Wolff notes that permutatio is valid only if certain rules are obeyed. Permutatio must, firstly, be consensually agreed upon. Furthermore, things traded in permutatio must be owned by the people giving them, that is, one cannot trade what belongs to someone else. Traded things need not be delivered at the same time nor immediately after agreeing to permutatio, but the agreement creates an obligation to deliver the agreed things.
A rather peculiar form of permutatio is what Wolff call permutatio res sua cum sua, that is, trading one’s thing with that same thing. What Wolff means is that in this type of permutatio one person gives a thing at a certain time and the other person returns that same thing later. The main difference to ordinary borrowing of a thing seems to be that unlike with borrowing, the ownership of the thing changes for a while to the second person. Despite this, the second person cannot give the traded thing away, before returning it to the original owner.
In all forms of permutatio, Wolff adds, the traded things should be equally priced. Wolff does admit that this is not an absolute obligation - a person can use permutatio to give more in exchange to the other, but then this extra can be interpreted as a donation. Wolff also notes that price can be defined in two ways, firstly, as what a thing is considered to be priced commonly or by experts, and secondly, what an individual considers the price to be according to her particular feeling toward the thing in question. Wolff notes that the first type of price is the true price, while prices based on individual feelings should be considered only if both sides of the permutatio accept the evaluation of things according to this price.
The most important form of permutatio is emtio venditio. The defining element of the emtio venditio is for Wolff that one person is thought to give a price of the thing given by the other person, or more particularly, sum of money corresponding to this price. The person giving he thing is called venditor (seller), while the other person in this contract is emtor (buyer).
Just like permutatio in general, emtio venditio is valid only if certain conditions apply, such as consensuality and the seller owning the thing sold. Wolff also adds such considerations that a person cannot sell something that does not exist - although she can make the conditional promise that she will sell a thing, if it does exist in the future - and that a person cannot buy something she already owns - although she can pay for the possession of this thing.
A peculiar characteristic of emtio venditio is that it involves an explicit or implicit negotiation for the price of the thing. This is especially important in case of people promising to buy or sell something, because such a promise has an implicit condition that both parties must agree upon the proper price of the thing. Even if a promise is in this case conditional, it creates obligations for the person who promised: for instance, a person promising to sell a thing cannot sell it to anyone else during the negotiations for the price.
Wolff notes that in addition to determining the price of the thing sold and bought, the buyer and the seller can agree upon conditions when the price will change. For instance, faults in the thing can lower its price, while delays in the payment can make it higher.
More generally, many details in different types of contract depend on what is agreed upon by the people signing the contract. A good example of this is what Wolff calls arrha - a separate payment that one side of the contract gives in order to confirm the validity of the contract. If no other conditions are stated, arrha changes the actual contract in no manner and specifically it need never be paid back. Then again, Wolff notes, arrha is often an additional ingredient in emtio venditio, so that it is counted as a partial payment of the actual purchase (what we would call a down payment), and the contract might state some further conditions, when the down payment has to be paid back by the seller.
Wolff goes through a number of other possible additions to an emtio venditio:
One should only buy things from their owner. Yet, Wolff adds, the buyer cannot always know for sure whether the seller is the true owner and then she just has to assume the seller is. If then it is revealed afterwards that the owner knew nothing about this, she has a right to start eviction, that is, remove the thing from its possessor (i.e. the supposed buyer). In this case, the seller is obligated to pay for the buyer any expenses caused by eviction
A form of emtio venditio Wolff picks for a special consideration is what he calls locatio conductio, where what is sold is either work or use of a thing - in effect, concept of locatio conductio combines both work relations and rents. The seller in locatio conductio is called locator, while the buyer is called conductor. As soon as this type of contract has been agreed upon, the locator is obligated to provide the conductor with the work or the use of a thing. Similarly, conductor is obligated to pay for these, even if she later decided that she did not need the work or the use.
Just like with emtio venditio in general, there are certain rules governing what the locator and the conductor can do. For instance, no unlawful work (thefts, murders etc.) can be sold or bought. Furthermore, if the contract sets some restrictions on ways how the thing in question can be used, the conductor cannot break them. Then again, if if the conductor is not using a thing, locator cannot sell its use to another conductor without getting a permission from the first conductor.
