Экзамен зачет учебный год 2023 / dozhdev-good-faith-and-price-payment
.doc
Dmitri
Dozhdev
“Fidem emptoris sequi”:
Good Faith and Price Payment
in the Structure of the Roman Classical Sale*
The coordination of subjective and objective dimensions of the good faith (bona fides) present in the Roman legal thought and institutions can be eloquent of existence of objective indicators and compensators of the operating subjective factor of the legal interaction. Within the system of ownership transfer the Roman law texts view the good faith as a constitutive factor of the relationship that assures the resulting real right of the acquirer. The subjective belief of the acquirer in his right to the thing was regarded as capable to compensate the deficiencies of the legal position of the alienator as well as the formal inconsistencies of the transfer. The same endeavour to attain the highest degree of stability and predictability that is proper to the contract system and to ensure the parties’ ability to rely upon the binding effect of the contract is reflected in the perception of bona fides as an indicator of a definite role assumed by each party. The very presence of the concept under study in one line with the payment of the price and securities of the performance reveals the objective character of bona fides as of a form of institutionalization of the normative expectations of a participant at the civil turnover and makes it a necessary constituent of main civil institutions. This objective and normative operating of bona fides dictates a correlated approach to the study of the complicated issues of the Roman legal history.
I. 2,1,41:
...(res) venditae vero et traditae not aliter emptori adquiruntur, quam si is venditori pretium solverit vel alio modo ei satisfecerit veluti expromissore aut pignori dato, quod cavetur quidem etiam lege duodecim tabularum: tamen recte dicitur et iure gentium, id est naturali, id effici. Sed si is qui vendidit fidem emptoris secutus fuerit, dicendum est statim rem emptoris fieri.
Pomp. 31 ad Q.Muc. D. 18,1,19:
Quod vendidi non aliter fit accipientis, quam si aut pretium nobis solutum sit aut satis eo nomine factum vel etiam fidem habuerimus emptori sine ulla satisfactione.
The rule affirmed here is in sharp contradiction to the well-known principle that traditio - irrespectively of its causa - was sufficient for the transfer of ownership by itself (Gai 2,19-20). This prinsiple in the field of sale is attested from the times of Q.Mucius (D. 18,1,40) till Diocletian (C. 3,32,12 a.293; C. 4,38,8, a.294)1. The dependence of the transfer of ownership by sale on the payment developed only in the postclassical period (Cth. 5,10,1, a.319; Vat. Fragm. 34, a.326; Paul. Sent. 2,17,13 and interpretatio 2,18,10) - whether under the influece of hellenistic commercial forms2, or within the general process of vulgarization of Roman law in the IV century AD3.
The scholars who took the texts literally discussed them in one of two ways. Some of them admited that in the Roman law the transfer of ownership depended on the payment of the price. The corrollary would mean the denial of the authenticity of those texts which explicitely negated such correlation. Others considered this rule as postclassic and, therefore, all the body of evidence under study was held to be a product of subsequent interpolations.
The texts demonstrate that the rule was regarded as ancient. I. 2,1,41 presents it as a principle common to ius gentium and ius naturale and at the same time makes a direct reference to the XII Tables, which should be understood as rather an indication at the established interpretation of the decemviral provision.
Today nobody denies the autenticity of the evidence4. Even F.Pringsheim, who in the early 1900s had insisted that I. 2,1,41 had no parallels in the classical sources5 (it is absent in "Res cottidianae" - D. 41,1,9,3-4, which C.Ferrini6 had argued to be a source for the Justinian’s Institutions), subsequently agreed on the existence of the old rule that connected the transfer of ownership with payment7.
Now the predominant view follows the perspective advanced by G.v.Beseler in 19348 that the rule had been laid down by the XII Tables not for the transfer of ownership, but for actio auctoritatis. Approved by V.Arangio-Ruiz9, this approach quickly found many adherents and became comunis opinio in the romanistic studies10. In fact, G.v.Beseler’s interpretation has failed to resolve the problem posed by the texts and rather substitutes one unknown with another11, which is still drifting in the murkey waters of unclear methodology. Namely, the difficulties of the correlation between the payment or other form of accomplishment of the contract on the side of purchaser and his definite entitlement to the thing bought are substituted with the reference to the well known rule that the acceptance of the price was indispensable for the liability of the vendor for eviction (D. 19,1,11,2; Paul. Sent. 2,17,1: "pretio accepto"). This pseudo-solution apparently denies any succession between the preclassical and classical textual tradition. It seems very unlikely that the right of the buyer to claim the double amount of price in case of eviction could have been expressed with the reference to a real belonging of the thing. When the idea of real right is not infrequently rendered by the Roman jurists in the terms of procedural means, it implies actio in rem, and not that in personam12.
