Naslov
Pactum displicentiae and emptio ad gustum as the predecessors of the contemporary trial sale

Autori
Sukačić ; Marko

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, sažetak, ostalo

Izvornik
Rijeka Doctoral Conference RIDOC 2016 / Kunda, Ivana - Rijeka, 2016, 30-31

Skup
Rijeka Doctoral Conference 2016

Mjesto i datum
Rijeka, Hrvatska, 02.12.2016

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
Pactum displicentiae ; emptio ad gustum ; kupnja na pokus
(Pactum displicentiae ; emptio ad gustum ; trial sale)

Sažetak
This presentation highlights the connection between two Roman law concepts: pactum displicentiae and emptio ad gustum and the contemporary trial sale (also termed sale on approval). Pactum displicentiae in Roman law and trial sale in contemporary laws are similar variations of the contract of sale, wherefore it is assumed that the modern version has Roman roots. With this in mind studying its Roman law origins should enable a better understanding of corresponding concepts in the contemporary law. The pactum displicentiae is an additional clause in a Roman contract of sale entitling the buyer to return the thing to the seller and to annul the sale within a certain period of time, if the thing does not suit the buyer. This type of sale is conditional and its validity depends upon the approval of the buyer. The condition can be either suspensive or resolutive. The question of interim deterioration will not arise in case of resolutive condition, since the buyer can reject the thing. Alternatively, if the condition is suspensive, the risk of deterioration remains with the seller, because the emptio is (still) imperfecta. Resolutive condition was more common in ancient Roman times when the buyer could not have used the action in rem. On the other hand, the buyer could use actio in personam, actio empti or actio in factum, the latter one being the actio prescriptis verbis. Regarding the time limit, the buyer had a certain period of time namely six dies utiles unless stated otherwise. Furthermore, according to Domitii Ulpiani fragmenta, this period of time could be in perpetuum, if it was expressly agreed (D. 21, 1, 31, 22). It should be noted that Roman emptio ad gustum only pertained to the sale of wine, in which case the clause that the buyer had the option to taste the wine was so common that Ulpian stated it was tacitly implied, if not excluded. Contemporary trial sale which is still often named emptio ad gustum (‘purchase to taste’) is a sale in which the buyer takes the goods under the condition that he or she had tested it and confirmed that it suits his or her wishes. In Croatia it is regulated by Articles 456, 457, 458 and 459 of the Civil Obligations Act. The seller’s obligation arises once they agree on the goods and the price, while the buyer’s obligation arises only after the fulfilment of the condition, or when he or she expressly conveys his or her approval of the goods. Contemporary emptio ad gustum has two variations: with the delivery of goods and without it. There is also a possibility of objective emptio ad gustum, where the buyer’s obligation arises depending on the results of the independent expert’s examination. Unlike in the ancient Roman law where it was limited to wine, today emptio ad gustum is of practically unlimited scope.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA