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英国essay代写:The validity of contracts of sale under Roman law

2019-04-23 | 来源:51due教员组 | 类别:Essay代写范文

本篇essay代写- The validity of contracts of sale under Roman law讨论了罗马法买卖契约的效力。契约的效力是指买卖双方当事人在契约中的权利和义务。而罗马法买卖契约是罗马法契约之债重要类型,是研究其他类型契约之债的基础。买卖是完全的双务契约,一方的权利就是他方的义务,买卖契约的效力主要表现为买受人和出卖人的义务。本篇essay代写51due代写平台整理,供大家参考阅读。

The validity of sales contract refers to the rights and obligations of both parties in the contract. Since a sale is a complete double contract, one party's rights are another party's obligations. Therefore, the effectiveness of the sales contract is mainly manifested in the obligations of the buyer and the seller. The special rules of transfer of rights and assumption of risks are an important part of the theory of contract of sale in Roman law and the premise of solving the problem of the validity of contract of sale.

The validity of contract refers to the rights and obligations of both parties in the contract. The contract of sale in Roman law is an important type of contract debt in Roman law. The sale is a complete double contract, the right of one party is the obligation of the other party, the effectiveness of the sale contract is mainly manifested as the obligation of the buyer and the seller. Taking the validity of the contract of sale in Roman law as the research object, this paper reveals the characteristics of the validity of the contract of sale by analyzing the obligations of buyers and sellers in the contract so as to contribute to the development and perfection of modern contract theory.

The special rules of transfer of rights and assumption of risks are an important part of the theory of contract of sale in Roman law and the premise of solving the problem of the validity of contract of sale. To study the effectiveness of sales contract, we must first solve the problem of right transfer and risk taking.

Roman law is different from modern civil law in that it does not directly transfer the ownership of the subject matter. The contract of sale in Roman law is a typical consensual contract. Once the parties reach an agreement on the sale itself, the payment of the subject matter and the payment of the price, the contract of sale is established without regard to the transfer of the ownership of the subject matter as an important condition. In Roman law, contract and transfer are completely separated, that is, "when the contract is reached, the ownership does not transfer to the buyer, and such transfer only happens when the goods are actually delivered". The origin of the special rule of contract of sale in Roman law: no transfer of title is unclear. However, since the establishment of this rule, the debate among jurists has been uninterrupted. "We believe that all the real reasons for the emergence of this particular rule of Roman law can only be explored in the historical context of ancient Roman society." This special rule originates from the strict restriction of the transfer of ownership in the Roman law, which hinders the circulation of commodities and economic development. He also believed that the effect of transfer of possession by Romano was similar to that of transfer of ownership, which reflected the spirit of seeking truth from facts of the Romans in adapting law to the requirements of economic relations. Some scholars believe that the role of this rule should be to protect the seller from the buyer's insolvency, because he can claim the right to the property before payment, no matter who has the property. Whatever the reason for this particular rule of the contract of sale in Roman law, it doomed "the whole development of the contract in Roman law to be reduced to a constant search for ways of getting rid of this imperfection, of making it necessary for the seller not only to transfer possession, but also to transfer ownership thoroughly".

The question of risk bearing is about who should bear the responsibility for the damage or loss of the subject matter caused by accidents before delivery after the establishment of the sale. The applicable rule of the general theoretical risk bearing of contract debt in Roman law is that all owners bear the risk of accidental loss and damage. In the sales contract, it has its own unique risk bearing rules, that is, from the date of the sales contract, the risk of the sold items and the possible profits are borne or enjoyed by the buyer, even if the relevant items have not yet been handed to the buyer. "It is necessary to know when the sale and purchase will be completed, so that we can know who will bear the risk." Once the sale contract is completed, the risk is borne by the buyer. There has been a great dispute among the Roman law researchers about the reasons for the existence of the special rules on the risk-taking of sales contracts. Zhou gan believes that when the debtor is the weak one in the relationship of debt, and therefore cannot deliver the subject matter due to his fault, the buyer with good economic conditions should bear the loss. At the same time, this principle is also in line with the principle of "profit and loss return", that is, after the sales contract is established, the subject matter rises in price before delivery, the interest belongs to the buyer, and the fruits and appends in between belong to him. Conversely, the loss such as the price drop of the subject matter and charge should return vendee to bear likewise.

The Roman law sales contract is a typical double contract in which the buyer and the seller are creditors and debtors to each other. The rights of one party are the obligations of the other party. Therefore, the Roman law explains the validity of the contract of sale by stipulating the obligations of the buyer and the seller.

