sum of money had been given as arrha, it was set off against the purchase price.^[1206]

(b) Greek arrha

D. 18, 1, 35 pr. makes it clear that the confirmation of a contract by means of an arrha was not a rare occurrence. The text also contains a pointed allusion to an alternative way of looking at arrha. This was the view prevailing in Greek law, which did not recognize consensual contracts and where the handing over of an earnest was therefore essential for creating (contractual) liability.^[1207] Here both parties were interested in the arrha for it was not only the buyer who was penalized by its forfeiture if he failed to pay the purchase price: it also served to secure the seller's obligation in that, if he defaulted, he not only had to return the buyer's arrha, but he also had to pay him alterum tantum,

e. as much in addition. Arrha, in this form, "seems to have remained the real sanction of sale in the Greek East throughout the Hellenistic period"^[1208]; a mere agreement to buy or sell, unaccompanied by arrha, could be repudiated with impunity by either of the two parties. Roman practice was clearly influenced by this Hellenistic model, but to what extent Greek arrha was ever received into Roman law remains a matter of speculation.^[1209] ^{^[1210] ^[1211] ^[1212] ^[1213] In any case, it would have made sense only at a time when consensual contracts were not yet recognized as actionable; for once the aggrieved party was able to sue on the contract, there was no longer any real need to acknowledge a system of alternative sanctions. On the other hand, Plautus in his comedies refers to what can in substance only be the Hellenistic version of arrha.¹² These plays were written at a time when consensual contracts were probably already enforceable.¹³ Did he therefore present Greek law to his audience? But would constant allusion to a foreign legal institution have succeeded in eliciting any response (let alone a comical one) from a crowd of spectators that has been characterized as "a noisy and unruly lot"?¹⁴ Would it not, therefore, be more realistic to consider Plautus as "faithfully portraying an already romanized version of the Greek law"?¹⁵ Alternatively, can one solve the problem by referring to the "social value" of arrha: "Even if it had no legal effects whatsoever, sellers would still want to extract substantial arra from the buyer.... In the mind of the man in the street, a consensual contract is that much more binding where arra has been given..."?^ls
Be that as it may, the practice of giving an arrha lived on, and even the impact of the Greek perception of this practice was only temporarily subdued.
(c) Post-classical arrha
With the decline of consensualism, arrha (re)gained its attraction.
Justinian even received and incorporated Greek arrha into the Corpus Juris Civilis, but only in respect of sales effected in writing.^[1214] ^{^[1215] ^[1216] ^[1217] Reason: "[I]n his autem [emptionibus et venditionibus] quae scriptura conficiuntur non aliter perfectam esse emptionem et venditionem constituimus, nisi et instrumenta emptionis fuerint conscripta vel manu propria contrahentium, vd ab alio quidem scripta, a cotitrahente autem subscripta et, si per tabellionem fiunt, nisi et completiones acceperint et fuerint partibus absoluta, donee enim aliquid ex his deest, et paenitentiae locus est et potest emptor vel venditor sine poena recedere ab emptione."¹¹¹
Whenever it was envisaged to reduce the agreement into writing, the document that was to be drawn up was regarded as the contract. Prior to its written formulation, no binding obligations existed; there was still room for reconsideration and either vendor or purchaser could withdraw from the contract with impunity. Hence the need for arrha. Its function was penal (arrha poenalis). On the other hand, however, Justinian also revived and preserved the classical (purely) consensual sale. For these contracts "quae sine scriptura consistunt", arrha still had a merely evidentiary function.¹⁹ Yet it is difficult to determine whether the distinction was really that straightforward. Institutiones III, 23 pr. in fine, contains a clause ("sivc in scriptis sive sine scriptis venditio celebrata est") which cannot easily be reconciled with what is set out at the beginning of the text.
(d) Argumentum emptionis contractae or arrha poenitentialis?
C. 4, 21, 17, our other major source for the Justinianic arrha, is, if anything, even more difficult to understand. The interpretation of the sources has thus given rise to disputes which continue unabated.^[1218] As far as the position in the ius commune is concerned, the main point of controversy has always been the function of an arrha given after the sale had already come into existence: "Venditione perfecta, et arris datis, emptor, seu venditor recusat implere promissa, quaestio est quid iuris?"^[1219] Was the arrha merely argumentum emptionis et venditionis contractae (evidence that the contract had been concluded)?^[1220] If one of the parties subsequently withdrew from the contract and did not render performance as promised, the other would then have had a claim for damages on the contract in exactly the same way as if no arrha had been given.^[1221] Or are we dealing here with what came to be called arrha poenitentialis ("Reugeld")'? Both parties, it was often argued, had a right to withdraw from the contract; the purchaser, if he chose to exercise this right of withdrawal, forfeited what he had given as arrha, whereas the vendor, who no longer wanted to be bound by the contract, had to return double the amount of the arrha: "[H]oc in casu ad id, quod interest, actionem non esse dandam, sed arras datas omitti, aut duplum reddi oportere."²⁴ According to this view, arrha weakened rather than strengthened the contract.
The fathers of the BGB favoured the former solution. Of course, the will of the parties is always of paramount importance, and it is therefore primarily up to them to determine the effects of arrha in detail.²⁵ However, in case of doubt, it is not to be regarded as arrha poenitentialis; it is deemed to be (merely) proof of the conclusion of the contract.²⁶ 3.}}

<< | >>

↑

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

The question of arrha

More on the topic The question of arrha: