Sidor som bilder
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THE

DIGEST OF JUSTINIAN.

BOOK XVIII.

TITLE I.

DE CONTRAHENDA EMPTIONE.

A

LIBER DECIMUS OCTAVUS.

TIT. I.

DE CONTRAHENDA EMPTIONE 1 ET DE PACTIS INTER EMPTOREM ET UENDITOREM COMPOSITIS ? ET QUAE RES UENIRE

NON POSSUNT. 3

1. PAULUS libro xxxIII ad edictum. ORIGO emendi uendendique a permutationibus coepit. olim enim non ita erat nummus, neque aliud merx aliud pretium uocabatur, sed unusquisque secundum necessitatem temporum ac rerum utilibus inutilia permutabat, quando plerumque euenit, ut quod alteri superest alteri desit. sed quia non semper nec facile concurrebat, ut, cum tu haberes qnod ego desiderarem, inuicem haberem quod tu accipere uelles, electa materia est cuius publica ac perpetua aestimatio difficultatibus permutationum aequalitate quantitatis subueniret. eaque materia forma publica percussa usum dominiumque non tam ex substantia praebet quam ex quantitate, nec ultra merx utrumque sed alterum pretium uocatur.

1. Sed an sine nummis uenditio dici hodieque possit, dubitatur,

L. 1 pr.--The Greeks had already more fully analysed the advantages of money over a system of barter (see e.g. Arist., Pol. i. 9, Ethic. Nic. v. 6); but Paul's rapid sketch in the opening paragraph is sufficient for his purpose. Barter involved two inconveniences,—the trouble of finding a person who had the commodity you wanted, and at the same time wanted the commodity you had, and the difficulty of arranging an exchange in terms of commodities which were different on each occasion. Money meets both difficulties; it is a general medium of exchange, and so you find a ready buyer and seller at every step; it is also a common measure of values, and so you are spared the i Code iv. 38. 2 Code iv. 54.

3 Code iv. 40.

BOOK XVIII.

TITLE I.

OF THE CONTRACT OF SALE AND OF SPECIAL COVENANTS
BETWEEN BUYER AND SELLER, AND OF THINGS

INCAPABLE OF SALE.

1. PAUL

The practice of barter was the source from which buying and selling arose. In early times there was no money, and no distinction in language between 'wares' and 'price': a man simply exchanged things useless to him for things useful, as his needs and circumstances demanded, it being commonly the case that one man lacks something which his neighbour has in superabundance. But as it seldom came about quite naturally, that when you had what I required, I too had what you were willing to take, a substance was chosen to which a permanent value was attached by public authority, with the view of obviating the inconveniences of barter by means of its uniform value. When stamped by the state, this material serves as an instrument of exchange and of acquisition on account of its recognised value rather than its inherent qualities, and the word 'wares' is no longer used of both the articles exchanged, but one of them is called the price.'

1. It is a disputed point whether we can still speak of a sale

trouble of balancing the qualities of the two commodities against each other. The words 'aequalitate quantitatis' refer to this second advantage of money—it is a constant quantity, a uniform standard with a value independent of its intrinsic worth. The introduction of a coinage marks the stage at which sale takes the place of exchange for all ordinary purposes.

§ 1. Barter having been the precursor of sale, it was natural that

ueluti si ego togam dedi, ut tunicam acciperem. Sabinus et Cassius esse emptionem et uenditionem putant: Nerua et Proculus permutationem, non emptionem hoc esse. Sabinus Homero teste utitur, qui exercitum Graecorum aere ferro hominibusque uinum emere refert, illis uersibus :

"Ένθεν άρ' οινίζοντο καρηκομόωντες Αχαιοί
άλλοι μεν χαλκό, άλλοι δ' αίθωνι σιδήρω,
άλλοι δε ρινούς, άλλοι δ' αύτήσι βόεσσι,

άλλοι δ' άνδραπόδεσσιν. sed hi uersus permutationem significare uidentur, non emptionem, sicut illi:

"Ένθ' αύτε Γλαύκω Κρονίδης φρένας εξέλετο Ζεύς,
δς προς Τυδείδην Διομήδεα τεύχε' αμειβεν.2

some degree of confusion as to the legal relation between them should exist in later times. Gaius (iii. 141) gives a rather fuller account of the discussion between the two schools of jurists. The Sabinians maintained, on historical grounds, that a price in money was not essential to sale, and, therefore, that barter was a variety of sale. Their object probably was to bring cases of exchange within the idea and the remedies of sale, which had now won full recognition as a consensual contract enforcible by bonae fidei actions. The Proculians argued that in sale the ware and the price are essentially distinct, and the buyer and seller are plainly marked off from each other, whereas in the exchange of one mere for another you cannot tell which performs the function of price and which corresponds to the ware.

Caelius Sabinus tried to meet this objection by showing that the distinction could be drawn in some cases of exchange, e.g. when the one party offered a thing for sale (rem venalem habens) and agreed to take another thing for it by way of price; and in such a case the emperor Gordian allowed an action analogous to the actio empti (C. iv. 64. 1). At best this was only a partial answer, and it failed to establish an objective test generally applicable. The view of Proculus, that the price must be in current money, is here approved by Paul and prevailed in the end, except in the case just mentioned, where one party marked out his ‘res' as 1 II. vii. 472.

2 Il. vi. 234.

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