The sale of res extra commercium or of a free man

(a) Res publicae, res divini iuris and the liber homo

Furthermore, there were certain categories of things, in which dealings were not factually (objectively) impossible, but prohibited by law.

These were liberi homines — subjects rather than objects of rights— things in usu publico (such as public roads, fora, basilicae, stadia, theatra, cloacae or rivers)⁵² and res divini iuris: res sacrae, dedicated to the gods above (such as temples or sacred groves), res religiosae, dedicated to the gods below (tombs, burial grounds, etc.) and res sanctae, places specifically under divine protection, such as the walls and gates of a city.⁵³ Res publicae and res divini iuris were taken to be extra commercium; they could not be the object of any commercial legal transaction between private individuals. Originally, therefore, any contract of sale involving either a free man or a res extra commercium was void.

(b) The availability of the actio empti

Soon, however, this solution was felt to be unsatisfactory in situations where the purchaser (but not the vendor) had been unaware of the true status of the thing. Cases of this nature were, of course, very unlikely to crop up with regard to res publicae and, to a lesser extent, res divini iuris:

³³ Cf. infra, pp. 687 sqq. On the sale of an object belonging to the purchaser (suae rei emptio) cf. Pomp. D. 18, 1, 16 pr. ("non valet"); lui. D. 12, 6, 37; Ulp. D. 50, 17, 45 pr.; Antonio Carcaterra, "I negozi giuridici sulla cosa propria", (1940) 18 Annali Bari 1 sqq.; Giannetto Longo, "Negozi giuridici collegati e negozi su cosa propria", (1979) 45 SDMI 93 sqq.; Carmela Russo Ruggieri, '"Suae rei emptio consistere non potest'", in: Sodatitas, Scritti in onore di Antonio Guarino, vol. VI (1984), pp. 2813 sqq.; Arp, Anfängliche Unmoglichkeit, pp.

95 sq., 122.

³ Ulp. D. 18, 1, 28; on this text, see David Daube, "Generalizations in D. 18, 1 de contrahenda emptione", in: Studi in onore di Vincenzo Arangio-Ruiz, vol. 1, pp. 186 sqq.; cf. also Paul. D. 19, 1, 46.

² Cf. e.g. Kaser, RPr I, p. 381.

^s Gai. II, 3 sqq.; Marci. D. 1, 8, 6, 2 sqq.; Inst. II, 1, 7 sqq.

"... it is... difficult to credit that even the greenest provincial on his first visit to the mother city could honestly believe that he could take effective possession from another private individual of... the Temple of Venus... or the Via Sacra";⁵⁴

they did, however, present a problem as far as the sale of a liber homo as a slave was concerned.⁵⁵ Of course it was not possible to transfer ownership in this instance; but that, as we shall see presently, was not the duty of the seller. The liber homo was an economic asset of which the purchaser could enjoy the habere licere and which was thus capable of being the object of a sale.⁵⁶ The sanction of invalidity was therefore already in classical Roman law restricted to those cases where the purchaser had been fully aware of the status of the "slave" at the time when the contract was concluded.⁵⁷ If, on the other hand, he had not known that what he had bought was not a slave but a free man, the contract was regarded as valid.⁵⁸ This implies that, once the truth had been discovered and the purchaser consequently lost possession of the man, he could bring the actio empti against his vendor in order to claim damages.⁵⁹ The position has been conveniently summed up by Licinius Rufinus:

"Libcn hominis emptionem contrahi posse plerique existimaverunt, si modo inter ignorantes id fiat, quod idem placet etiam, si venditor sciat, emptor autem ignoret. quod si emptor sciens liberum esse emerit, nulla emptio contrahitur."⁶⁰

The transaction was considered to be a valid sale "for the purpose of allowing the innocent purchaser an actio empti.

Practicality—and the jurists were nothing if not practical—not legal technicality dictated this departure from nicety of principle."⁶¹ Otherwise, the purchaser would have been able to avail himself only of an unjustified enrichment claim or of the actio doli—the former merely allowing him to recover the purchase price, the success of the latter being dependent on proof of the vendor's knowledge that the "slave" was free.

Whether the same pragmatic approach was adopted with regard to res divini iuris or whether the classical lawyers regarded the sale of res extra commercium as invalid even if the purchaser had entered the contract in good faith, is not entirely clear. It cannot have been easy, in these cases, for the purchaser to establish his ignorance. This might well be the reason why in texts such as D. 18, 1, 22 and 23 the nullity of the sale was proclaimed without any qualification and, as a consequence

³⁴J.A.C. Thomas. "The Sale of Res Extra Commercium". (1976Ì 29 Current Legal Problems 139.

² Cf Pap. D. 41, 3, 44 pr.; "... nam frequenter ignorantia liberos emimus"; Paul. D.18, 1,5: "... quia difficile dinosci potest liber homo a servo."

³⁵ Stein. Fault, p. 63.

"Cf. e.g. Paul. D. 18, 1, 34, 2.

³³ Cf. e.g. Pomp. D. 18, 1, 4.

® According to the rules relating to eviction; cf. infra, pp. 296 sqq.

® D. 18, 1, 70. Cf. also Inst. Ill, 23, 5.