Usually it is the owner who has the sole right of selling the use of a thing. An important exception is that the conductor or the buyer of this period of use can sell this use again. Similarly, if conductor has bought a period of work from locator, she can sell this work to a new conductor. This right of further locato conductio, or as Wolff calls it, sublocatio, is inherent in the notion of locatio conductio: if locator wants to forbid such a further sale of the use of thing or the work, conductor can then renounce the whole contract.
In case of locatio conductio involving use of a thing, locator is obligated to provide the conductor with a thing that is suited to the use it is contracted for. If locator is unable to do this, the contract becomes invalid: for instance, if locator has rented a house and because of repairs the conductor cannot live there, the contract falls apart. Conductor, on the other hand, is obligated to return the thing back to locator without any damages, except such as can be expected from normal wear and tear.
A rather peculiar form of locatio conductio is socida. In this case, the locatio conductio concerns use of cattle. Socida gives the conductor a right to use a herd of cattle with one prevision - if one of the herd dies, conductor should replace it. Thus, the herd, as it were, is indestructible, or as the colourful expression says it, made out of iron.
Just like permutatio in general, emtio venditio is valid only if certain conditions apply, such as consensuality and the seller owning the thing sold. Wolff also adds such considerations that a person cannot sell something that does not exist - although she can make the conditional promise that she will sell a thing, if it does exist in the future - and that a person cannot buy something she already owns - although she can pay for the possession of this thing.
A peculiar characteristic of emtio venditio is that it involves an explicit or implicit negotiation for the price of the thing. This is especially important in case of people promising to buy or sell something, because such a promise has an implicit condition that both parties must agree upon the proper price of the thing. Even if a promise is in this case conditional, it creates obligations for the person who promised: for instance, a person promising to sell a thing cannot sell it to anyone else during the negotiations for the price.
Wolff notes that in addition to determining the price of the thing sold and bought, the buyer and the seller can agree upon conditions when the price will change. For instance, faults in the thing can lower its price, while delays in the payment can make it higher.
More generally, many details in different types of contract depend on what is agreed upon by the people signing the contract. A good example of this is what Wolff calls arrha - a separate payment that one side of the contract gives in order to confirm the validity of the contract. If no other conditions are stated, arrha changes the actual contract in no manner and specifically it need never be paid back. Then again, Wolff notes, arrha is often an additional ingredient in emtio venditio, so that it is counted as a partial payment of the actual purchase (what we would call a down payment), and the contract might state some further conditions, when the down payment has to be paid back by the seller.
Wolff goes through a number of other possible additions to an emtio venditio:
- Addictio in diem: This additional clause provides the seller an opportunity to accept during a certain period a better offer, even if the sale has otherwise been completed. The better offer need not be one with more money involved, but it can have otherwise better conditions, such as a more certain payment.
- Lex commissoria: This additional clause states that unless buyer pays during certain period of time, the sale becomes invalid. Seller is then free to trade the thing with someone else. Then again, if the seller accepts even a partial payment from the buyer, the lex commissoria becomes invalid.
- Pactum de retrahendo: An additional clause stating that if the traded thing is sold anew, it should be sold to a certain person, at least if this person is willing to pay the same price as other potential buyers. Thus, if the thing is sold to someone else, this person has the right to revoke the sale.
- Pactum de retrovendendo: This additional clause gives the seller a right to buy the sold thing back during a certain period. If nothing else is agreed upon, the price for this new sale should be same as the original. This clause means that the buyer cannot sell the thing to someone else during the time when the clause is valid.
- Pactum de redimendo: This additional clause is almost same as the previous, but here it is the right of the buyer to sell the traded thing back.
