Actio empti
By means of actio empti , in the Roman Code of Obligations, the buyer of an item from the sales contract ( emptio venditio = purchase sale) could demand performance of the purchase item.
The type of action formed the counterpart to actio venditi , which, conversely, was available to the seller to demand payment of the purchase price agreed for the item. With actio empti, the Roman lawyer did not envision the ideal of traditio , mancipatio or in iure cessio oriented towards transfer of ownership ( rem dare ) , but merely the fulfillment of the performance obligation ( facere ) from purchase ( empti = participle form of purchase ). The seller's performance only gave the buyer property if he himself owned the item.
The action for the performance of the object of purchase was instead aimed at ensuring that the buyer could exercise undisturbed possession and enjoyment of the fruit . The seller was always responsible for these rights; otherwise, the actio empti aimed at “performance” would take effect . If performance disruptions such as non-performance or default or material and / or legal defects occurred, the buyer could assert claims for compensation. The lawyers specified the performance obligations underlying the litigation as the subject of the dispute according to the principles of ex fide bona ( rule of interpretation ).
Originally, actio empti is said to have been reserved for the cases of the knowledgeable sale of third-party items ( dolus ) and the express assurance of non-existent properties ( dicta ). From Julian's post-classical reign , regardless of fault, the seller had to assume liability for performance based on a guarantee.
source
In the Digesta Iustiniani , the description of the purchase suit by the late classical lawyer Ulpian is reproduced.
“Ex emptoactione is qui emit utitur. (1) Et in primis sciendum est in hoc iudicio id demum deduci, quod praestari convenit: cum enim sit bonae fidei iudicium, nihil magis bonae fidei congruit quam id praestari, quod inter contrahentes actum est. Quod si nihil convenit, tunc es praestabuntur, quae naturaliter insunt huius iudicii potestate. (2) Et in primis ipsam rem praestare venditorem oportet, id est tradere: quae res, si quidem Dominus fuit venditor, facit et emptorem Dominum, si non fuit, Tantum evictiones nomine venditorem obligat, si modo pretium est numeratum aut eo nomine satisfactum, emptor autem nummos venditoris facere cogitur. "
“The actio empti is the buyer's action. (1) Above all, it should be noted that the subject of the action is only that which has been agreed that it will be performed. Since it is a bonae fidei iudicium , it is in accordance with the principle of good faith that what the parties have agreed upon is achieved. If nothing in particular has been agreed, what must be done is what is, according to the nature of the matter, the subject of the proceedings. (2) Above all, however, the seller must perform the item himself, i.e. hand it over. If the seller was the owner, he is only liable for eviction provided the price has been paid or security has been provided. The buyer must make the seller the owner of the money. "
Individual evidence
- ↑ a b Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 126, 131 f.
- ^ A b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 236, 240, 243.
