Науково-практична Інтернет-конференція 08.12.2016 - СЕКЦІЯ №1
In view of the inevitable globalization of law, in addition to the dogmatic, the comparative arguments are taken into account. An additional historical analysis may serve for the deeper understanding of private law. It could show a social and economic context which could have affected the specific shape of a given legal issue or a legal institution. The dogmatic, comparative and historical arguments should be study together. It is the only way to understand and foresee the possible ways of development of certain institution [1, p. 288-290]. Below I would like to demonstrate an example based on the experience of Roman law. The aim is to show that successful regulation should provide support for existing good practices. In this case, it was the story of the regulations on the risk of the thing sold. The example is the question of the risk in the contract of sale of wine (periculum vini mutati) [2, p. 216-248].
The expression periculum vini mutati appears in three extant source fragments. These are constitutions (of Severus Alexander, 223 AD – C. 4.48.2 pr., Emperors Diocletian and Maximilian, 293 AD – C. 4.49.12) and juristic pronouncements of Papinian contained in Fragmenta Vaticana (FV 16), which are found in the third part of a work entitled Responsa. The term periculum refers here to the risk of wine souring and moulding (periculum acoris et mucoris). As the ancients did not understand why wine soured, they saw the reasons for this process, as did Gaius (D.18.6.16)1, in the very nature of wine. Wine souring (change of wine into vinegar) impacts, in an obvious way, the commercial value of wine. However, wine which had soured or even moulded still had some commercial value, as underlined by Pomponius (D. 18.6.6)2.
Texts concerning the risk of wine spoilage form the majority of Digests (D. 18.6) and the Code (C.4.48) on the risk and benefits related to a thing sold (both under the title: De periculo et commodo rei venditae). The problem of souring might seem trivial in itself, but the number of surviving source texts which discuss it is proof that the amount of litigation related to that issue was considerable, with jurists issuing their rulings as a response to practical needs. The issue of periculum vini mutati was therefore the most instrumental in shaping solutions regarding the distribution of risk of loss or deterioration of a thing after a purchase/sale contract was concluded.
Besides grain and olive oil, wine was a staple and a basic object of commercial transactions in the Antiquity. Imperial Rome consumed 20,000,000 litres of olive oil annually. Wine consumption was five times that figure, amounting to 100,000,000 litres annually. 
Wine was stored and transported in amphoras, i.e. ceramic vessels with a volume of approximately 20 litres, stopped up with cork or wood and sealed with tar. Such a safeguard allowed wine to mature in an oxygen-free environment. It is estimated that a wine-carrier ship could accommodate around 2,000-3,000 amphoras. The amphora had a kind of label known as pittacium detailing the wine’s origin, manufacturer’s name and the incumbent consul. Also, much larger clay vessels known as dolia were used for wine storage and transport. Dolia could be up to 2 metres tall and 4 metres in circumference. Their volume ranged between 1,500-1,700 litres. These are usually found buried partially in the ground. However, they were also used in maritime transport. Recent archaeological discoveries indicate two or three rows of dolia were sometimes positioned along the keel of a merchant ship, apparently cemented in place to prevent shifting with the ship’s movement at sea. This technique allowed dolia to serve as fixed receptacles for the transport of wine. The high prices of dolia is evidence to indicate that their incorporation into maritime transportation represented a substantial investment of funds. There have been at least seven shipwrecks discovered carrying dolia, dating between the 1st century BC and the 3rd century AD. Archeological research has revealed the existence of Dressel1-type amphoras from northern Italy in all of the Mediterranean area Europe, from England to northern Africa. This shows how buoyant wine trade was in the 1st century BC.
