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Summary Roman Law 271 Notes
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Extensive notes and summaries on the examinable material in Roman Law 271
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1ROMAN LAW 271
Emptio Venditio (Contract of sale): Class notes – 2018
1 INTRODUCTION
Read through the sources and historical development contained in the lecture framework on emptio venditio.
This will help you to understand the context within which the contract of sale developed. However, the sources
and historical development is not prescribed for the 2017 exam.
2 CONCLUSION
21 Introduction
Preliminary definition of emptio venditio:
Emptio venditio consists of an agreement whereby the seller (venditor) undertakes to deliver undisturbed possession of
the thing agreed upon to the buyer (emptor). The buyer in turn undertakes to pay the agreed price in money.
(NB! Please note that the seller does not undertake to transfer ownership of the thing sold)
Three essential elements
- 1) The thing sold (merx), 2) price (pretium), & 3) consensus (animus emendi et vendendi/ intention of
concluding a contract of sale)
- We will discuss each of these requirements in turn.
22 MERX (subject matter of the sale / thing sold)
The merx had to meet certain requirements
1. The first requirement was that the merx had to be res in commercio – meaning that it had to be something
capable of forming part of our estate (something that could be owned in private ownership).
* In the section on the law of things, we saw that certain things were res extra commercium. These things
could not be sold and a contract of sale for such a thing would be VOID.
* For example res religiosa/sacra (temples, graveyards, city walls, and city gates), a liber homo (free
person) [son or daughter of a patrician / nobleman / noblewoman] and res publica (things for public use
such as theatres, roads, rivers) could not be sold.
* However, it did not matter whether the merx was corporeal or incorporeal. An incorporeal thing such as
an inheritance or a debt could be sold.
* NB – the contract of sale did require a thing to be sold and not a mere service. Accordingly we need to
distinguish between the contract of sale (emptio venditio) and locatio conductio operis. For example
where Aulus asks a goldsmith to make him a ring and Aulus supplies the gold himself the transaction is
© University of Stellenbosch, Department of Private Law, Emptio Venditio Notes 2018.
, 2
not one of sale but of locatio conductio operis. However, if the goldsmith uses his own gold it does
amount to a contract of sale.
2. The second requirement regarding the merx was that it had to exist at the time of conclusion of the
contract. (Possibility of performance)
Thus a thing that cannot exist (exist only in a story or fantasy) cannot be sold. For example a
hippocentaurus (half human/half horse) only exists in fables and a contract that attempts to sell such an
animal is VOID. Another example often used is that of a hippocamelus (half horse / half camel).
The sale of the inheritance of a living person was also not possible.
Neither was the sale of a slave that already died or a thing that has already been destroyed. This would
render the contract void. The buyer can claim back the purchase price with the condictio indebiti.
Thus the general rule was that the merx had to exist at the time of conclusion of the contract but there
was an EXCEPTION – future things (things that had the potential to exist) could be sold. In the case of
future things we need to distinguish between emptio spei (the sale of a hope or a wish) and emptio rei
speratae (the sale of the thing hoped for).
Emptio spei = was the sale of a hope or expectation. For example Balbus buys all the fish that Aulus
with catch with the next throw of his net at 10 coins. This amounts to a gamble. The contract is in favour
of the seller meaning that Balbus (the buyer) has to pay the purchase price even if no fish are caught.
The contract of sale is a bona fide contract (negotium bona fidei) – accordingly if Aulus spends the whole
afternoon sleeping under a tree, Balbus will be able to institute the actio empti (buyer’s action) against
him.
Emptio rei speratae = the sale of the object hoped for. For example Balbus buys all the fish that Balbus
catches will the next throw of this net at 10 aurei per fish. This contract is in favour of the buyer. There
will only be a contract if at least one fish is caught.
How do we determine when it is emptio spei and when emptio rei speratae? We look at the intention of
the parties. The intention can be construed from the manner in which the price is determined – price per
fish (unit) = emptio rei speratae; price per throw = emptio spei.
3. The third requirement of the merx is that it had to be specific (certum).
o This means that a genus sale was not possible. Genus means type. Where a contract of sale only
identified a type the contract was void.
o Aulus cannot buy 3 bottles of wine, but Aulus can buy Balbus’ three bottles of wine. Aulus cannot
buy a slave, but he can buy the slave with the red hair. He cannot buy 100 bags of grain, buy he
can buy those 100 bags of grain (bags pointed out).
© University of Stellenbosch, Department of Private Law, Emptio Venditio Notes 2018.
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o There are two exceptions to the rule that the merx has to be specific namely the limited genus sale
and the alternative sale.
The limited genus sale. The merx is not precisely defined, but at least partially specified for
instance by localising it to distinguish is from a normal genus sale. Eg 10 bottles of olive oil from
my store. The merx is sufficiently specific for a contract of sale to be concluded, but the contract
only becomes perfecta (passing of risk) after the bottles have been individualized. Eg pick out 10
bottles and set it aside. [Additional examples: 3 litres of wine from that vat or 10 bags of grain
from Balbus’ granary – certain enough for valid contract of sale – but only perfecta once
individualised – e.g. when wine poured out into smaller jars (know exactly which 3 litres are being
bought) or when specific 10 bags indicated.]
The alternative sale. Aulus sells to Balbus either his slave Stichus or his slave Pamphilus (more
than two choices possible). The seller makes the choice. Once again there is a valid ctc of sale,
but the ctc remains imperfecta until the merx is individualise ie until the choice is made.
4. The fourth requirement was that the merx could not belong to the purchaser/ buyer – thus not a res
sua (own things) or res emptoris (buyer’s thing)
o If the buyer unknowingly bought his own thing, he could claim back the purchase price with the
condictio indebiti.
o But the buyer could purchase an interest in his own property e.g. Balbus inherits property subject
to a time-clause that property should pass to Caelius after 5 years. Balbus could buy the property
to free it from the restrictive time-clause, or
o Caelius has Balbus’ res in his possession for the greater part of a year. Caelius thus acquired a
possessory interdict. Instead of using the lengthy rei vindicatio, Balbus could buy the possessory
interdict from Caelius.
o Res aliena – the seller did not have to be owner of the merx. He only undertook to give
undisturbed possession and not to transfer ownership. Thus the seller could validly sell as res aliena
(another’s thing) BUT if the purchaser was evicted, the seller was liable for damage with the actio
empti.
Remedies:
What were the consequences if the merx did not meet these requirements?
– The contract was void and the buyer could claim back purchase price with condictio indebiti.
– If the merx was already delivered and the seller wanted to claim it back we need to distinguish between
res mancipi and res nec mancipi.
© University of Stellenbosch, Department of Private Law, Emptio Venditio Notes 2018.
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