The proposed interpretation does not fit with all three conditions (pretii solutio, satisfactio, fidem emptoris sequi), mentioned in the texts. Hence, the common acceptance of the decemviral origin of the rule does not extend to "fidem emptoris sequi"13. Since L.Enneccerus14 this element was held alien to the original wording of the text. The argument based on the logical inconsistency of this condition with the others, as they are imposed by the rule, persists. If a vendor has not received the price and even has not demanded any security for that, this implies his undisputable trust to the byer15. Therefore, the phrase on "fidem emptoris sequi" apparently nullifies the rule16.
The presence of "fidem sequi" in the classical original text is, however, confirmed by D. 18,1,19 where the set-phrase "fidem habere" is present. Though the use of introductive "vel" after "aut", the change in the verbal forms from singular to plural allow to suppose an interpolation17, there still exist strong arguments in defence of the text. The anonymous scholia to Bas. 18,2,5 (Zachariae. Suppl. (1846), 184, sch.42) confirms that the D. 18,1,19 contained "fidem sequi", and shows that even D. 18,1,53 originally mentioned the same element. The latter text is usually regarded as the source for I. 2,1,41, as there is the literal coincidence in the wording of both texts.
Gai. 28 ad ed.prov. D. 18,1,53:
Ut res emptoris fiat, nihil interest, utrum solutum sit pretium an eo nomine fideiussor datus sit. quod autem de fideiussore diximus plenius acceptum est: qualibet ratione si venditori de pretio satisfactum est, veluti expromissore aut pignore dato, proinde sit, ac si pretium solutum esset.
As it was convincingly pointed out18, the observance on the interpretation ("plenius acceptum est") could not have been invented by the compilers. This is a reliable indicator of the original presence of "fidem sequi" in the D. 18,1,19. The authencity of pretii solutio becomes, thus, clear. The break in the exposition before "fidem sequi"19, observed in the D. 18,1,19, as well as in I. 2,1,41, can be easily explained by reference to the interpretation of the previous condition (satisfactio), which could be present in the original text.
Accepting the autenticity of the reference to the XII Tables, M.Marrone came to the conclusion that "fidem emptoris sequi" marks a mitigation of the old principle, since the vendor preserved his capacity to recover the thing when the payment was absent. Both theories suggest that the change had occured with the establishment of consensual sale, while the previous construction of Roman sale was close to the original structure of the mancipation, when it was a sale for ready money20. Since the alleged change is seriously questioned by contemporary scholarship21, it means that the early origin of the rule, fixed by the classics as related to the obligatio auctoritatis (D. 19,1,11,2; 19,1,13,9; Paul. Sent. 2,17,1), is also under doubt. The use of the mancipatio nummo uno even in cases, where a valid price was expected (as attested by the formula Baetica22), shows that the obligation against eviction amounted to the price nominated by the mancipation rite (pecunia nuncupata), and was, thus, independent from the real payment. The predominant theory still demonstrates a number of significant inconsistencies.
Another widely diffused interpretation of "fidem sequi" treats these words as an evidence of crediting of the price, and it is believed posterior to the XII Tables23. A.Bürge’s recent attempt to insert the rule under study into his innovative concept of a role of money in a society based on natural economy advocates the same approach24. His theory starts from the assumption of the lack of cash money in Rome and finishes with affirmation that this drawback of the comercial turnover was mitigated by a particular system of credit, where the transfer by sale was used to create the currency (Geldschöpferung). The conception reveals an intimate logical connection between pretii solutio and satisfactio, but fails to explain the notion of "fidem emptoris sequi" (as we shall see) and does not offer convincing interpretation of the rule.
According to A.Bürge, the texts under analysis (I. 2,1,41; D. 18,1,53) do not contradict to the known principles of sale in the Roman law and can be well understood in the cases when the thing bought is taken in precarium or in hire by a purchaser, untill the price is paid. A.Bürge refers to the following texts:
Iav. 7 ex Cassio D. 18,6,17:
Servi emptor si eum conductum rogavit, donec solveret, nihil per eum servum adquirere poterit, quoniam non videtur traditus is, cuius possessio per locationem retinetur a venditore. periculum eius servi ad emptorem pertinet, quod tamen sine dolo venditoris intervenerit.
Iav. 11 epist. D. 19,2,21:
Cum venderem fundum, convenit, ut, donec pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet: an soluta pecunia merces accepta fieri debeat? respondit: bona fides exigit, ut quod convenit fiat: sed non amplius praestat is venditori, quam pro portione eius temporis, quo pecunia numerata non esset.
Ulp. 2 resp. D. 43,26,20:
Ea, quae distracta sunt, ut precario penes emptorem erant, quoad pretium universum persolveretur, si per emptorem stetit, quominus persolveretur, venditorem posse consequi.
Ulp. 35 ed. D. 27,9,1,4:
Si minor viginti quinque annis emit praedia, ut, quoad pretium solveret, essent pignori obligata venditori, non puto pignus valere: nam ubi dominium quaesitum est minori, coepit non posse obligari.
