ABSTRACT
The paper analyses both the textbook examples and the more specific cases of aleatoric or extraordinarily risky sales contracts according to the legal sources of Roman Law. The basic (textbook) examples of emptiones sine re (ie sales without the thing sold) as well as its important class, the spei emptio (ie purchase of hope), are examined through the major legal elements thereof such as: The contract’s object (the hope or chance itself or otherwise the seller’s work or the hoped thing in some way), the classification of the transaction as sale (but not as a special labour contract or a particular type of partnership), the obligations of the seller (ie the performance of facere or dare, the warranty for legal and material defects), and the obligations of the purchaser.
These major issues of the basic contract type appearing openly int the legal sources show a strong peculiarity of the contract in almost every element or aspect thereof. This uniqueness of juridical perception of the contract or otherwise the atypical contract design was based on the social policy represented by the ‘lawgiver’. After the analysis of the source-based textbook type of this contract, the paper investigates further analogous cases among sales contracts, the legal qualification of which as spei emptio either appeared in our legal sources or it did not. In the latter case, the contractual risks of the purchaser, that is obliged to pay the purchase price in any case, are so high that justifies the assessment of the contract as aleatoric, even if the Roman Jurist himself did not qualified it as such. The analogous cases are examined among four types of sales contracts, ie the sale of a fugitive slave, the sale of servitudes, the sale of receivables and claims as well as the sale of a heritage.
Benke, József, Aleatoric Sale in Roman Law (January 1, 2005), Orbis Iuris Romani, volume 11 (2006), 7-29.
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