Translative effect of contracts of sale in western roman vulgar law and the retention of this concept in contemporary legal systems

The rules of sale in vulgar law are based on cash sale (direct exchange of goods for money) in an undeveloped economy and legal doctrine. The consequences of defining sale as a direct exchange of goods for money are as follows: the translative effect of sale (or in a more modern sense contract of sale), i. e. the ownership passes upon conclusion of the contract (without separate act of conveyance), ban on the sale of other people’s things (the seller must be owner of the thing sold), placing conditions on the transfer of ownership as payment (or guaranteeing the payment) of the price. Besides this, there has been an evident erasing of differences between the obligatory (ius in personam) and real (ius in rem) effect of the contract, as well as the contractual and delictual obligations of the parties. Classical Roman lawyers managed to reach a higher level of legal thought, and they adapted the contract of sale to the needs of intensive exchange, with the possibility to postpone the payment of the purchase price and the delivery of the thing. They defined the obligatory effects of the contract of sale, and separated it from real rights. To transfer ownership, they required a separate act: in case of ordinary goods (res nec mancipi) the delivery (traditio), and mancipatio or in iure cessio for acquisition the goods of special interest (res mancipi). Consensual sale allows for the sale of other people’s things, since up to the moment of conveyance (transfer of ownership), the seller has the possibility to acquire the ownership. The only flaw of classical law seems to be the principle of periculum est emptoris (that the risk of accidental loss passed to the purchaser with conclusion of the contract of sale). The origin of this rule seems to lie in cash sale. Linking the transfer of risk to the delivery of the thing, accepted in our Law of Obligations, is a better solution. The translative effect of sale has been retained in some contemporary legal systems. This model of acquisition of ownership should not be taken over by our positive law. It is further believed, that in contemporary conflict of different legal systems, the rules and principles of classical legal science, formed as Ius est ars boni et aequi (Celsus) should play a leading role in the creation of the new ius commune Europaeum.