iv. contract of sale 1 Flashcards
EMPTIO VENDITIO
= consensual contract in which parties agree on an exchange of good against money.
- bilaterally obliging and a synallagmatic contract (DO UT DES)
- consensual contract: obligation arises from CONSENSUS between parties and it does not require a particular form.
ESSENTIALIA NEGOTII
= essential, indispensable provisions of a contract, for sale it is a designation of the goods to be sold and the purchase price.
actions arising from EMPTIO VENDITIO
seller: ACTIO VENDITI
buyer: ACTIO EMPTI
NATURLIA NEGOTII
= rules which arise from BONA FIDES in absence of contractual clauses
ID QUOD ACTUM EST
= everything explicitly stated or intended by the parties, in the broader sense to which parties typically agree when concluding a contract of a certain kind.
types of errors
type of transaction: ERROR IN NEGOTIO
identity of the object: ERROR IN OBIECTO / ERROR IN CORPORE
FALSA DEMONSATRAIO NON NOCET
when parties name a wrong price or refer to wring object but in intent agree on the contents of the contract, the contract comes into existence in accordance with real intent.
ERROR IN SUBSTANTIA and dissent
- Marcellus: focus on whether consensus on outward appearance of the object, substance is irrelevant.
- Ulpian: substance is important, but contract only fails when it is completely different
- Julian: even when substance only differs in part, no contract comes into being.
ERROR IN SUBSTANTIA vs. defects of quality
Emergence of defect of quality has no impact on contact but gives buyer a warranty claim.
coercion, fear and fraudulent intent under IUDICIUM STRICTI IURIS
Transaction concluded under coercion (VIS) or fear (METUS) is valid under IUS CIVILE. Praetorian edicts protect ethos person against enforcement of claims: EXCEPTIO METUS
if he performed an obligation, he is entitled to restoration: RESTITUTIO IN INTEGRUM
coercion, fear and fraudulent intent in case of BONAE FIDEI IUDICIA
Invalidity arises from the fact that it goes against BONA FIDES, and no contractual obligations are created.
PRETIUM VERUM
= seriously meant
- cannot be symbolic implying that it is rather intended as a gift
- it cannot be agreed that the purchase price will not be collected (PRETIUM SIMULATUM)
- mixed gift: it can be below purchase price with a donative intent (ANIMUS DONANDI), rules for non-gratious transactions only partially apply
- mixed gifts or advantageous contracts of sales that attempt to circumvent prohibition of gifts are prohibited between spouses
AGERE IN FRAUDEM LEGIS
= attempt to circumvent rules of law: keeping to the wording of the law but consciously subverting the purpose of it.
PRETIUM CERTUM
= clearly defined or can be determined according to objective criteria
- it is controversial whether a third-party can set the price:
Cassius & Labeo: invalid - the contract comes into existence when the parties accept the price named by third party
Ofilius & Proculus: valid, contract comes into existence as soon as they have chosen third person to set the price
types of goods
SPECIES - individualised goods
GENUS - unascertained goods
alternative obligation (!)
= obligor has two or more ways of making a performance. If one becomes impossible, he still owes the other option.
EMPTIO REI SPERATAE
= selling a thing that does not exist yet (eg. unborn slave child or animal, future fruit). The validity of the contract depends on the object coming into existence (condition precedent). If it does, the contract is assumed to have come into existence at the time of agreement.
Fore-effects of contract: neither parties may prevent satisfaction of the suspensive condition, otherwise actions under contract of sale can be brought against them.
EMPTIO REI SPEI
= (‘speculative purchase, purchase of hope): sale of thing that does not yet exist but the buyer is obliged to pay a specified price regardless whether the object comes into existence. Seller is obliged to endeavour the realisation of the hope.
IMPOSSIBILIUM NULLA EST OBLIGATO
‘impossible thing cannot be object of obligation’ If something is impossible from outset, the contract does not come into existence.
In some cases, this principle is broken to protect the buyer who trusted in the conclusion and is sometimes granted ACTIO EMPTI.
initial vs subsequent impossibility
initial: impossible before or at time of conclusion of contract - rules of impossibility apply
subsequent: impossibility arises after conclusion of contract - rules of assumption of risk and defective performance apply
objective vs. subjective impossibility
objective: performance no one can make
subjective: incapability of the particular debtor, rules of impossibility do not apply
practical impossibility
= relates to an object that never existed or no longer exists
legal impossibility
= practically feasible but forbidden by law and the promise is invalid
1. RES EXTRA COMMERCIUM: RES PUBLICAE and RES DIVINI IURIS
2. EMPTIO REI SUAE: thing is already in ownership of the buyer
3. purchase of a free Roman if the buyer knows his status of liberty and furtive thing if buyer and seller knows it was stolen
types of RES DIVINI IURIS
RES SANCTAE: under protection of gods, eg. city walls
RES SACRAE: dedicated to gods by consecration eg. temples
RES RELIGIOSAE: pieces of land where people are buried and therefore have been consecrated to the gods of the underworld, eg. tombs
CONDICTIO INDEBTI
= serves the recovery of assets that were given by mistake to satisfy a non-existent debt. It is a IUDICIUM STRICTI IURIS.
Preconditions:
1. performance: consciously undertaken shifts of assets from estate of claimant ton that of defendant
2. absence of legal ground (CAUSA)
3. mistaken belief that performance was owing
reliance losses / reliance interest
= buyer incurs damages because hetrusetd the validity of the contract of sale and on this basis makes dispositions which are frustrated when the contract turns out to be invalid. It can be prevented if misconception is cleared up in time.
Sources do not say if the award of reliance damages depends on negligence or fault of seller.
legal grounds for compensation for reliance losses
- ACTIO IN FACTUM, ACTO DE DOLO: if there is no conclusion of contract, strictly speaking there cannot be a brach of contract claim, so this analogous claim was created (ACTIO IN FACTUM). If seller acted in bad faith, ACTIO DO DOLO is possible.
- ACTIO EMPTI: deceived buyer is granted it although there is strictly speaking no contract, which can be justified by the fact that seller’s actions are a breach of BONA FIDE.
partial impossibility
= initial objective impossibility only affects part of the performance.
1. if agreement between parties imply that contract would not have been concluded in partial impossibility, it is treated as total impossibility
2. if obecjt of purpose is divisible according to parties’ will, the contract is adapted to the performcance still possible and purchase price lowered.
difference in opinion whether performance is divisible in terms of theory of impossibility
Case: House was burned down unbeknownst to both seller and buyer before contract was closed.
Nerva, Sabinius, Cassius: no contract of sale comes into existence because object does not exist. Although house is merely an accession to land, it was the main object of the sale.
Neratius:
1. if major part burned down, buyer can withdraw from contract
2. if half or less, contract is to be fulfilled but price must be lowered
