ÆäÀÌÁö À̹ÌÁö
PDF
ePub

THE CONTRACT OF
CONTRACT OF SALE IN THE

CIVIL LAW.

CHAPTER I.

NATURE OF SALE, AND ITS RELATION TO OTHER

COGNATE CONTRACTS.

Definition of Sale. The Contract is consensual and 'synallagmatic,' entailing obligations on both parties. Fundamental points of difference between the English and the Civil Law on the subject. Relation of Sale to Exchange: to Hiring and Letting.

of Sale.

THE Contract of Sale (Emptio Venditio), or more shortly, Definition Sale, is the contract by which two parties promise one another respectively, the one to transfer a thing, the other to pay a determinate price for that thing1. What precisely is meant by the words transfer, thing, price, will be more fully considered hereafter.

The contract belongs to the class known to the Roman The conlawyers as consensual2. With possibly one slight exception, consen

1 Le Contrat de Vente est un Contrat par lequel l'un des contractans, qui est le vendeur, s'oblige envers l'autre de lui faire avoir librement à titre de propriétaire une chose, pour le prix d'une certaine somme d'argent que l'autre contractant, qui est l'acheteur, s'oblige réciproquement de lui payer: Pothier, Contrat de Vente, 1. La vente est une convention par laquelle l'un s'oblige à livrer une chose, et l'autre à la payer: Code Civil, Art. 1582. See a similar definition in Bell's Principles of the Law of Scotland, § 85

2 Code Civil, Art. 1583.

B

tract is

sual,

and synallagmatic.

it is binding on both parties so soon as they are agreed, definitely and without conditions, upon the thing to be bought and sold, and on the price to be paid. How that agreement is expressed is immaterial. It may be done by word of mouth, by messenger, by correspondence, or by conduct no form is necessary 1, nor is part performance ever or in any degree an essential condition of the obligation, as was the case with the contracts which the civilians term Real 2.

The contract is further synallagmatic: that is to say, it must be for the benefit of both parties, and each must be bound 3. It is possible that the obligation of one or other of them may be 'naturalis' only, so that he cannot be sued for breach, while he has the right of enforcing it against the other but if either of them is not bound at all, then neither is the other 4.

From this it is clear, that promises to sell (the other party not being bound to buy), or promises to buy (the other party not being bound to sell), or promises made between A and B respectively to buy of and sell to one another, if required, though they seem to play a somewhat prominent part in the laws of those European countries which are founded on the Civil Law 5, are not enforceable

Est autem emptio iuris gentium, et ideo consensu peragitur: Dig. 18. 1. 1. 2. 2 Dig. 44. 7. 52. I.

3 Ce contrat est synallagmatique, c'est à dire qu'il contient un engagement réciproque de chacun des contractans, l'un envers l'autre, ainsi qu'il resulte de la définition que nous en avons donnée. C'est un contrat commutatif, dans lequel l'intention de chacun des contractans est de recevoir autant qu'il donne: Pothier, 2.

Bona fides non patitur ut, cum emptor alicuius legis beneficio pecuniam rei venditae debere desiisset antequam res ei tradatur, venditor tradere compellatur, et re sua careret; Dig. 19. 1. 50. For a very complete examination of certain cases in which it is alleged by some writers that the contract is unilateral only, or at any ate 'imperfectly bilateral,' see Bechmann, Kauf, §§ 161–186.

5 See Code Civil, Art. 1589, 1590; Demante, Cours analytique de Code Civil, pp. 16-31: Pothier, 476-495: Bechmann, Kauf, §§ 190–195.

in the Roman system; they are merely pacta nuda, and cannot be sued upon.

mental

between

lish and

Two respects in which the Roman differs from the English Fundalaw upon the subject may be mentioned at once. Firstly, points of the law relating to the sale of land is in no way different difference from that relating to the sale of goods; and secondly, the the Engcontract itself never transfers property in the thing sold. In the Civil England, as is well known, and as will be more fully shown Law. hereafter, a contract for the sale of specific or ascertained goods usually ipso facto transfers property therein to the buyer: but the Romans distinguish the sale clearly from the alienation 1, and it will be seen that in their law the contract never operates as a conveyance, though it may in some measure alter the legal relation of the purchaser to the thing which he has purchased.

5

of Sale to

Even those whose study of the Civil Law has not passed Relation beyond its elements will remember the reference in the Exchange, Institutes of Gaius 2 and of Justinian3 to a controversy as to whether Exchange was not a species of sale, and was not governed by the rules peculiar to that contract 1. The jurist Paulus tells us that sale in fact originated in and was a species of exchange. There was a time when money had not been introduced, and when the distinction between the price and the thing sold (merx) was unknown. Men gave what they had to spare for something else of which they stood in need. The inconvenience of this led in time to the invention of Money-pieces of metal stamped with their exchange value by the authority of the State, which impression (rather than their actual cost) represented the measure of their usefulness in commercial transactions".

1 'Alienatum' non proprie dicitur, quod adhuc in dominio venditoris manet: 'venditum' tamen recte dicetur: Dig. 50. 16. 67. 3 iii. 23. 2.

2 iii. 141.

[blocks in formation]

Dig. 18. 1. 1. pr.

6 Eaque materia forma publica percussa usum dominiumque non tam ex substantia praebet quam ex quantitate: Dig. loc. cit. So too

Thus purchase and sale took rank as an independent contract: merx is one thing, pretium is another, and Vendor is distinct from Purchaser: and although the controversy alluded to between the Sabinians and Proculians continued for many generations, it was finally set at rest in A.D. 294 by a rescript of the Emperors Diocletian and Maximian'. By this enactment it was settled that an agreement to exchange one thing for another, instead of for a money price, was not binding on either party until there had been performance on one side accepted by the other: permutatio henceforth definitely belonged to the class of agreements termed by civilians innominate 'real' contracts 2, enforceable by the party who had performed his side of the bargain, but not till then, by an actio praescriptis verbis 3. In a single case an exception to this rule appears to have been allowed. Gaius adverts to an opinion of Caelius Sabinus, that if one man has a thing for sale (venalis) and another takes it, giving another thing' pretii nomine,' the transaction is sale, not exchange: and this doctrine is reproduced in a rescript of the Emperor Gordian. The question which was at issue was of no small practical importance, for it is

4

Papinian says, 'in pecunia [quis) non corpora cogitat sed quantitatem': Dig. 46. 3. 94. I.

2 Dig. 19. 4. 1. 2.

1 Cod. 4. 64. 7. 3 Pothier says (621), 'parmi nous la convention d'échange, dès avant qu'elle ait reçu aucune exécution, et aussitôt que le consentement des parties est intervenu, produit, de part et d'autre, une obligation civile, et elle est un contrat consensuel, de même que le contrat de vente.' So by the Code Civil (Art. 1703) exchange is declared a consensual contract, and with certain exceptions (1704-1706) is regulated by the rules governing sale (1707).

4iii. 141.

Si cum patruus tuus venalem possessionem habeat, pater tuus pretii nomine licet non taxata quantitate- aliam possessionem dedit, idque quod comparavit evictum est, ad exemplum ex empto actionis non immerito id quod tua interest, si in patris iura successisti, consequi desideras: Cod. 4. 64. I.

« ÀÌÀü°è¼Ó »