The trade was conducted by a special group of merchants known as navicularii, who were at the same time ship owners (navae onerariae). Inscriptions found in Ostia, which is next to Puzzuola the second largest naval port in Rome, prove that merchants formed associations to cater for their members’ interests as well as maintained standards with regard to compliance with the provisions of wine sale contracts. These provisions may have been, for example, the seller’s guarantee of wine quality, as mentioned by Gaius (D. 18.6.16). Most of the inscriptions prove that Ostia housed commercial outposts of ship owners and importers, belonging to associations according to their region of origin, e.g. navicularii Kathaginiensis, navicularii Narbonensis (from Gaul) or according to the product which they sold, e.g. navicularii lignari (trading in wood). Merchant associations were formed not only by foreigners. Ostia was a merchant city not only in a passive sense. Mentions of navicularii ostiensis date back to the time of Caesar Augustus. This group occupied itself mainly with wine trade and exemplified a merchant association founded not on the basis of ethnicity but the type of traded goods. An inscription has survived which reads genio corporis splendissimi importantium et negotiantium vinariorum C. Septimius Qietus praeco vinorum dono dedit. Septimius Qietus hosted auctions where wine stored in Ostia was sold wholesale. It seems that wine merchants from Ostia and Rome formed a single association, for there is another inscription which talks about corpus vinariorum urbanorum et Ostiensum. In all probability, their trading operations focused on importing wine from the Adriatic Sea area, as there is yet another inscription which reads negotianti vinario item naviculario, curatori corporis maris Hadriatici. There are also other inscriptions, which mention a forum vinarium, located probably in Ostia, wine storage facilities – horrea vinaria, presumably in the harbour. In Ostia, there still remains a house which used to belong to a merchant named Annius. One of the bricks bears the inscription omnia felicia Anni, meaning ‘may all of Annius’ business be successful.’ Other bricks also contain scenes illustrating the type of business Annius was involved in: one of them presents a ship loaded full of wine dolia, while the other dolia were placed in a warehouse. 
These merchants were undoubtedly concerned with keeping up the good standards of sale. This was because only such practices guarantee continued business. Nevertheless, the problem of souring or moulding wine remained «inconvenient», as it seems that not even professionals could always predict it. Due to its unpredictability, it was termed by jurists as periculum acoris et mucoris risk. Ulpian equated wine spoilage with other events involving spillage or breakage of wine containers (D. 18.6.1)3. The risk was mentioned for another reason, too, i.e. the danger of loss or deterioration of wine’s commercial value, which occurred after the contract of sale was concluded but before the wine was delivered (ante traditionem) to the buyer. Romans based their thinking on the principle of periculum est emptoris, i.e. the risk is on the buyer. I am of the view that this principle, was formulated by jurists in the 1st century BC if not earlier, so it dates back to the classical period of Roman law. It is confirmed as such by a fragment by Papinian, contained in Fragmenta Vaticana, in the 3rd book of Responses4.
Roman law did not recognize the sale of things identified as to their kind. The sale of wine and grain, which were identifiable by weight, number or measure, was subject to the same rules as those which applied to the sale of things identified as to their identity. Therefore, it sufficed to agree on the price. Otherwise, the contract would become effective only after the goods had been measured, weighed or counted even though the price may already have been agreed on. Gaius (D. reports the view of Massurius Sabinus and Gaius Cassius Longinus, that the purchase is in this case deemed to have occurred with regard to specific amphoras or, in other words, particular units which will be counted out. This means that if a sale was for 100 metretes (1 metretes = 39 litres) out of a wine warehouse, and the wine has not been measured out yet, the sale in question is not definitive (perfecta) and so the risk of wine spoilage and other non-chance events burdens the seller (casus sentit dominus, omne periculum). However, in the case of outright purchase (D. per aversionem, uno pretio)6, the sale was deemed to have occurred at the moment when the price was agreed, with the simultaneous transfer to the buyer of the risk of wine spoilage and any possible benefits related to wine.
Therefore, to determine whether the risk of spoilage has transferred to the buyer, it is necessary to establish if the sale was definitive. This is stressed by jurist Paulus: we must know the object of sale, the kind and amount of things; we must establish the price, whereby the effectiveness of a contract may not depend upon a condition. Up to that point, all sale-related risk had been borne by the seller, but he also enjoyed any benefits derived from it, such as fruits. Similarly in Papinian: if the wine has been individualized, periculum est emptoris; but if the buyer has agreed on a fixed price for 100 or more wine amphoras before they are individualized, then the risk of spoilage will burden the seller. Interpretative doubts arise after a reading of the fragment on the fulfilment of a condition, which may refer to the assertion of a right to take a better offer (in diem addictio), as claimed by Mariano Alonso Pereze, though such as thesis seems, in my opinion, to have no basis in the sources.
In my opinion, such solutions were not detrimental to the buyer. After a contract of sale became effective, the object of such a contract was included in the buyer’s assets and became available for him to draw benefits from, for example, by reselling it at a higher price. In a model solution, after a contract became effective, the buyer should take care to collect the wine. The seller was obliged to guard the wine until it was measured out and, in the case of an outright purchase, until the wine was collected by the buyer. If no time-limit had been set, the seller should, in the presence of witnesses, call upon the buyer to collect the wine. If the buyer has failed, for reasons attributable to himself, to collect the wine, he bore all the risk of loss or deterioration of the wine. The substance of the custodia obligation corresponded to due diligence of a person receiving a free-of-charge loan, meaning that he was obliged to guard the thing on loan with more diligence than that which he applied in his own matters, and he could only be released from that obligation by force majeure and/or event which he could not have prevented.
