Il concorso tra tutela legale e tutela negoziale dell'acquirente nel I secolo a.C.: breve nota

This essay deals with the topic of the remedies available to the buyer in Roman Law. It focuses on the matter of the defects of the things sold and it concentrates on I century b. C., when the topic arose. It divides between remedies granted by the law and remedies whose implementation was up to the buyer will and skill to provide for himself. Remedies granted by the law were, on one hand, the ones attached to the contract of sale and to the act by which ownership was acquired and, on the other hand, the ones provided by the aediles. Remedies up to the buyer were the formal and binding warranties, with which the seller granted the quality of the thing sold. During the I century b. C., no protection came from contracts of sale and from acts of transfer. Only some jurists, although preeminent, sought to hold the seller liable for omitting to disclosure defects of the things sold. It could be stated that by the time of the jurist Sabinus, around 30-50 a. C., this tendency prevailed. Otherwise, the republican view was that the seller could not be excepted to disclosure by himself defects of the things sold. The protection granted by the aediles only came around 75 b. C. up (contrary to the widespread view, which dates it around III/II century b. C.) and focused just on slaves and, during the Augustan age, pecudes, holding the seller liable if he did not advise the buyer on aspects on which the magistrates required the seller to give the buyer information (chiefly, on defects of the thing sold). That should not astonish, as Roman society required mainly the buyer to protect himself, insisting with the seller to have a warranty on the quality of the object, not trusting on seller’s mere puff. The law of the concurrence of those remedies, during the I century b. C., is pretty obscure. However, it can be stressed that no concurrence came between actio empti and aedilician remedies up, as well as with actions arising from warranties. Actually, in this period a concurrence only appeared between the aedilician actio redhibitoria and the actio arising from warranty, when the aediles, around 50-30 b. C., granted their remedy by failing to comply with what was dictum (in a mancipatio) or promissum (in a sponsio) about the quality of the things sold. Otherwise, only action arising from warranty was granted: lacking a warranty, the aedilician remedies, within the fairly limited scope of them. Regarding internal concurrence of the aedilician remedies (redhibitoria and, since Augustan age, quanti minoris), it must be stated that the latter was subsidiary to the former, not alternative or cumulative to it, contrary to the widespread view.