Actually, the major part of these texts envisage the cases when the contract enters in force from the moment of its conclusion (emptio perfecta). The periculum passes to the side of the purchaser (D. 18,6,17), and when traditio is performed (D. 27,9,1,4) the transfer of ownership is beyond doubt. In the cases when the ownership did not pass to the buyer on the delivery of the thing, no traditio emptionis causa has taken place ("non videtur traditus"), for it is viewed as impossible to regard the passage of a mere detention (as by hire) or of precarious possession (which is qualified by Roman jurists as "possessio vitiosa" and sometimes even as "possessio naturalis" - D. 10,4,3,15) in terms of traditio ex iusta causa. The emptio, thus, is perfect. It is the enclosed agreement on precarium or hire that is conditioned by the payment of total price25. These relationships are to exist, untill the total price has not been paid26. Accordingly, there is no connection between the future change in causa possessionis on the side of the buyer and the crediting of the price.
The use of this set-phrase in our sources does not suggest that it ever had the alleged meaning "to give (the sum of money) in credit", "to agree to consider the price as credited". The forms of sale in credit in the Roman law are well known. If lex commissoria had been intended in the D. 18,1,19 (and I. 2,1,41), there would have been no need to render it in such peculiar terms. R.Feenstra’s careful study of the set-phrase "fidem sequi" confirms this conclusion. The set-phrase is found mainly in the context of depositum27, commodatum, pignus, mandatum (and fideiussio), and, besides these, fideicommissum28.
D. 45,2,9 pr: Eandem rem apud duos pariter deposui utriusque fidem in solidum secutus, vel eandem rem duobus similiter commodavi.
D. 12,1,1,1: ...nam ut libro primo quaestionum Celsus ait, credendi generalis appellatio est: ideo sub hoc titulo (scil. "de rebus creditis") praetor et de commodato et de pignore edixit. Nam cuicumque rei adsentiamur alienam fidem secuti mox recepturi quid, ex hoc contractu credere dicimur.
D. 42,5,24,2: ...qui pecunias apud mensam fidem publicam secuti deposuerunt.
D. 3,2,6,5: "Mandati condemnatus" verbis edicti notatur non solum qui mandatum suscepit, sed et is, qui fidem, quam adversarius secutus est, non praestat. ut puta fideiussi pro te et solvi...
The latter text implies that the normative expectations of the creditor were not that of receiving just back the thing given (like the D. 12,1,1,1 may be understood), but that of the conformity of the counterparty to the principles of legal interaction (cfr. in the field of deposit D. 16,3,1,4: "fidem elegit"). Actually, it is malversation (perfidia), what is sued.
D.3,2,6,7: Contrario iudicio damnatus non erit infamis: nec immerito, nam in contrariis non de perfidia agitur, sed de calculo...
The famous text on the necessary deposit29, perhaps, the most eloquently testifies to the purpose.
D. 16,3,1,4: ...crescit perfidiae crimen et publica utilitas coercenda est vindicandae rei publicae causa: est enim inutile in causis huiusmodi fidem frangere30.
The "fides publica" in D. 42,5,24,2 appears to be connected with that ideology. The appeal to the ius naturale and ius gentium in I. 2,1,41 could be inspired by these principles as well.
D.50,17,84,1: Is natura debet, quem iure gentium dare oportet, cuius fidem secuti sumus.
One more text in the Digest regards receptum nautarum etc. (D. 4,9,11): ...necesse est plerumque eorum fidem sequi et res custodire eorum committere.
The meaning of "fidem sequi" in D. 12,1,1,1 and D. 4,9,11 apparently does not equal to crediting and appears in both texts as a term which is structurally separated from the description of the content of the transaction: "cuicumque rei adsentiamur... mox recepturi quid"; "res custodiae eorum committere". The same distance could be observed in D. 50,17,84,1, where "iure gentium dare oportere"31 is separated from "fidem sequi".
In all these cases it is the creditor who excercises "fidem sequi". The creditor’s normative expectations depend upon the conformity of another party to the assumed formal role. The transaction becomes possible due to the will of one party to recognize another person in a definite role and to the corresponding agreement of another to assume a role expected from him. In this light, "fidem sequi" can be more correctly rendered as "to rely upon smb.’s conformity to the model of behaviour implied by the contract", i.e., "to recognize other person in the role of an adequate counterparty to the concluded relationship". The constitutive effect of "fidem sequi" that is indispensable for individualization of the role of a party to the contract, is disclosed by Gai 4,70, where "fidem sequi" refers not to any specific transaction, but to a particular situation of representation, as provided by the praetorian edict on actio quod iussu:
...itaque si iussu patris dominive negotium gestum erit, in solidum praetor actionem in patrem dominumve conparavit: et recte, quia qui ita negotium gerit, magis patris dominive quam filii servive fidem sequitur.
The remaining three cases of use of "fidem sequi" in the Digest belong to the field of fideicommissa: the testator who entrusts some duty to the heirs, relies on their personal fedelity.
