PURCHASE AND SALE CONTRACT FEATURES OF FUTURE THINGS (EMPTIO REI SPERATAE, EMPTIO SPEI) IN ROMAN LAW

Abstract

The article examines the contract of purchase and sale of future things in Roman law. Two types of contracts are analyzed: emptio rei speratae (purchase of a future thing) and emptio spei (purchase of hope).

The subject of the first type of contract could be future fruits, future harvest, offspring of animals, a slave's child. The subject of transactions for the purchase of future things could be not only those things that were already growing, but also those that had not been harvested. It is substantiated that the contract of purchase of a future thing (emptio rei speratae) was a contract under a suspensive condition: the parties have obligations: the buyer has the obligation to pay for the goods, the seller has the obligation to transfer the goods. The buyer had to pay for the goods only in the quantity in which they appear. Therefore, the risk of non-fulfillment of the contract was entirely borne by the seller: he did not receive the price in the absence of the goods. If the seller prevented the condition from occurring, the buyer would have the right to sue the seller for damages. This contract was reflected in modern legal systems.

The second contract for the sale of a future thing was called “emptio spei”, which by its legal nature was an aleatory transaction. The subject of this contract was the future catch of fish or birds, or gifts of the princeps triumphant, which were thrown into the crowd (iactus missilium). The purchase and sale was considered to be valid even if nothing was received, since we have a “purchase of hope”. In this type of contract, the risk was entirely borne by the buyer, who must pay the price even if the object of the purchase and sale did not appear at the seller’s disposal or appeared in a much smaller quantity than expected. However, the idea that a certain minimum standard of conduct was required of the seller is substantiated: the necessary actions were taken to obtain the future goods and, if successful, they were transferred to the buyer. It is found that in this type of contract for the purchase of a future thing, the seller's liability arose only in the event of the seller's bad faith.