Pay the price and transfer ownership of the price to the seller. In a sales contract, the price paid by the buyer is the consideration for the acquisition of the subject matter. Although the buyer only obtains the possession of the subject matter, he still has to pay the price, which is an important embodiment of the double-duty contract. Buyer pays price gold, in principle ought to transfer with the person that sell the thing that have to fulfil at the same time, unless party has special agreement. For example, credit sale means payment after delivery, while advance purchase means payment before delivery. If the buyer has questions about the ownership of the subject matter, the seller can be required to provide appropriate guarantees or guarantees, otherwise the buyer can refuse to pay or pay less money. "In the event of any doubt of title by the purchaser before payment of the price, the seller shall not, in such case, compel payment of the price unless the seller has provided a reliable security for the recovery".

In a sales contract, both parties shall, in principle, perform their obligations simultaneously. Therefore, when the seller transfers the possession of the subject matter, the buyer should receive it in time. Otherwise, the buyer should bear the liability for delay and the risk of accidental loss. "If the person who bought the stones on the land does not want to take them away, then the seller may force the purchaser to take them under the action of sale." At the same time, in the contract of sale under Roman law, the buyer shall also compensate the seller for the expenses incurred in protecting the sold goods from the conclusion of the contract to the delivery of the goods. Rabeot and trebhatti both argued that a sale action could also claim reimbursement for costs paid for the sale, such as the sale of a small home. The expenses paid may be refunded in accordance with the action of selling the goods. The suit also applies to the restitution of fees paid after the contract or before delivery for the treatment of slaves working in the countryside or, if the buyer is willing, for the training of slaves. In the event of the death of a slave who was not the fault of the seller, the seller may also, under this action, claim payment for the funeral expenses of the dead slave. This provision of Roman law is due to the buyer after the completion of the sale contract to bear the risk of the subject matter and have its interests.

In the contract of sale and purchase in Roman law, the main obligation of the buyer is to pay the price, and the buyer should perform this obligation in time, otherwise it will bear the responsibility of failure or delay in performance. The buyer assumes this liability in the form of interest on the price for the period in which the obligation is not performed. However, the interest on the price paid by the buyer here does not include the interest available to the seller without delay. "If the buyer delays in paying the price to the seller, then he will only pay the seller the interest on the delay and not the benefit to the seller that would have been obtained had the delay not occurred." If the seller is a merchant, then the buyer pays him only the deferred interest and does not reimburse him for the interest he can gain in the transaction by the price paid on schedule. The issue of "expected benefits" is involved here, in general. If the seller is a businessman and has been engaged in commercial activities on a regular basis, then the benefit to be gained from this price is certain. In a contract of sale, the buyer appears to be paying for the loss of this available benefit to the seller due to its delay. However, the acquisition of this expectable interest is not inevitable, because there are still many conditions that the seller does not often engage in commercial activities, so this interest itself has great uncertainty, and Roman law does not support the acquisition of this "expectable interest" of the seller. The contract of sale is an agreement between the parties concerned on the transfer of possession of the subject matter. Once the contract is established, the buyer bears the risk of buying and selling the subject matter and pays the seller's expenses for keeping the subject matter. Therefore, before the subject matter is delivered, the seller shall have the obligation to properly keep the subject matter. Because, at this time the subject matter is still under the control of the seller, the seller of the sale of the subject matter should bear and use loan contract in the same responsibility. It is the duty to take the most precise care of one's own things. Thus it can be seen that what the betrayer is doing here is the diligent duty of the "good father". "This obligation can only be waived in the event of force majeure and unavoidable loss." At the same time, the seller also has the obligation to transfer the possession of the subject matter to the first recipient. This delivery of the subject matter refers to the delivery of the item that originally belonged to the seller but now belongs to the buyer. The seller shall, at the time of delivery, assure the buyer of its superior position in the action of possession, failing which, it shall be deemed not to have delivered. In other words, the seller shall "deliver the commodity to the buyer in accordance with the contract and enable him to enjoy the commodity without worry". The seller transfers possession of the goods, not necessarily ownership.