D. 42,8,19: plenam fidem ac dibitam pietatem secutus
D. 38,5,47: ipsum testatorem fidem eius secutum esse probaretur
D. 36,2,26,1: fidem ab heredibus petendum, qui pecuniam dari stipulari debuerunt sed fideiussores ab eo non petendo, cuius fidem sequi defunctus maluit.
In the latter case the testator’s voluntas which lies at the base of the choice of person that is agreeable to the creditors, is regarded sufficient on the ground that the creditors trusted him as well (cfr.D. 35,2,46: voluntatem testatoris secutus spopondit se daturum; Paul. Sent. 4,3,4: fidem defuncto praestare).
The same constitutive effect of "fidem sequi" is envisaged in Ulp. 40 ed. D. 40,5,4,8, where the set-phrase "fidem habere" is used:
<et> si ei fides habita fuerit promittenti sine satisfactione, idonee cautum videri.
Here the words of the constitutio divi Marci (D. 40,5,2; I. 3,11,2) "ideonee cavere" are discussed. The constitution prescribed that if in the case of libertas fideicommissaria the hereditas was not taken by anyone entitled to it, it should be adjudicated ("addici") to a libertus who was ready to give an adequate guarantee ("ideonee cavere") to the creditors, i.e. to effectuate satisdatio or to constitute a pledge. At the same time, if the creditors regarded the libertus a reliable person, no satis- or pignoris datio was to be demanded from him.
In the last cases the meaning of the set-phrase "to create obligation", "to impose duty" is excluded. It means "to establish someone in the role of reliable (idoneus) debtor".
The set-phrase "fidem habere" has the meaning that corresponds to "fidem sequi" only in this text (besides D. 18,1,19). In the major part of the cases it refers to the credibility of testimony (D. 11,1,11,1; 22,5,3,1; 2; 48,18,1,24; 26; cfr. D. 22,5,3,5: ad (testimonii) fidem admittere). In the other texts (D. 4,4,13; 26,7,3,8; 46,3,39) the meaning "to have confidence to smb.", "to trust smb." is easily recoverable. This induces the scholarship to deny any tecnical meaning of the clause. Even R.Feenstra suggested that the set-phrase in I. 2,1,41 implied such situation, when the seller had not taken from the buyer any guarantee, being satisfied with the measures resulting from the very contract of sale32. Such interpretation implies that the rule has literal meaning as it is present in the Justinian’s Institutions and leads, thus, to the same difficulties as other solutions of such kind.
However, the revealed meaning "to recognize other person in the role of an adequate counterparty to the concluded relationship" corelates with the notion of fidem praestare that is frequent in juridical texts since Q.Mucius (Pomp. 16 ad Q.Muc. D. 27,5,4)33 and represents a recurrent corrolary to the set-phrase under study (Ulp., 6 ad ed., D. 3, 2, 6, 5: qui fidem, quam adversarius secutus est, non praestat). This fact favorizes the new attempt to find a feasible explanation of "fidem emptoris sequi" clause.
The connection of the rule with the name of Q.Mucius34 made by D. 18,1,19 allows us to regard the principle as one of generalizations of the commercial practice current in the times of veteres. The terms in which the rule is formulated should be analized as an expression of the interpretative efforts of the jurisprudence of the II century BC. To the same epoch belongs another authoritative manifestation of the legal principle and practice connected to the name of P.Rutilius Rufus, a member of Scipio’s circle35, and known as constitutio Rutiliana36. Our knowledge of it is rather scanty37, actually not more than the text which mentions it. However, careful analysis of this text seems to confirm the diffusion of conceptual correlation between the price payment and legitimation of the position of acquirer in the II century BC.
Vat. Fragm. 1 (Paul. 8 ad Sab.)38:
<Si mulieris> sine tutoris auctoritate sciens rem mancipi emit vel falso tutore auctore quem sciit non esse, non videtur bona fide emisse, itaque et veteres putant et Sabinus et Cassius scribunt. Labeo quidem putabat nec pro emptore eum possidere, sed pro possessore; Proculus et Celsus pro emptore, quod est verius: nam et fructus suos facit, quia scilicet voluntate dominae percipit et mulier sine tutoris auctoritate possessionem alienare potest. Iulianus propter Rutilianam constitutionem eum, qui pretium mulieri dedisset, etiam usucapere et si ante usucapionem offerat, desinere eum usucapere.
The text deals with the case of purchase of res mancipi from a woman when the auctoritas tutoris was deficient and the acquirer was aware of it ("sciens", "falso tutore auctore quem sci[i]t <tutorem> non esse"39). The veteres and the founders of the clasical juridical schools agreed not to consider such purchaser as the one in good faith. Labeo even qualified his possession as "pro possessore", obviously, refusing to recognize a valid emptio in this case. The absence of bona fides has the same effect here, like in the case of intentive purchase from non-owner envisaged by Julian (D. 41,3,33,1: "pro possessore possidebit").