One should only buy things from their owner. Yet, Wolff adds, the buyer cannot always know for sure whether the seller is the true owner and then she just has to assume the seller is. If then it is revealed afterwards that the owner knew nothing about this, she has a right to start eviction, that is, remove the thing from its possessor (i.e. the supposed buyer). In this case, the seller is obligated to pay for the buyer any expenses caused by eviction
A form of emtio venditio Wolff picks for a special consideration is what he calls locatio conductio, where what is sold is either work or use of a thing - in effect, concept of locatio conductio combines both work relations and rents. The seller in locatio conductio is called locator, while the buyer is called conductor. As soon as this type of contract has been agreed upon, the locator is obligated to provide the conductor with the work or the use of a thing. Similarly, conductor is obligated to pay for these, even if she later decided that she did not need the work or the use.
Just like with emtio venditio in general, there are certain rules governing what the locator and the conductor can do. For instance, no unlawful work (thefts, murders etc.) can be sold or bought. Furthermore, if the contract sets some restrictions on ways how the thing in question can be used, the conductor cannot break them. Then again, if if the conductor is not using a thing, locator cannot sell its use to another conductor without getting a permission from the first conductor.
Usually it is the owner who has the sole right of selling the use of a thing. An important exception is that the conductor or the buyer of this period of use can sell this use again. Similarly, if conductor has bought a period of work from locator, she can sell this work to a new conductor. This right of further locato conductio, or as Wolff calls it, sublocatio, is inherent in the notion of locatio conductio: if locator wants to forbid such a further sale of the use of thing or the work, conductor can then renounce the whole contract.
In case of locatio conductio involving use of a thing, locator is obligated to provide the conductor with a thing that is suited to the use it is contracted for. If locator is unable to do this, the contract becomes invalid: for instance, if locator has rented a house and because of repairs the conductor cannot live there, the contract falls apart. Conductor, on the other hand, is obligated to return the thing back to locator without any damages, except such as can be expected from normal wear and tear.
A rather peculiar form of locatio conductio is socida. In this case, the locatio conductio concerns use of cattle. Socida gives the conductor a right to use a herd of cattle with one prevision - if one of the herd dies, conductor should replace it. Thus, the herd, as it were, is indestructible, or as the colourful expression says it, made out of iron.
Wolff ends the book with discussion of two very special questions, societas and usuram. By societas he means a contract between two or more people that they will combine their capitals and work together for a common goal, dividing share in potential rewards and damages. The closest equivalent to modern terms would be company, except that Wolff’s societas is founded only for a definite project and for a limited period of time, although its existence can then be continued by mutual consent. Wolff goes into great detail discussing how profits or losses are to be divided fairly, what conditions regulate a person leaving societas and other similar things we cannot enter here.
The notion of usuram is closely connected to that of mutuum in that both involve a loan of a thing, which is consumed when used, such as money. The only difference is that in mutuum the person taking the loan needs just return what was loaned, but in case of usuram, she has to pay something additional for the use of the thing. In effect, then, usuram is simply a loan with usury or interest.
While we usually think of loans with compound interest, Wolff’s primary example of usuram is a loan where interest is paid just on the loaned sum. He does admit the possibility of interest paid on interest, and furthermore, interest paid on that interest etc., but this is something he considers only in passing.
Wolff’s general opinion is that asking for interest should generally be allowed. Indeed, in a sense he thinks that interest is the norm and loan without an interest is partially a donation. Then again, he wants very strict regulations on when interest can be asked for: this should be allowed, he says, only when the loan is used for a profitable business venture. Then again, if loan is used only for providing for the necessities of life, interest should not be demanded.
The notion of usuram is closely connected to that of mutuum in that both involve a loan of a thing, which is consumed when used, such as money. The only difference is that in mutuum the person taking the loan needs just return what was loaned, but in case of usuram, she has to pay something additional for the use of the thing. In effect, then, usuram is simply a loan with usury or interest.
While we usually think of loans with compound interest, Wolff’s primary example of usuram is a loan where interest is paid just on the loaned sum. He does admit the possibility of interest paid on interest, and furthermore, interest paid on that interest etc., but this is something he considers only in passing.
Wolff’s general opinion is that asking for interest should generally be allowed. Indeed, in a sense he thinks that interest is the norm and loan without an interest is partially a donation. Then again, he wants very strict regulations on when interest can be asked for: this should be allowed, he says, only when the loan is used for a profitable business venture. Then again, if loan is used only for providing for the necessities of life, interest should not be demanded.
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