A transferência da propriedade no direito comum : compra e venda e doação

Abstract

Sale and purchase and sale was, in classical Roman law, a consensual agreement creating obligations: that of the seller to transfer possession to the purchaser, freely and in a peaceful manner; and for the latter to pay in cash the purchase price, which could be settled at a later date, according to criteria determined at the time of purchase. The buyer acquired the property either through appropriate dealing (mancipatio, in iure cessio, traditio) or by usucaption. If the subject matter was damaged, the seller in possession would be liable, before delivery to the buyer. And if the damage were caused by a fortuitous event or force majeure, the buyer would bear the risk and remain liable to pay the purchase price. With regard to defects, hidden or otherwise, the seller would be liable, originally, if he had expressly stated that they did not exist and at a later date, even in the absence of such statement. If he had concealed them in bad faith, he would be liable in fraud. As for dispossession by legal process, the seller was initially liable by virtue of stipulatio effect and, subsequently, by virtue of the contract of sale and purchase itself. In this eventuality, liability was avoided only if excluded by pactum de non praestanda evictione. The parties could complement the purchase and sale with a variety of agreements called ex (or in) continenti, which produced various effects under different conditions: the termination of the contract, the ability of the seller to redeem the thing sold, and a preferential option in the case of subsequent sale by the purchaser, etc. Later, in the late classical period, this framework of buying and selling remained intact, despite the influence of eastern (mainly Greek) sale and purchase, marked by the transfer of ownership at the time of payment of the purchase price to or to the order of the vendor. As a consequence, the property was transferred under the contract (producing real effects), without depending on the payment of the price, which could be made later. In Justinian’s time, Justinian’s classicism reestablished the classical concept of buying and selling: it again produced binding effects, but it was recognized that without the payment of the price or the provision of a guarantee by the buyer, ownership was not transferred. That is, the property was transferred with the traditio of the thing sold, but was suspended until the payment of the price or the provision of a guarantee to replace it. In an appraisal of Roman law, we observe its long evolution from the simple causa (donationis) of various legal and material acts, until it arrives at the autonomy and individuality of a free contract. The creation of obligational effects is found in the Romanistic sale and purchase tradition. The opening up of Justinian law to the production of real effects does not invalidate this approximation. This does not detract from the profoundly different nature of the legal systems in question. Analysis of the legal regime for the various types of gifts in the European legal systems referred to will show that some types still closely approach Roman law, while others have diverged. Gifts between husband and wife are an example of this divergence, although the prohibition of the donor’s privilege to freely revoke corresponds to what eventually obtained in classical and postclassical Roman rules. In general, and in summary, it will be said that the Roman law on gifts provides an example of a truly European ius commune. This law naturally facilitates the free movement of persons and goods with the security and certainty which, for justice to be served, it is bound to safeguard.