The interpretation changes with Proculus, who suggested that the title "pro emptore" was possible, recognizing, thus, valid emptio in this case. The decision of Proculus, adopted by Celsus, might have been inspired by the strict interpretation of emptio as of a contract which assures to the acquirer no more than a possession of the thing bought. The reasoning: "mulier sine tutoris auctoritate possessionem alienare potest" should belong to the Proculeans, as the Sabinians were of the opposite view, as we are informed on the purpose of pupillus (D. 41,1,11: alienare vero nullam rem potest nisi presente tutore auctore, et ne quidem possessionem, quae est naturalis, ut Sabinianis visum est). This approach is consistent with the refusal to regard permutatio as a kind of emptio (Gai 3,141; D. 18,1,1,1) and to recognize emptio in the case where both obligations arisen from bilateral transaction were dare (Cels. 3 dig. D. 12,4,16). By sale the obligation of one party (venditor) is limited to facere ("vacuam possessionem praestare")40. It is not surprizing, then, that Paulus who follows this doctrine as regards emptio (D. 19,4,1 pr; 3 pr; 19,5,5,1), agrees with the Proculean approach to the case presented in Vat. Fragm. 1 (D. 18,1,27). The famous formulation of the conceptual distinction between causa possessionis and causa usucapionis, where the last term seems to have been used for the first time in the Roman juridical literature41 belongs to the same Paul (D. 41,4,2,1)42: Separata est causa possessionis et usucapionis: nam vere dicitur quis emisse, sed mala fide: quemadmodum qui sciens alienam rem emit, pro emptore possidet, licet usu non capiat. As the entitlement of the purchaser to the fruits envisaged in the Vat. Fragm. 1 shows, the Proculeans regarded him as bonae fidei emptor and recognized that the transaction had given rise to a valid emptio.
There is only one apparent contradiction of this conclusion to the Paul’s decision (D. 41,4,2,16) on the case of a purchase in good faith from a lunatic (furiosus), which was regarded by the jurist invalid ("emptio nulla"). At the same time, the woman differs from the lunatic by some very important characteristics. She is aware of her own interests, possesses her own will and can make decisions (cf. Gai 1,115)43. The reasoning in Vat. Fragm. 1: "scilicet voluntate dominae percipit", which is approved by Paul, catches the point.
The same, though on different ground, can be observed with regard to Julian’s decision (D. 41,3,33,1) for the seemingly near case of mala fide purchase non a domino. In that case the buyer was aware of the deficiency of the title of the seller. The situation presented in Vat. Fragm. 1 differs considerably. The woman is owner of the thing ("domina")44 and, from that point of view, the purchaser acts bona fide. Hence, Julian is ready to share the Proculean approach and even tries to develop it by admitting usucapio for the purchaser. If the emptor may be regarded as bonae fidei and the title "pro emptore" exists, it would be logical to elevate the effect of emptio to usucapio. The only obstacle for such decision is formed by direct prohibition of the law (Gai 2,47; 80): res mancipi cannot be alienated by a woman if they were not sold and delivered tutore auctore.
It is quite unlikely that Julian’s decision was facilitated by the lex Claudia, which abrogated tutela legitima in the middle of the I century AD. Proculus, who was active at that time did not went so far. Neither did Celsus, Julian’s elder contemporanian. Even Gaius, who in Gai 2,80 describes the situation present at his days (as the use of present forms instead of perfect ones, like in Gai 2,47, seems to imply), did not consider lex Claudia to have taken off the prohibition on alienation without auctoritas tutoris. The fact that Julian directly appeals to the constitutio Rutiliana shows that his decision was due to extraordinary interpretative effect and could hardly result as a mere consequence of the lex Claudia.
The constitutio Rutiliana which Julian referred to does not seem to have been applied to the case of alienation of res mancipi by a woman under tutela legitima. If the case were such, there would have been no need for Julian’s decision. It appears more likely, that the rule established by P.Rutilius was somehow connected with the payment by purchase, for it constitutes a seemingly alien element withtin the structure of Julian’s opinion. If a thing is bought, it is quite normal and natural that the purchaser pays for it (irrespectively of being in a good faith or not). The role attributed to the price payment in this case is apparently exagerated. Julian, however, insists on its binding force holding that the eventual return of money to the purchaser could interrupt his usucapio. The role of the payment is logically connected with the voluntas dominae45, which indeed has potential to legitimize the normative expectations of the emptor. The return of the money would have been equal to the refusal from the role, which had been adscribed to the counterparty with the payment (and respectively assumed with reception).
The simingly parallel approach is present in Ulp. 15 ed. D. 5,3,13,8: nemo enim praedo est qui pretium numeravit, - where the statement is aimed to detect the title of a possessor. In the circumstances that the price had been paid, the causa possessionis could have not been regarded as "lucrativa" and the title qualified as "pro possessore". The principle operating in the title "pro suo" is in direct opposition to the cases of "clam possidere" (D. 41,2,40,2), "rem pro furtiva possidere" (D. 41,3,32 pr). This opposition may be tecnically rendered in terms of "ex causa lucrativa possidere" - "bona fide possidere" (Iul. 44 dig. D. 41,3,33,1: quis sciret se bona fide non possidere et lucri faciendi causa inciperet possidere; Gai. 21 ad ed. prov. D. 41,3,5: pro suo quisque possideat an ex lucrativa causa; Gai 2,56: sciens quisque rem alienam lucri facit) and traced back as far as Proculus46.
