<<
>>

§ 2. Divergences of schools in understanding of the barter

Divergences between sabiniantsami and prokuliantsami in understanding

The contract and problems of contract typicalness were showed in discussion about a recognition and protection of atypical contracts (nova negotia) [779].

Dispute of two schools concerning independence of legal type of the barter became its display. It is concentrated round a question, whether it is possible to consider exchange by a purchase and sale version, or it is the independent contract. The conflict sabiniantsev and prokuliantsev has found reflexion in three fragments - two of them are presented in Guy's Institutions (D. 3.141) and institutions JUstiniana I. 3.23.2), the third in Paul's comment to ediktu in Digestah (D. 18) [780] to which it is reversible:

Paulus 33 ad ed. Paul, 33rd book of the comment to ediktu

Origo emendi vendendi quea permutationibus coepit.olim enim non ita erat nummus neque aliud merx, aliud pretium vocabatur, sed unus quisque secundum necessitatem temporum acrerum utilibus inutilia permutabat, quando plerum que evenit, ut quod alteri superest alter id est. Sed

The origin the purchase and sale take in exchange. Once there was no money and one yet was not called as the goods, another the price. But everyone changed according to requirements of time and circumstances unnecessary on necessary because often there is, that that usually has one, is absent at another. But

quia non semper nec facile concurrebat, ut, cum tu haberes quod ego desiderarem, invicem haberem quod tu accipere velles, electa materia est, cuius publica ac perpetua aestimatio difficultatibus

permutationum aequalitate quantitatis subveniret. Ea quem at materia forma publica percussa usum dominium que non tam ex substantia praebet quam ex quantitate ne cultramerxutrumque, sed alterum pretium vocatur.

1. Sed an sine nummis venditio dici hodieque possit, dubitatur, veluti si ego togam dedi, ut tunicam acciperem. sabinus et cassius esse emptionem et venditionem putant: nerva et proculus permutationem, non emptionem hoc esse. sabinus homero teste utitur, qui exercitum graecorum aere ferro hominibusque vinum emere refert, illis versibus [...] sed hi versus permutationem significare videntur, non emptionem [.] sed verior est nervae et proculi sententia: nam ut aliud est vendere, aliud emere, alius emptor, alius venditor, sic aliud est pretium, aliud merx: quod in as seldom and hardly coincides, that when at you something is, that I wish, and, on the contrary, I have that you wish to receive, the material has been chosen, whose public and constant value fairly promotes overcoming of complexities of exchange transactions at the expense of quantity. And this material which has been rapped out by the state, creates the price and possession not because of a material, and because of quantity, and not both materials are already designated by the goods, but one of them the price.

1. But there is a doubt, whether it is possible to speak now about sale if coins do not participate in it, for example, if I have given a toga to receive tuniku. Sabine and Kassy think, that in this case there will be a purchase and sale, the Nerve and prokul, that it is exchange, instead of the purchase. Sabine uses certificate G omera which informs, that the army of Greeks bought wine on copper [.] These lines obviously specify in exchange, but not on the purchase [...] But more true the opinion Nerves and prokula for as one - to sell is, another - to buy, one - the buyer, another - the seller, as

permutatione discemi non potest, uter the price is one, and the goods - another; at emptor, uter venditor sit.

To exchange cannot be discriminated, who

The buyer and who the seller.

The text is led by Paul in introduction to a heading edikta, the devoted purchase and sale [781]. Paul considers a question on a parity of exchange and purchase and sale in historical and dogmatic prospects [782]. It connects occurrence of purchase and sale with coin introduction as universal payment means, and also inconvenience of a direct exchange which demands as the precondition of coincidence of requirements of its participants. The history of occurrence of the contract of purchase in Paul's statement is conditional [783]. Paul tries to displace a dogmatic problem of differentiation of legal types of exchange and purchase and sale in historical prospect [784]. Insufficiency of a historical explanation is the reason, on which else for Paul (on what under the text specifies an adverb «hodie») the question of a parity of purchase and sale and exchange remains actual and debatable. Argumentatsionnyj a break in a statement, Paul's transition from an exchange and purchase and sale historical link to their dogmatic comparison shows, that legal differences of two contracts demand a separate reflexion [785]. Sabine and Kassy, apparently from the text, did not see differences between the price and the goods and considered exchange as a purchase and sale kind. Sabine unsuccessfully refers to the Homere confirming to the hypothesis. Its argument has been scarified by Paul, seen in words of the Greek poet the instructions on independence of exchange in comparison with purchase and sale («sed his versus permutationem significar evidentur, non emptionem») are faster. Paul joins the decision Nerves and prokula, marking different character of obligations of the seller and the buyer and difference between the goods and the price.