The criterion of fault, as introduced by jurisprudence, allowed a more flexible assessment of the conduct of the parties to a contract of sale. If the seller prevented the wine from being tasted within a designated time-limit, the risk of souring did not pass to the buyer. On the other hand, if the seller prevented the wine from being collected within a designated time-limit, the seller’s obligation to guard the thing ceased. In the case of a per aversionem purchase, the transfer of risk to the buyer was excluded by the seller’s dolus (D. Modestinus)7. If the seller knew that the wine would not retain its good quality until the day when it was supposed to be collected and failed to notify the buyer thereof, the seller was liable to the buyer for the resulting damage. If the buyer failed to taste the wine or, in tasting it, misjudged its quality, he bore the risk of wine souring or moulding.
In such a case, the buyer could invoke error in substantia, claiming that the wine had soured before the sale. The turning of wine into vinegar was, in Ulpian’s view, an exception to the principle of deeming a sale invalid in the case of an error as to substance. But Ulpian supports Marcellus’ opinion only in that regard. On one hand, it could be maintained that this provided additional protection for the buyer, who could have wanted more than just a declaration of invalidity of the contract. This is because if the seller knew of a fault and kept it secret, the buyer was liable for any damage suffered as a result of the contract (D. 19.1.13 pr.)8. If he was not aware, however, he was only liable for the price difference. It is not clear, however, why Ulpian gives the buyer no option to choose remedies to which the buyer was entitled, namely withdrawal from the sale or seeking compensation.
It is reasonable to assume, however, that the principle of distribution of the risk of accidental loss or deterioration was then, as it is now, only a point of departure. Jurists often mention contractual provisions which repeal or amend the periculum est emptoris principle. Probably, the transfer of risk to the seller must have translated into a higher price. Also, it cannot be ruled out that the seller offered to accept the risk to make his offer more attractive. On the other hand, it was acceptable to stipulate that the risk transferred to the buyer before the fulfilment of a condition, i.e. before perfectio. The risk of wine spoilage was limited by the buyer’s stipulations that the wine should be of good quality and that the seller was to be liable if the wine went bad. The risk of acor et mucor was reduced to a minimum through pre-sale wine-tasting, especially in outright purchase, or tasting at a later time where further specification was required. Here, tasting caused the conclusion of a sale contract (Ulpian. D. 18.6.1), but where the wine was found to have gone bad, the buyer could waive the contract.
Conclusion. The above options lead us to believe that Roman jurists adapted legal solutions to the needs of economic life. The law matched the nature of legal relations existing between merchants in the sense that the rules were based on real life and commercial practice, and as such they were easily understandable and acceptable for merchants, leading to a reduction in the number of disputes. In the Antiquity, just as today, risk was unavoidable in commerce, while the ability to manage it could make or break a business. Roman legal sources confirm that the parties to a sale contract could solve this issue in a rational and flexible manner. The element of risk remained, but in the end, a lot of good decisions involve extensive risk-taking.
1. D. 18.6.16 (Gaius libro secundo cottidianarum rerum): Si vina quae in doliis erunt venierint eaque, antequam ab emptore tollerentur, sua natura corrupta fuerint, si quidem de bonitate eorum adfirmavit venditor, tenebitur emptori: quod si nihil adfirmavit, emptoris erit periculum, quia sive non degustavit sive degustando male probavit, de se queri debet. Plane si, cum intellegeret venditor non duraturam bonitatem eorum usque ad in eum diem quo tolli deberent, non admonuit emptorem, tenebitur ei, quanti eius interesset admonitum fuisse. – «D. 18.6.16 (Gaius, Daily Occurrences, Book II): Where wine in casks is sold, and it is spoiled on account of its nature, before it is removed by the purchaser, and the vendor has vouched for the good quality of the wine, he will be liable to the purchaser; but if he said nothing with reference to this, the purchaser must bear the loss, either because he did not taste the wine, or, if he did taste it, he formed an incorrect opinion, and has only himself to blame. It is clear that if the vendor knew that the good quality of the wine would not last until the day when it was to be removed, and did not notify the purchaser, he will be liable to the extent of the interest of the latter in being warned». All the translations by S. P. Scott, The Civil Law, Cincinnati 1932.