The crux of Julian’s decision is not bona fides of the purchaser - as it is already had been envisaged by Proculus and Celsus - but the lack of auctoritas which obstacles usucapio of res mancipi alienated by a woman. The correlation between numeratio pecuniae and auctoritas was recovered by jurist from an earlier rule that had been established in the period of veteres.
The payment, which equals to the execution of the buyer’s duty and performs the normative role ascribed to him, - assumes the function of qualifying the counterparty in the seller’s role. This relevance of the "factum emptoris" is detected in the constitutio Rutiliana that established pretii solutio in a function of recognition (and compensation, if neccessary) of auctoritas of the seller.
The meaning of "fidem sequi" revealed above as "to rely upon smb.", "to recognize a person in a role that is adequate to the juridical link to be established between the parties" attributes the same relevance to the acts of the buyer previewed in I. 2,1,41, namely, pretium solvere and satisfacere. As observed on the base of D. 18,1,53, not all elements, ennumerated in I. 2,1,41 (D. 18,1,19) as conditions of the transfer, had been originally envisaged by the rule. With the exclusion of satisfactio47, two actions are expected on both sides of the relationship. The buyer pays price (thus, establishing the auctoritas of the seller), the seller - from his part - ascribes necessary fides to the buyer (thus, constituting the buyer in the role of a new owner of the thing). The normative relevance of subjective activity of the seller in establishing the real effect of the emptio cannot be reduced to the delivery, because the action of fidem sequi is taken prior to (and independently of) the implementation of the obligation, i.e., already at the stage of stipulating the contract.
The following text points in this direction.
Ulp. 29 ed. D. 14,4,5,18:
Sed si dedi mercem meam vendendam et exstat, videamus, ne iniquum sit in tributum me vocari. et si quidem in creditum ei abii[t] , tributio locum habebit: enimvero si non abii[t], quia res venditae non alias desinunt esse meae, quamvis vendidero, nisi aere soluto vel fideiussore dato vel alias satisfacto, dicendum erit vindicare me posse.
The verbal form "abiit" that is present in the best MSS is traditionally substituted with "abii" according to Bas.18,2,5,18. The resulting coincidence in the personal forms of the verbs that express both transactions: "didi mercem meam vendendam" and "quamvis vendidero", - caused difficulties in interpretation, which are not always easily resolved. Since the formulation of regula in the first person form is usual, the coincidence of agents of datio and venditio is not necessarily implied. Nevertheless, the words "quia - satisfacto" were considered as interpolated, for being completely alien to the case’s matter48. If the transaction is decribed like the goods that are given for sale, the classic jurist after that could not possibly discuss it in terms of sale and possible transfer of property49.On the contrary, the person in power, to whom the goods were given for sale can be viewed as an almost natural agency of the further venditio. Hence, "in creditum abii" results alien to the act of sale and referred to the person, who had effectuated datio mercium vendundarum.
The text deals with actio tributoria, one of the so-called actiones adiecticiae qualitatis, which allowed to sue pater familias (or dominus) for the obligations assumed by filius (or slave) while running the buiseness at the knowledge of his pater. (Gai 4,72: sciente patre dominove negotietur; D. 14,4,11; D. 14,4,1 pr: si scierit servum peculiari merce negotiari). Unlike the case of actio de peculio, by actio tributoria no preferred creditors were present and all of them (pater including) took part at the distribution of peculium on the equal base (D. 14,4,5,19: pro rata). The action implied limited liability: the pater could be sued to the amount of the capital committed by the affairs of his person in power (Gai 4,72; D. 14,4,5,6: Per hanc actionem tribui iubetur, quod ex ea merce et quod eo nomine receptum est)50. Usually, the amount of liability, was estimated regarding the goods present in taberna, so that already Pedius had decided that pater could avoide the trial and distribute among the creditors not the price of the goods, but the goods themselves (D. 14,4,7,1). If the goods present in taberna were object of a particular affair (mecres certae), they would have been extracted from general mass and attributed to a definite creditor ("separatim" - D. 14,4,5,15-16). The same pattern was applied if some goods had been pledged to a creditor (eod. §17). But once merces were usually hold in one taberna, even if those present ("hae quae exstent") had been bought for the money of one determined creditor, the latter had no preference and all the assets were distributed among all creditors ("omnes in tributum venire" - §17 in fin).