Dispute on exchange returns us to discussion about perception of doctrine Labeona in prokulianskoj to school. In the literature influence Labeona on an exchange recognition is challenged by the independent contract. For example, according to M.Sardzhenti, exchange mismatches ultra citroque obligatio [786], and the question on differentiation between the goods (res) and the price (pretium) was the basis of discussion of two schools. In a similar way G hallo sees in exchange the real transaction with mutual character of grantings in the absence of reciprocity of obligations [787]. At the same time exchange could have a configuration of the consensual contract and mutual character of the obligation [788]. In Institutions JUstiniana prokulu qualification of exchange as the contract in following words I. 3.23.2) is directly attributed: «... Proculi sententia dicentis permutationes propriam esse speciem contractus a venditione separatam merito praevaluit...» . Possibly, prokuliantsy considered exchange as konsensualnuju the transaction from which there is a mutual obligation [789]. It speaks, that prokul directly names exchange by a special kind of the contract (species contractus), distinct from purchase and sale.

It is possible to assume, that if prokuliantsy saw in exchange the transaction with real structure the argument should be other. Followers Labeona could specify, that exchange in understanding of the last is the certificate (actum) and cannot be identified with purchase and sale which is the contract. prokuliantsy, nevertheless, are concentrated to goods and price differentiation. But the attention to this secondary question had a condition the permission of an intrinsic question on qualification of exchange as the consensual contract which prokuliantsy have already solved. In possibility of an estimation of exchange as consensual contract with sinallagmaticheskoj structure of obligations specifies the text (D. 12.4. 4) in which prokul the transaction on model «do, ut facias» considers as the contract (exchange on character of grantings had similar structure «do, ut des»).

Isolation of exchange from purchase and sale corresponds to general installation Labeona on understanding of contractual type. It is known, that he suggested to look in each contract at the agreement (initium) and a legal ground (causa) (D. 17.1.8). Exchange certainly has a legal ground which is distinct from sale and purchase (causa) that attracts to its qualification as independent sinallagmaticheskogo the contract. The exchange and purchase and sale identification sabiniantsami shows, that they drop institutsionalnyh outlines of the right and try to avoid dogmatic deadlocks, expanding known types of contracts.

<< | >>
A source: Novitskaya Anna Andreevna. DOCTRINE FORMATION About the CONTRACT In the ROMAN JURISPRUDENCE. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2014

More on topic § 2. Divergences of schools in understanding of the barter:

  1. Change struktu ry the share capital with barter application
  2. 2.3. Process of understanding reading. The abilities necessary for achievement of understanding
  3. 3.1. Divergences in exact volume of concept, vyrazhaemogoterminami IJA and PJA
  4. 2.3.2. Divergences in lexical structure of terms IJA and PJA
  5. 2.3.3. Divergences of lexical and grammatical structure of terms IJA and PJA
  6. 2.3.1. Divergences in morfo-syntactic structure of English compound terms and their Russian equivalents
  7. 2.3. Divergences in the lexical! Structure and morfo-syntactic structure of terms And I and PJA and their influence on equivalence of transfer
  8. Divergences in lexical significance of non-nuclear components of compound terms IJA and PJA
  9. 2.5. An imagination role in understanding of the text. Ways of its development and ways of its application at reading for achievement of understanding of the text
  10. practical statement of music education at schools of Russian abroad
  11. § 2. Criticism N.M.Korkunovym of classical schools of scientific knowledge of the right
  12. THE CHAPTER I. THEORETICAL BASES OF MUSIC EDUCATION AT SCHOOLS OF RUSSIAN ABROAD
  13. APPENDIX A the Basic indicators of activity of high schools of the Russian Federation
  14. criticism N.M.Korkunovym of classical schools of jurisprudence from a position of complex logic of knowledge of the right
  15. the Review of scientific schools on a problem of strategic management
  16. 2 CONDITION AND PROSPECTS OF INNOVATIVE DEVELOPMENT OF HIGH SCHOOLS OF RUSSIA
  17. § 3. Independence of pedagogical workers of high schools in realisation of freedom of educational and scientific activity
  18. the Analysis of innovative activity of high schools, an infrastructure condition kommertsializatsii high school researches and workings out
  19. Chapter 2. DIALECTICS of INTERFERENCE of SUBJECTS of FREEDOM of TEACHING And SCIENTIFIC CREATIVITY IN HIGH SCHOOLS