History of transfer of property rights on the basis on contract of sale

Abstract

The Roman contract of sale (emptio venditio) and the concept of consensual contracts were adopted by all European and world legislation created on the ruins of the Roman Empire or under the indirect influence of this civilization. As a bilateral, equally binding bonae fidei contract, it gave rise to obligations for both parties, while not transferring either the possession or the right of ownership from the seller to the buyer. In order to transfer ownership, it was required to add an act consisting of mancipatio, for res mancipi, or traditio, for res nec mancipi. In the paper, the author points to the historical development of the transfer of property rights based on the contract of sale, both in Roman law and in modern European codifications, to its dynamic development and the differences in European legal systems. In particular, he examines the question of whether traditio is an act that enables someone to acquire factual power over things or a legal transaction.

The results indicate the following. The dilemma about the legal nature of tradition originates from Gaius. Based on the legal texts, it can be concluded that classical jurists understood traditio both as a way of acquisition and as a consent of will, having in mind that there is a conflict whether it is a one-sided or two-sided legal transaction; according to Paulus, it is a unilateral legal transaction and according to Iavolenus, bilateral. Furthermore, for Ulpianus, the traditio is a contract, independent of the basis on which the traditio is carried out. Iulianus opinion, although it is questionable as to how original it is, is revolutionary – it is an independent legal transaction based on the agreement of two parties, regardless of the cause; there is no evidence that the sighting was accepted in Roman law and Romanists suggest that it is an interpolation. On the other hand, the Prussian Landrecht (ALR) and the French Civil Code (CC) foresee a departure from the Roman models – the transfer of property rights occurs by agreement of the will of the parties; the concept originated from members of the natural law school Hugo Grotius, Christian Wolff and Jean Barberac. A contrario, the German Code (BGB) defines the traditio as an abstract act by which the property right was transferred, regardless of the nullity or validity of the initial contract, or even whether it exists. The Austrian (ABGB), but also the Serbian (SGZ) and Swiss (ZBG) Civil Codes remain true to the classic Roman concept that titulus and modus are required for the transfer of ownership based on a contract of sale.

The paper uses linguistic, systematic and historical interpretation of passages G. Inst. 1.119–120, G. Inst. 2.19–20, D.12.1.18. pr, D.18.1.19, D.18.1.74, D.19.2.21, D.39.5.10, D.41.1.9.3, D.41.1.31, D.41.1.36, D.43.26.20, D.44.7.55, C.8.53.1. and Inst.2.1.41, as well as historical method.