Our text (§18) provides a case when the goods present in taberna were given to a person in power for sale. The sale had been concluded ("quamvis vendidero"), but the goods had not been delivered at the moment when the action was brought in (evidently, by other creditor). Since neither the price had been paid, nor any security given from the part of the buyer as well, our creditor was still able to recover the goods by rei vindicatio. This was possible, however, on the condition that the goods had not been given by him for sale through a particular transaction termed in the text "in creditum abire". If, on the contrary, the transaction was different ("si quidem in creditum abii"), the creditor could only take part at the tributio in turn with the others.The sense of the words "in creditum abire" is not so clear as the effect of the transaction they describe. When one of later commentors (Bas. 18,2,5,18) suggests as equivalent "έι μήν τήν δεσποτείαν μετέθηκα", it is clear that what is given is the obvious interpretation and not the translation from Latin. Had the expression meant "to transfer ownership", there would have been no need of further discussion. B.Albanese recognized such meaning to constitute unicum for the language of Ulpian51: usually the set-phrase "res in creditum iit" is used52 (e.g.D. 34,2,27,2 and the famous D. 19,2,31).
V.Arangio-Ruiz53 held that "in tributum vocari" could in principle be applicable only to dominus and that the goods were given for sale to a slave by his master. He, accordingly, suggested that rei vindicatio was brought against the creditors of the slave who held the possession of taberna, as if a liquidation of the enterprize had been in course. If such executive procedure had ever existed54, it would have remained the same difficulty to explain the fact, how dominus could have transfered ownership to his own slave. The wording of the text finds an unforced solution, if it is admitted (in complete harmony with the context) that the creditor was a person different from the slave’s master.
The text distinguishes two variants of rem vendendam dare. In one case the ownership is transferred (to the slave’s master) at once. In another - it is not, and the creditor remains, thus, entitled to rei vindicatio untill the goods have been sold and delivered. The first situation could be compared to that envisaged in D. 14,6,3,3 by the same Ulpian (Ulp. 29 ed.), where a practice of latent crediting of the filii familias after the SC Macedonianum is discussed:
...et ideo etsi in creditum abii filio familias vel ex causa emptionis vel ex alio contractu, in quo pecuniam non numeravi, etsi stipulatus sim: licet coeperit esse mutua pecunia, tamen quia pecuniae numeratio non concurrit, cessat senatus consultum. quod ita demum erit dicendum, si non fraus senatus consulto sit cogitata, ut qui credere non potuit magis ei venderet, ut ille rei pretium haberet in mutui vicem.
The words "magis ei venderet" show that there is no true emptio in this case, like the words "pretium haberet in mutui vicem" are eloquent of the absense of mutuum. When there was no "pecuniae numeratio", no real mutuum could have been recognized 55. The words "in creditum abii" actually stand for concluding a transaction which gives rise to the obligation "dare certam pecuniam". The peculiar feature of this case is that the obligation can be sued with the means different from actio certi (hence the practice of stipulation: "etsi stipulatus sim").
The crediting in the form of delivery of goods for sale ("dedi tibi rem vendendam, ut pretio utereris") was recurrently analysed by Roman jurists. Labeo, according to Ulpian (D. 19,5,19 pr; 19,5,17,1), did not see in this neither venditio, nor mutio datio, and proposed actio praescriptis verbis 56 "quasi negotio inter nos gesto proprii contractus". Such form of crediting (D. 12,1,11 pr; 19,5,19 pr) was later treated as aestimatum (D. 19,5,17,1; Paul. Sent. 2,4,4) with particular consideration for the distribution of periculum. The risk was ascribed to the party, which took the initiative at the transaction (Labeo in D. 19,5,17,1). The situation when the things were given for sale was qualified by Neratius as mandatum (D. 12,1,11 pr). No Roman jurist ever regarded the arrangement in terms of venditio, which would have been inevitable, if the rule under study implied the crediting of a price (in terms of "fidem sequi").
The very discussion on periculum shows that the ownership does not pass by the aestimatum agreement. Even if the effect of transaction was that the price resulted credited, it was juridically impossible to qualify the transaction as mutuum when there had been no actual transfer of money.
The transaction discussed in D. 14,6,3,3 nears aestimatum, but with transfer of ownership to the goods. The use of the same term in D. 14,4,5,18 implies the same result - according to the current interpretation.
Even the second situation, when there was no "in creditum abire", can be viewed as a kind of aestimatum, as envisaged in Ulp. 32 ed. D. 19,3,1,1: aut igitur ipsam rem debebit incorruptam reddere aut aestimationem de qua convenit. The text doubtfully refers to the aestimatum in its established form57. What is to be considered here, is the very possibility of such an arrangement, by which the recipient takes the goods for evaluation and incurs the obligation to restore either goods or amount at which they was valued. The situation can be better understood in terms of venditio (and traditio) ex voluntate domini (D. 39,5,9,2) and approximates, thus, the mandate58.
