ABSTRACT
If a thing is sold before either it comes into existence or it is got by the vendor, the buyer may assume the full risk of the thing’s coming into existence as well as its obtaining by the vendor, consequently the price must be paid even if no result emerges. The contract of this kind was elucidated by the Roman jurists as a spei emptio, in which, according to subsequent doctrinal explanations, the hope of the future acquisition (spes) and the risk of the transaction (alea) can be interpreted either as the subject or the motive of the transaction. There are some analogous transactions, in which the parallel character is expressed by our legal sources, and there can be discovered some other, in the case of which the analogy is based merely on the similarities of risks but not on the letters of our sources.
The concept of spei emptio has survived and transformed in the European Continental legal thinking. While English case law knows the issue of ‘purchase of a chance’, and some Authorities of jurisprudence also acknowledge the existence of ‘hope rights’ and of the ‘sale of an expectation’, such sales are regulated in statutory laws of England under the concept of the sale of future goods but not as sale of hope or chance. Both in federal and state level, the legal systems of the United States drew extensive inspirations from the English and the Continental legal tradition as well, and, according to this, the ideas thereof emerge like karst springs both in the jurisprudence, and in the statutory as well as case law of the US. The original Continental concept may have been adopted, remodeled, reinvented, unlearned, omitted, or deliberately abolished by legal thinking of US-States. The article can be assigned both to legal history and legal theory since the analogous issues of legal thoughts may be based either on historical continuity or on the independent albeit parallel development of law.
Benke, József, The Concept of ‘spei emptio’ and Its Reminiscences in Anglo-Saxon Legal Thought with Special Regard to the USA: At the Boundaries of Legal History and Theory (January 1, 2023), Legal Roots, volume 12, 197-252 (2023).
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