The Theoretical Study Of Buying And Selling Contract Of Roman Law

Roman law dominates an extremely important position in the whole ancient law system, and its private law especially receives much concern. Roman law is very complex, extensive and profound. This paper only puts buying and selling contract theory as the studying objective, combs and reconstructs this theory. Debt contract is an important type of Roman debt law; buying and selling theory serves as the typical one of desirable debt contracts. It is the vital source of modern contract theory and contains the core content of the latter. Buying and selling contract is an agreement on the payment of subject matter and amount by parties, and includes three key components: subject, object and desirability of buying and selling. The first component refers to the parties who have rights and perform obligations in the contract, namely, buyers and sellers. Contract subject theory holds an important position in the constitution of buying and selling contract, and Roman law presents many restricted regulations to it. Object includes subject matter and amount, which are the essential key components to constitute buying and selling contract. The former refers to the objective of buying and selling by parties, it should meet the following conditions: thing must exist when the contract is signed; subject matter must be clear; subject matter can not be the forbidden dealing thing. At the same time, Roman law stipulates some rules for special thing: buying and selling one's own things, others'things, stolen things, harmful things and rights. Amount means the relative price of subject matter possessed by buyers, some conditions must be met: it must be currency; it must be definite; it must be true and reasonable. The agreement over subject matter and amount reached by parties is called desirability. Buying and selling contract is a typical desirable contract. The contract is valid, as long as desirability exists between the parties. Roman law also stipulates two factors that stop the establishment of desirability, namely, "error", and "fraud or coercion". The former refers to the actors'untrue understanding of some objective or subject matter. According to different standards, "error"can be divided into several different types: trade nature error; human identity error; amount or quantity error; subject matter error. Different "errors"have different influences over validity of buying and selling contract. In the broad sense, "fraud or coercion"belong to the category of evil intension in Roman law. "Error"and "fraud or coercion"constitute desirability disadvantage. In the early period of Roman society, buying and selling contract follows strict formalism, "fraud or coercion"do not influence the validity of contract, as long as it meets the structural requirements. With the change of contract from strict structuralism to credibility, Lawsuit of fraud and coercion are successively established. "Error"and "fraud or coercion"are important concepts in civil law, in particular, the theory of "error"has vital theoretical significance for the development and completion of modern civil law. Validity refers to both parties'right and obligation in contract, taking the rules of right shift and risks bearing as the important components. Special rule of right shift in buying and selling contract is that in the activities of buying and selling, it is the possession right rather than ownership of subject matter is shifted. This rule serves as an important distinction between buying and selling contract of Roman law and modern law. Roman law also stipulates thatafter the contract is signed, buyers should undertake the responsibility of damages and mislay because of unexceptional incidents before subject matter is delivered. At the same time, there are some rules, for example, the convention between risks taking and parties; risks taking and delivery; risks bearing and parties'error and interest enjoyment etc. Buying and selling contract in Roman law is a typical two-party obligation contract, in which buyers and sellers are mutual creditors and debtors. One party's right is the other's obligation; as a result, only obligation of both parties is stipulated in Roman law. In detail, the main obligations of buyers are that paying amount and consigning the ownership of amount to sellers; accepting subject matter and compensating the selling expenses; undertaking the responsibility of unable or delayed execution; While the obligations of sellers are that safekeeping and delivering subject matter; warrant pursuing; warrant flaw of quality; undertaking the responsibility of unable or delayed execution. Concision in the buying and selling contract of Roman law refers to supplementary appointment that both parties defend their own interest on validity of contract when concluding contract. Concision can be divided into two types: one is dismissal of superiority, which means buyers can dismiss the reached contract when they meet more preferential price within the allotted time, moreover, buyers can take back the goods which have been sold and sell them to persons who give more preferential price, and the other type is dismissal of established price, which refers that if buyers do not pay for the goods within the allotted time, the sellers can unilaterally dismiss the contract, and the subject matter is taken back. The first type is generally established following the forms: "If there has no buyers who give more preferential price...