The transfer of property by sale discussed in D. 14,4,5,18, is that from the creditor to the buyer59. Since the creditor himself is not bound by the contract of sale, the words "in creditum abii" give no parallel to "fidem emptoris sequi". But what can be deduced from the text under analysis, is that the situation is viewed in procedural terms and "desinunt esse meae" on the side of the vendor equals the impossibility to claim the goods (D. 34,2,27,2: non videtur suum esse, quod vindicari non possit). In the absense of payment from the part of the buyer, given that traditio from the seller was not effectualted as well - re integra - the creditor (mandator) still had the possiblitity to change his mind and to stop the transaction.
The role of payment here consists in a definite qualification of the existing juridical link between the parties to the contract. Once the duty of one party is performed, the other cannot dismiss - and in these terms - looses any right to the thing. The same should be observed, when the seller effectuated traditio or it was executed according to his voluntas (cfr.D. 6,2,14, where Papinian informes on the exceptio "si non auctor meus ex voluntate tua vendidit")60. We may suggest, that it is the fixation of the parties’ intention in executing their duties, that is rendered in terms of bona fides, and these terms apply to the principle of bilaterality of the consensual sale (Lab. 4 post. a Iav. epit. D. 19,1,50: bona fides non patitur; D. 12,1,31,1; 18,5,7,1). The impossibility for the vendor to vindicate the thing sold, interpreted as the passage of property, should be, thus, coordinated with the lack of action on the side of the buyer before payment 61.
This observation seems concordant to the dates, reported by Varro, on the practice of sale with the use of the ancient stipulation formulas in order to reinforce the duties of the parties62 (Varro, de re rust. 2,2,5-6):
In emptionibus iure utimur eo, quod lex praescripsit. in ea enim alii plura, alii pauciora excipiunt: quidam enim pretio facto in sungulas oves, ut agni cordi duo una ove adnumerentur, et si quoi vetustate dentes absunt, item binae pro singulis ut procedant.
de reliquo antiqua fere formula utuntur. cum emptor dixit "tanti sunt mi emptae" et ille respondit "sunt" et expromisit nummos, emptor stipulatur prisca formula sic, "illasce oves, qua de re agitur, sanas recte esse, uti pecus ovillum, quod recte sanum est extra luscam surdam minam, id est ventre glabro, neque de pecore morboso esse habereque recte licere, haec sic recte fieri spondesne?"
cum id factum est, tamen grex dominium non mutavit, nisi si est admuneratum; nec non emptor pote ex empto vendito illum damnare, si non tradet, quamvis non solverit nummos, ut ille emptorem simili iudicio, si non reddit pretium.
As the use of actiones ex empto vendito shows, the transaction is a consensual sale63. Hence the need to explain two observations made by Varro: the first that regards the absence of the real effect of the bargain (“tamen grex dominium non mutavit”) and the second that denies the functional bilaterality of the mutual obligations. The first may be well regarded as a constatation of obligatory effect of the transaction, as opposed to the expected real effect. Varro feels it necessary to emphasise that the buyer cannot vindicate the chattel before tradition, but can only claim the seller with actio in personam to effectuate the delivery (“illum damnare, si non tradet”). From the perspective developed in this paper such necessity can be viewed as resulting from the expromissio nummorum, a kind of satisfactio. At the same time, according to Varro, such expromissio did not facilitate the transfer, as the tradition (adnumeratio) could be effectuated even before the buyer had paid the price64. The possible effect of mutual stipulations was to ensure the expected roles of the parties to the transaction. Such effect can explain the reason of the second observation by Varro on the independence of actio empti from payment (“quamvis non solverit nummos”) and of actio venditi from tradition. The functional bilaterality of the mutual obligations, for Varro, is the normal regime of the consensual sale: “In emptionibus iure utimur eo, quod lex praescripsit” (where the meaning of “lex” should be beyond doubt - “contractus”65). What determines the significant modification of the normal effect of the contract is the use of ancient mutual stipulations. These are not so effective to assure the transfer of ownership without delivery, but they are sufficient to provide for the contractual roles of both parties. It makes their roles finalized to such extent that no one can demise and, thus, can be sued for the insolvency by the counterparty, notwithstanding the eventual delay in the execution of the opposite obligation. The interest of the author is intentively centered on the regime of actiones ex empto vendito, while the eventual use of the actiones ex stipulatu remains out of dispute66.
This procedural approach to the situation by Varro is compatible with our conclusions drawn from the analysis of the D. 14,4,5,18. There the passage of property was discussed in the absence of the real delivery of the goods as well. The situation was viewed in the procedural terms and "desinunt esse meae" on the side of the seller was equal to the impossibility to claim the goods. In the text by Varro the duty of the buyer (and the related personal right of the seller) is ensured by the expromissio nummorum while the contractual role of the seller is enforced by the stipulation habere licere. If the composition of sale supposed in the D. 18,1,19 (and I. 2,1,41) is taken into account, the latter element would correspond to the fidem emptoris sequi (like expromissio nummorum to the satisfacere). The generalisation present in the same prisca formula: "haec sic recte fieri spondesne?" - reveals the treatment of the expected effect in terms of factum venditoris.