| ||
| FEATURES | Bonae Fideii Bilateral Onerous Consensual | |
| MAIN OBLIGATIONS | -Buyer, Emptor: to pay the price -Seller, Vendor: a. to deliver the thing b. to take care of the thing between perfection of the contract and delivery (custodia) c. To give warranty against eviction: offer vacua posessio – peaceful and undistrurbed possession of the thing. d. To give warranty against latent defects of the thing (CAREFUL!!! Latent= not evident, the buyer is supposed to inspect the thing upon first view CAVEAT EMPTORIS). Not since the beginning, started by the Edicts. E. To pass to the buyer any actions to protect possession of the thing | |
| RISK | General Principle: Periculum est emptoris: the buyer carries the risk of the thing. During classic period for vis maior (force majeur and fortuitous case – act of God). In Justinian era, also for innocent damage: culpa lata Risk shift: when either party is delayed to comply with his obligation – in mora- the risk goes back to the delayed party | Because the contract is perfected by consensus in a price and a thing, having a risk meant that even though the thing could have been damaged or destroyed, the contract still existed and the price was still owed. Click here to find out more on risk (text in italian) |
| SPECIAL CASES | Spes: buy of expectations, hopes, futures Venditio res aliena: sales of things that belonged to third parties Sale of fungible things: they had to be somehow specified – not only by a measure or amount- | |
| ERROR/ VIS/ DOLI | Error in negotium: Causal theory vs. Abstract theory Error in Persona Vis Doli | |
| ACTIONS | Quanti Minoris Redhibitoria Ex emptio Bonae Fideii | |
I am confused hats the difference btwn stipulatio duplae and actio auctoritatis or rather which one was deveped first. and under which time period was the actio empti used and did it precede the stipulatio duplae.
ReplyDeleteSorry l meant what is the difference btwn stipulatio duplae and actio auctoritatis or rather which one was developed first
ReplyDeleteActio auctoritas is a remedy of mancipatio when a possessor is evicted and the owner cannot justify why, the possessor can ask for the double purchase price.
ReplyDeleteNot sure what stipulatio duplae is? The only remedies I know for stipulatio are condictio-specific subject matter and actio ex stipulatu-non specific subject matter.
Sorry! My mistake. Actio auctoritas was in the pre-sale period in the case of res mancipi until the period of usucapio had elapsed. The actio auctoritas was not a contractual action but a delictual one.
ReplyDeleteThe stipulatio duplae was before 12 tables.
I'm assuming both were pretty much way befoe emptio venditio.
In the sale period, there was actio empti. You have to determine whether stipulato accured to know which remedy helps.