PACTUM DISPLICENTIAE – EMERGENCE AND THE EARLY LEGAL PROTECTION

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 redhibere in Mercator and the use of actio in factum for sale on approval in later period, their possible 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 significance 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.