As mentioned above, the seller of this delivery is not a simple transfer of possession, but also to ensure that this possession must be free, exclusive, so that the buyer to use the subject matter and proceeds. In other words, the seller also has the obligation to guarantee the buyer's possession, and not to be pursued by others. Neraty held that the seller should assure the buyer of its superior position in the action of possession when delivering the goods. Julian, in part 15 of the digest of doctrines, also Shared this view and further stated that if the buyer was not in an advantageous position in future possession, then it should be considered that there was no delivery. This is particularly important in Roman law regarding the sale of other people's goods. The fact that Roman law allows the sale of what is not his own, that the seller is not the owner, does not in itself affect the validity of the contract of sale. You can sell things that belong to other people. It's a business. But the buyer is in danger of losing the property. Therefore, in the small contract of sale, it requires the seller to assume without malice to make the buyer peace without disturbing the possession, until the acquisition through the prescription into the owner. This is the obligation that the seller undertakes to seize the guaranty from the buyer. In the sales contract, once forced seizure occurs, the buyer can file a purchase action to request compensation for the loss suffered by the object being seized.

This kind of guaranty obligation that the place that sells a person bears is to point out the agreement that sells a person to the subject matter that oneself deliver ought to assure its accord with bilateral party. This is in the sale contract is the typical good faith, the consensual contract nature decides. "If a person conceals information about an adjacent landowner when selling land and decides not to purchase the land after the buyer hears about the owner of the adjacent land, then the seller is liable for that. If the seller claims that the slave has an advantage and the owner finds that the facts do not conform to his claim, the buyer may Sue for return or valuation. Therefore, it can be seen that the quality defect guarantee obligation of the seller against the recipient is universal in the first sale contract, which is of great significance to enhance the transaction credit, eliminate the buyer's concerns, and further promote the development of commodity economy. In this issue, it should be noted that the seller is not the subject of all the defects are liable for security obligations. Such defects are limited to those hidden in the interior without being discovered by the general inspection, while for those surface and obvious defects, they are not mentioned because they are easy to be found by the buyer. Peddlers are thus exempt from liability. For example, a blind slave or a slave with a visible scar on the head or other parts of the body is sold, for which the seller shall not be liable for an implicit defect, according to kechiri. In the same way, the seller shall not be liable for other apparent defects. For the magistrate's notice shows that it applies only to diseases and defects which are neglected or may be neglected. At the same time, it is necessary to distinguish the quality defects in the sales contract from the "bona fide fraud" common in Roman law. The latter was a widespread display of the quality of the goods in the Roman market, and, because it was done in good faith, was therefore a "legitimate fraud". The seller is not responsible for this. But if the seller guarantees the quality of the goods he is showing off, it cannot be exempted from liability when it constitutes a quality defect. For example, the seller bragged about how beautiful his slaves were; 'or' how well the house was built. However, if the seller claims that his slave is educated or has a certain skill, he is bound by it. Because the seller would get a higher price for what he claimed were the advantages of slavery.

A sales contract is an agreement reached by the parties concerned on the delivery of the subject matter and the payment of price. The buyer acquires the possession or ownership of the subject matter at the cost of the payment of price, with a view to obtaining benefits through the possession or use of the subject matter. If the seller is unable or fails to perform its obligation to deliver the subject matter in a timely manner. The acquisition of the buyer's "available interest" will be impaired. Read this, betray a person ought to undertake to vendee fulfill the responsibility that cannot or delay, compensate vendee the loss that causes because of this. Because it is in the buyer's interest to own the sale, and sometimes that interest often exceeds the price paid by the buyer for the purchase. For example, the benefit exceeds the value of the item itself or the price at which it was purchased. It is on this basis that "I shall not only transfer to you what I have acquired through the slave, but shall also compensate you for what you have lost, if I had delivered the slave by the prescribed time." "In the event that the seller fails to deliver the goods for sale on account of the seller, the full benefit that the goods can bring to the buyer at that time shall be assessed". Thus, in Roman law, the seller's liability for failure or delay in performance is not limited to the value of the subject matter itself, but also includes the loss caused by the buyer's failure to own the subject matter.

The validity of the contract of sale is mainly manifested in the obligations of both parties in the contract. This paper analyzes the main obligations of both parties in the contract of sale in Roman law by means of historical literature review. Right transfer and risk bearing are important parts of the contract theory of the Roman law. Through to the sales contract effectiveness theory discussion and elaboration, this paper argues that the effectiveness of the Roman law first sell contract in form though and modern contract effectiveness is the same, but it has always embodies the commodity economy developed in the early Roman society contract spirit and the concept of autonomy, represented under the condition of socialist market economy development and the direction of the modem contract legislation. Therefore, although the Roman law is far away, the research on the validity theory of the contract of sale is still of great theoretical and practical significance.

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