Original scientific paper
https://doi.org/10.25234/pv/9776
PACTUM DISPLICENTIAE – EMERGENCE AND THE EARLY LEGAL PROTECTION
Tomislav Karlović
orcid.org/0000-0003-1846-1318
; Faculty of Law, University of Zagreb, Trg Republike Hrvatske 14, 10000 Zagreb
Marko Sukačić
orcid.org/0000-0001-9113-7421
; Faculty of Law, Josip Juraj Strossmayer University of Osijek, Stjepana Radića 13, 31000 Osijek
Abstract
The paper deals with the potential existence of sale on approval in pre-classical Roman law, based on the passage “dixit se redhibere, si non placeat” from Plaut’s comedy Mercator (The Merchant). In the first part of the paper, the excerpt and the interpretation of the relevant part of the comedy are presented. The text is then analysed for the purpose of comparison with the characteristics of the classical pactum displicentiae as evidenced in the Digest, whereby Plaut’s fragment would constitute an evidence for the pre-classical origin of Roman sale on approval. In the ensuing analysis, the instruments of possible legal protection of pactum displicentiae and their chronological relation are studied. More specifically, based on the reference to redhi- bere in Mercator and the use of actio in factum for sale on approval in later period, their possi- ble connection and the time of emergence of the edict of aediles curules and actio redhibitoria has been researched into. In conclusion, the arguments are put forward concerning the signi- ficance of Plaut’s fragment in establishing pre-classical origins of Roman sale on approval, as well as on the possible impact of the edict of curule aediles on the development of early legal protection of sale on approval
Keywords
Plautus; sale on approval; pactum displicentiae; edict of the curule aediles; Roman law
Hrčak ID:
242001
URI
Publication date:
31.7.2020.
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