^f” Thomas, (1976) 29 Current Legal Problems 141; cf. also Arangio-Ruiz, Compravendita, pp, 126 sqq.; Stein, Fault, pp. 62 sqq.; Medicus, Id quod interest, p. 163.

(only) the condictio was granted to recover the price. Nevertheless, where the purchaser had been "nesciens", invalidity probably implied only that the obligation could not in fact be discharged.^[1246] Ulpianus granted an actio in factum to the purchaser ("Si locus religiosus pro puro venisse dicetur, praetor in factum actionem in eum dat ei ad quern ea res pertinet"),^[1247] ^{^[1248] which paved the way for his pupil Modestinus finally to make the actio empti available in these cases too:}

"Qui nesciens loca sacra vcl religiosa... pro privatis comparavit, licet emptio non teneat, ex empto tamen adversus venditorem experiatur ut consequatur quod interfuit eius nc deciperetur."^M

Justinian consolidated the position and placed both cases (the sale of a res extra commercium and that of a free man) on a par.^[1249] But what could the purchaser recover with his actio empti? Modestinus says "quod interfuit eius ne deciperetur"; Justinian formulates "quod sua interest deceptum eum non esse".

This sounds like what the modern lawyers would call the negative interest. And, indeed, these texts did provide the historical basis and dogmatic point of departure for that doctrine.^[1250] The aim of granting a claim for damages, so it was argued, is to put the injured party financially in whatever position he would have been in had the wrongdoer acted properly. Hence, in order to determine the quantum of damages, the fraudulent misrepresentation has to be eliminated in thought. If the vendor had not deceived the purchaser, the latter would not have entered into the contract. As a consequence, he can claim only his interest in the non-conclusion of the contract, not his (positive) interest in the validity of the contract. The hypothetical basis for assessing his damages should therefore be the position he would have been in had the contract not been concluded; not the position he would have been in if the contract had come into existence and been properly carried out.

The distinction between negative and positive interest has certainly proved to be a valuable one and plays a significant role in the modern German law of damages.^[1251] But it does not represent Roman law. "Quod interest deceptum non esse" should not be taken as a conceptual deviation from the normal quod sua interest; it did not entail any restriction as tar as the recoverable interest was concerned. The injured party could claim his (full) interest in not having been deceived. This interest, however, was probably assessed on the basis of what the purchaser would have had had the object of the sale in fact been what he had believed it to be, not only on the basis of what he would have done had he realized that the vendor was deceiving him.^[1252]

Ulp. D. 11, 7, 8, 1, Mod. D. 18, 1, 62, 1 and Inst. Ill, 23, 5, incidentally, did not only stand at the cradle of the concept of negative interest in the modern law of damages, but were also among the handful of texts which inspired Rudolf von Jhering to formulate his celebrated doctrine of culpa in contrahendo.^[1253] Contractual diligentia, he postulated, is owed not only where the contract has come into existence but also where it is still in statu nascendi.

With the commencement of their negotiations, the parties are entering into a (quasi-jcontractual relationship giving rise to rights and duties. Based on the reasonable expectations engendered by the precontractual contact, these rights and duties go beyond the compass of the law of delict and are to be determined in accordance with the contract which the parties intend to conclude. Infringement of the duties in contrahendo by one of the parties entitles the other to claim the damages that he has suffered in relying on the eventual conclusion/validity of the contract. The liability is contractual and it is based on culpa; compensation is limited to the negative interest. For a far-ranging theory of precontractual liability of this sort, the Roman texts naturally provide only tentative intimations. In fact, Jhering's "legal discovery"^[1254] was a product of the method of conceptual construction prevailing in the second half of the 19th century^[1255] rather than the result of an impartial exegesis of the historical Roman law.^[1256] We have seen, for instance, that in cases of sale of res extra commercium the parties were liable only for dolus, not culpa in contrahendo. Herejhering could draw attention to the Prussian code of 1794 as evidence for the fact that this result was no longer accepted as equitable. § 284 I 5 read:

"Was wegen des bei Erfüllung des Vertrages zu vertretenden Grades der Schuld Rechtens ist, gilt auchfiir den Fall, wenn einer der Contrahenten bei Abschliessung des Vertrages die ihm obliegenden Pflichten vernachlässigt hat. "⁷*

Culpa in contrahendo has become a firmly established feature of the legal landscape of German private law, albeit praeter legem, i.e. as a growth ofjudge-made law.^[1257] ^{^[1258] It has even been (ab)used for a somewhat uncouth intrusion into the realm of delict; but this is a more domestic problem arising, largely, from an unfortunate stumbling block defacing the German law of delict.^[1259] Culpa in contrahendo falls squarely into the grey area between the law of contract and the law of delict, and there is much to be said for the proposition that it does not fit neatly into either of these, but rather forms an integral part of a third "track" of liability.^[1260] But however one might assess these systematic implications, the impact of Jhering's doctrine, both in Germany and abroad, shows the practical need for and legitimacy of (non-delictual) liability for culpa in contrahendo.^[1261]}

<< | >>

↑

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

The sale of res extra commercium or of a free man

More on the topic The sale of res extra commercium or of a free man: