Roman Law and the Legal World of the Romans

Contracts

for a horse, and it is struck by lightning before you pick it up from the seller. Whether or not you get your money back, one or the other of you is going to come out the loser, without either necessarily being at fault. Fairness cannot tell the law how to apportion that risk. The Roman solution in general is to put the risk on the buyer, only partially balanced by a requirement that the seller protect the merchandise while it is still in his possession. It has been pointed out that this is at least in line with the fact that the buyer is also the one who stands to lose or gain from fluctuations in, say, the market value of the item once the contract has been made. Parties who wished to divide up the risk differently were generally free to do so by explicit wording in their contracts [8, 14] . Most of the examples just given have been drawn from the law of sale (what the Romans called emptio venditio , “buying selling”), and I want to start from there in the discussion of the specifics of consensual contracts [25] . The basic idea of sale was the exchange of goods for a price, and an agreement that did not fit that model could not be protected by the contract of sale (as in the case of thing-for-thing barter mentioned earlier). The merchandise usually consisted of a physical thing or things, but could also be “non-corporeal,” like the right to sue some one or to inherit from someone. It had to be narrowly specified to make the agreement final. You could not technically contract to sell “ten bushels of wheat” (though many negotiations were probably conducted in such terms). A contract came into being only when some particular ten bushels had eventually been measured out. The major seeming exception to the rule is the

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