Summary
Summary Roman Law 271 Study Notes
- Course
- Roman Law 271 (ROMANLAW271)
- Institution
- Stellenbosch University (SUN)
Extensive notes and summaries on the examinable material in Roman Law 271
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1ROMAN LAW 271
EMPTIO VENDITIO (LAW OF SALE) 2018:
ADDITIONAL COURSE INFORMATION
ROMAN Contract of sale (EMPTIO VENDITIO)
1 INTRODUCTION
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.3.1
2 REQUIREMENTS FOR THE CONCLUSION OF A CONTRACT OF SALE
2 1 INTRODUCTION
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.3.1
Recommended: Zimmermann, The Law of Obligations, pp. 230 – 234
The essence of a contract of sale is that the parties agree to sell specified goods for a
determined price. Before a contract of sale can be concluded, the parties need to reach
agreement regarding the goods to be sold and the price to be paid. Thus the three essential
elements for the conclusion of a valid contract of sale are: (a) a merx (subject matter of the
sale), (b) a pretium (price) and (c) consensus or agreement.
The parties are of course free to add any conditions as terms of the contract of sale.
Should this be the case, the obligations from the contract of sale will only arise upon
fulfilment of such a condition or conditions.
22 THE MERX (SUBJECT MATTER OF THE SALE)
221 Things in our estate
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.3.1.2
Recommended: Zimmermann, The Law of Obligations, pp. 234 – 236
The subject matter of a contract of sale must be capable of forming part of our estate or
patrimony. This meant that corporeal things (res corporales), movable or immovable, as well
as res incorporales such as a servitude or a legal claim can form the subject matter of a
© Department of Private Law, Stellenbosch University 2018
, 2
sale. So could an inheritance. A mere service could not form the subject matter of a contract
of sale. Where one person sells a service to another the resulting contract is not one sale
but of services rendered (locatio conductio operis). Thus, where A agrees with a goldsmith
that the goldsmith will make a ring for A from A’s gold, the contract is one of locatio conductio
operis. However, should the goldsmith supply the gold himself, the Proculiani was of the
opinion that the contract was still one of letting and hiring of a piece of work (locatio conductio
operis), whilst the Sabiniani, whose viewpoint prevailed, regarded the transaction as a
contract of sale. Cassius, from the school of the Sabiniani, reached the economically correct
conclusion that in such an instance there is a contract of sale with regards to the material
and a contract of hire with regards to the work. The classical Roman law with its clear
distinction between the different types of contractus each with its own formulae and action
could, however, not accept this solution. Thus, following the Sabiniani, such a contract was
still deemed to be a contract of sale.
You have to know the Latin terms merx (subject matter of the sale)
and pretium (price).
222 The merx must exist at the time of conclusion of the sale
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.3.1.2 (d)
[Non-existent things]
Recommended: Zimmermann, The Law of Obligations, pp. 245 – 249
An important qualification of the subject matter of a Roman contract of sale is that the merx
had to exist at the time of conclusion of the contract. Things that were imaginary or not able
to exist (such as a hippocentaurus [half man half horse] and the inheritance of a living
person) as well as things that no longer existed at the time of conclusion of the contract
(such as a house that burnt down) could not form the subject matter of a sale. This rule is
an application of the wider principle impossibilium nulla obligatio est (there can be no
contract to do the impossible). According to D 18 1 57 and 58 it might make a difference if
one or both parties knew about the fire or that the subject matter (house or grove) was totally
or partially destroyed. Please note that in these circumstances one is actually dealing with
mistake (error). (See below).
There existed an exception to the rule that the subject matter had to exist at the time of
conclusion of the sale, the exception concerned so-called future things such as where the
next harvest of a certain piece of land was sold or the wine to be pressed from a certain
© Department of Private Law, Stellenbosch University 2018
, 3
vineyard. The Romans distinguished between two types of sale with regards to future things
namely the emptio spei (the sale of a hope or a wish) and the emptio rei speratae (the sale
of a thing hoped for). In the case of the emptio spei, such as where all the fish to be caught
by the fisherman in the next throw of the net is sold, the parties are in agreement that it is
not the thing that is sold, but the hope or wish. Even if no fish were caught, a valid contract
of sale was in existence, and the fisherman could enforce payment of the purchase price.
The thought that a spes could also be regarded as a res, that is to say a res incorporales,
also played a role here (See Voet 18 4 9). In the case of an emptio rei speratae, such as
where the potatoes that a certain piece of land will yield is sold at a certain price per unit,
the contract of sale will be void if the land yields no harvest because no contract of sale can
come into existence without a merx. The emptio rei speratae is regarded as a conditional
contract that becomes unconditional once the merx comes into existence. According to D
18 1 8 pr the buyer could address the seller with the actio empti for his fraud if the seller
prohibited the merx from coming into existence. It is not always easy to distinguish between
an emptio spei and an emptio rei speratae. The emptio spei works in favour of the seller
who is assured of his payment even if the future thing does not materialise, whilst the emptio
rei speratae works in favour of the buyer who at least has to receive something for his
money. In order to distinguish whether in a particular circumstance one is dealing with an
emptio spei or emptio rei speratae, the intention of the parties upon conclusion of the
contract need to be carefully examined. Where the price is determined in proportion to the
yield, such as 10 aurei per bag of wheat or per vat of wine, the sale in question is one of
emptio rei speratae; where the price is determined as 10 aurei per acre or as 10 aurei for
the whole harvest the sale in question is an emptio spei (See Nicholas 173 & 174).
Summary: one of the requirements for the merx was that it had to
exist at the time of conclusion of the contract. The exception to
this rule was the sale of future things. Here you have to be able
to distinguish between emptio spei and emptio rei speratae.
223 The merx must be specific
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.3.1.2 (f)
[Generic things]
Recommended: Zimmermann, The Law of Obligations, pp. 236 – 241
The fact that the Roman contract of sale developed from barter or cash sale, gave rise to a
further restriction with regards to the subject matter of the sale, namely that it had to be
© Department of Private Law, Stellenbosch University 2018
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