2. D. 18.6.6 (Pomponius libro nono ad Sabinum): Si vina emerim exceptis acidis et mucidis et mihi expediat acida quoque accipere, Proculus ait, quamvis id emptoris causa exceptum sit, ta men acida et mucida non venisse: nam quae invitus emptor accipere non cogeretur, iniquum esse non permitti venditori vel alii ea vendere. – «D. 18.6.6 (Pomponius, On Sabinus, Book IX): If I purchase certain wine, that which is sour and mouldy being excepted, Proculus says that, although this exception is made for the benefit of the purchaser, if he is willing to accept wine that is acid, still, acid and mouldy wine will not be included in the sale; for whatever the purchaser is not willing to accept, he should not be compelled to take, for this is unjust, and the vendor should not be permitted to sell the wine to another».
3. D. 18.6.1 pr. (Ulpianus libro 28 ad Sabinum): Si vinum venditum acuerit vel quid aliud vitii sustinuerit, emptoris erit damnum, quemadmodum si vinum esset effusum vel vasis contusis vel qua alia ex causa. Sed si venditor se periculo subiecit, in id tempus periculum sustinebit, quoad se subiecit: quod si non designavit tempus, eatenus periculum sustinere debet, quoad degustetur vinum, videlicet quasi tunc plenissime veneat, cum fuerit degustatum. Aut igitur convenit, quoad periculum vini sustineat, et eatenus sustinebit, aut non convenit et usque ad degustationem sustinebit. Sed si nondum sunt degustata, signata tamen ab emptore vasa vel dolia, consequenter dicemus adhuc periculum esse venditoris, nisi si aliud convenit. – «D. 18.6.1 pr. (Ulpianus, On Sabinus, Book XXVIII): If wine should become sour after having been sold, or should undergo any other defect, the purchaser must bear the loss; just as if it had been spilled on account of the vessels in which it was contained being broken, or for some other reason. If, however, the vendor assumes the risk, he must do so for the time during which he subjects himself to it; but where he did not designate the time, the wine will be at his risk until it is consumed, because, when this is done, the sale is then entirely concluded. Therefore, whether it is agreed that the wine shall be at his risk or not, he will be responsible for it until it is used up. If, however, before it is consumed, the vessels or cask containing it are sealed by the purchaser, we hold that the wine will still be at the risk of the vendor, unless some other agreement is made».
4. FV 16: Vino mutato periculum emptorem spectat, quamvis ante diem pretii solvendi vel condicionem emptionis inpletam id evenerit. Quod si mille amphoras certo pretio corpore non demonstrato vini vendidit, nullum emptoris interea periculum erit. – "FV 16: The risk of wine spoilage burdens the buyer even though the even took place before the day of payment or the day on which a condition was fulfilled. If he should sell, for a fixed price, a thousand amphoras, not having specified the wine, the risk remains with the seller until such a specification is made’".
5. D. (Gaius libro decimo ad edictum provinciale): In his quae pondere numero mensurave constant, veluti frumento vino oleo argento, modo ea servantur quae in ceteris, ut simul atque de pretio convenerit, videatur perfecta venditio, modo ut, etiamsi de pretio convenerit, non tamen aliter videatur perfecta venditio, quam si admensa adpensa adnumeratave sint. Nam si omne vinum vel oleum vel frumentum vel argentum quantumcumque esset uno pretio venierit, idem iuris est quod in ceteris rebus. Quod si vinum ita venierit, ut in singulas amphoras, item oleum, ut in singulos metretas, item frumentum, ut in singulos modios, item argentum, ut in singulas libras certum pretium diceretur, quaeritur, quando videatur emptio perfici. Quod similiter scilicet quaeritur et de his quae numero constant, si pro numero corporum pretium fuerit statutum. Sabinus et Cassius tunc perfici emptionem existimant, cum adnumerata admensa adpensave sint, quia venditio quasi sub hac condicione videtur fieri, ut in singulos metretas aut in singulos modios quos quasve admensus eris, aut in singulas libras quas adpenderis, aut in singula corpora quae adnumeraveris. – «D. (Gaius, On the Provincial Edict, Book X): With reference to articles which are determined by weight, number, and measure (as, for instance, grain, wine, oil, and silver) the sale is held to be perfected in these instances as well as in others, only when an agreement has been made with reference to the price; and sometimes, even when an agreement has been made as to the price, the sale is not considered to have been perfected, unless the articles have been measured, weighed, or counted. For where all the wine, oil, grain, or silver, no matter how much there may be, is sold for a certain price, the same rule applies as in the case of other property. If, however, the wine was sold in separate jars, and the oil in separate vessels, the grain in separate measures, and the silver in separate weights, a certain price being fixed for each; the question arises at what time was the purchase perfected? This question might also be asked with reference to articles which are counted, where the price was fixed according to a certain number of said articles. Sabinus and Cassius hold that the purchase became complete when the articles were counted, measured, or weighed; because the sale is considered to have been made under the condition that you should measure them in individual vessels, or weigh them pound by pound, or count them one by one».
