Roman Law of Sale: Essentials and Obligations
Sale: Concept
A contract where the seller delivers an item to the buyer, ensuring peaceful possession, and the buyer pays a price in money. Initially, in ius civile, sales were done through mancipatio, exchanging goods for cash. Later, ius gentium recognized sales as consensual contracts, eventually adopted by ius civile, based on good faith.
Characteristics
- Consensual (perfected by consent)
- Good faith
- Bilateral (obligations for both parties)
- Onerous (involving cost)
Requirements
Price
- True or determinable
- In money
- Just (fair market value, especially from Diocletian’s time)
Item
- Legally tradable things and rights
- Present or future items (with conditions)
- Items not owned by the seller can be sold
Contents
Buyer’s Obligations
- Paying the price (unless otherwise agreed)
- Bearing risk of loss after agreed delivery time
- Compensating seller’s preservation expenses if delivery is delayed by the buyer
Seller’s Obligations
1. Deliver the Thing
Preserve and account for fraud, fault, and custody unless agreed otherwise. Ensure the buyer acquires ownership through mancipatio, traditio, or usucaption.
2. Ensure Peaceful Possession
Protect against eviction by the true owner. Initially, double price compensation was available only with mancipatio. Later, contractual provisions or sureties were used. Eventually, the sale contract action itself covered eviction claims.
3. Ensure Enjoyment of the Thing
Protect against hidden defects. Initially, buyers had to be cautious. Later, actio redhibitoria (return of price) and actio quanti minoris (price reduction) were introduced for slaves and animals, extended to all goods by Justinian.