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Wpływ „bona fides” na odpowiedzialność sprzedawcy za wady towaru w prawie rzymskim

100%

Chodań K.

Z Dziejów Prawa

2012

vol. 5(13)

17-30

The basis of the consensus buy-sell agreement was the bona fides of both parties. When making an agreement, both a buyer and seller were required to be careful because any manifes- tations of inadequacy and dishonesty grew a property liability of both parties. Client’s careless behavior could consist in a conscious action to the detriment of the partner (dolus), as well as negligence (neglegentia). Judges have referred to the term bona fides since the second century BC when evaluating the situation in which making an agreement was connected with dishonesty of one of the parties, and a conscious harm done to the second client, in order to justify the overruling of the client’s obli- gation, to signify such carefulness that reflects the scope of agreement liability typical in a given case. Each of such behaviours could be defined as incongruent with bona fides. Such adjudications were to serve the protection against damage resulting from agreement making, providing honesty of the turnover via increasing the scope of liability and excluding the advantage of the one making an agreement conscious of doing harm to the client. The process of charging the seller with liability irrespective of his/her good or bad intentions if provided the buyer with defective goods the existence of which the buyer was not aware of has been traced since Justinian’s times. Taking into account the role of bona fides when evaluating a buying-selling agreement and principles concerning seller liability one can make a statement that bona fides played a Basic role in a Roman emptio — venditio agrement.

Odpowiedzialność sprzedawcy za wady prawne towaru w prawie rzymskim

58%

Chodań K.

Opolskie Studia Administracyjno-Prawne

2014

vol. XII

issue 1

27-36

In Rome, the problem of responsibility for legal defects of a commodity was not of a lesser importance than that in the case of defects of physical nature. An article sold was affected by a legal defect if the selling person had sold a thing belonging to another person, or the sold commodity was the selling person’s property, yet was burdened with a limited property right of a third party. The selling person who introduced such a commodity in the circulation bore the responsibility which would be called warranty today. In Roman law, the responsibility for legal defects was constructed on the principle of eviction which held when the buyer lost the purchased article in consequence of a court’s judgement acknowledging it to be the property of a third party, thus realizing the property law by means of rei vindicatio. The seller, by offering an article to the buyer and securing to the latter a steady possession and use of it, took upon himself a full responsibility guaranteeing that nobody would take the purchased article from them. This responsibility was, initially, accidentale negotii, that is it had to be specially uttered in the way of stipulation. At the moment when the emptio-vendito contract became a consensual contract giving rise to actio bonae fidei, the responsibility in terms of eviction resulted already from the very selling contract itself, and the purchasing person – without the need of a separate stipulation – could by means of actio empti claim full compensation from the seller in each case of eviction. If, however, the object of the sales contract were res pretiosiores or it related to purchasing slaves, the responsibility of eviction was still to be uttered. The buyer could choose either to use actio empti or enforce stipulatio duplae.

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1 Opolskie Studia Administracyjno-Prawne

1 Z Dziejów Prawa

2 Chodań K.

1 2014

1 2012

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Wpływ „bona fides” na odpowiedzialność sprzedawcy za wady towaru w prawie rzymskim

Odpowiedzialność sprzedawcy za wady prawne towaru w prawie rzymskim