6. D. (Ulpianus libro 28 ad Sabinum): Si aversione vinum venit, custodia tantum praestanda est. Ex hoc apparet, si non ita vinum venit, ut degustaretur, neque acorem neque mucorem venditorem praestare debere, sed omne periculum ad emptorem pertinere: difficile autem est, ut quisquam sic emat, ut ne degustet. Quare si dies degustationi adiectus non erit, quandoque degustare emptor poterit et quoad degustaverit, periculum acoris et mucoris ad venditorem pertinebit: dies enim degustationi praestitutus meliorem condicionem emptoris facit. – «D. (Ulpianus, On Sabinus, Book XXVIII): If the wine is sold in bulk, the vendor is only responsible for its custody; and from this it is apparent that if it is not sold under the condition of being tasted, the vendor will not be held liable for its sourness, or its mould, but the purchaser must bear the entire risk. It is, however, unusual for anyone to purchase wine without tasting it; and therefore if no day has been appointed for that purpose, the purchaser can taste it when he pleases, and up to the time when he does so, the vendor must be responsible for its sourness or mould; for when the day for tasting it has been fixed, it renders the condition of the purchaser better».
7. D. 18.1.62 (Modestinus libro quinto regularum): Res in aversione empta, si non dolo venditoris factum sit, ad periculum emptoris pertinebit, etiamsi res adsignata non sit. – "D. 18.1.62 (Modestinus, Rules, Book V): Where property is purchased in bulk, it is done at the risk of the purchaser, provided the vendor is not guilty of fraud, even if the property has not been transferred".
8. D. 19.1.13 pr.(Ulpianus libro 32 ad edictum): Iulianus libro quinto decimo inter eum, qui sciens quid aut ignorans vendidit, differentiam facit in condemnatione ex empto: ait enim, qui pecus morbosum aut tignum vitiosum vendidit, si quidem ignorans fecit, id tantum ex empto actione praestaturum, quanto minoris essem empturus, si id ita esse scissem: si vero sciens reticuit et emptorem decepit, omnia detrimenta, quae ex ea emptione emptor traxerit, praestaturum ei: sive igitur aedes vitio tigni corruerunt, aedium aestimationem, sive pecora contagione morbosi pecoris perierunt, quod interfuit idonea venisse erit praestandum. – «D. 19.1.13 (Ulpianus, On the Edict, Book XXXII): Julianus, in the Fifteenth Book, makes a distinction with reference to rendering a decision in an action on purchase between a person who knowingly sold the property, and one who ignorantly did so; for he says that anyone who sold a flock which is diseased, or a defective beam, and did so ignorantly, must make the claim good in an action on purchase, to the extent that the buyer would have paid less if he had been aware of said defects. If, however, he was aware of them, and kept silent, and deceived the purchaser, he will be obliged to make good all the loss which the purchaser sustained from said sale. Therefore, if a building should fall down on account of the defect in the price of the timber aforesaid, its entire value must be estimated in assessing damages; or if the flock should die through the contagion of the disease, the purchaser must be indemnified to the extent of the interest he had in the sale of the property in good condition».
1. Cf. F. Longchamps de Bérier, Z uwag od metodologii prawa prywatnego: argument historyczny, dogmatyczny i prawnoporównawczy na przykładzie darowizny na wypadek śmierci oraz zapisu windykacyjnego, Polska Komparatystyka Prawa. Prawo obce w doktrynie prawa polskiego, red. A. Wudarski, Warszawa 2016, P. 288-290.
     2. See E. Jakab, Risikomanagement beim Weinkauf Periculum und Praxis im Imperium Romanum, München 2009, M. Pennitz, Das periculum rei venditae. Ein Beitrag zum aktionenrechtlichen Denken im römischen Privatrecht, Wien - Köln – Weimar 2000; B. Frier. Roman Law and the Wine Trade, ZSS 100 (1983) pp. 257-295, W. Ernst, Periculum est emptoris, ZSS 99 (1982), P. 216-248. {jcomments lock}