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§ 1. Perception of doctrine Labeona in prokulianskoj to school

The doctrine about contract Labeona has been apprehended in based by it

prokulianskoj to school [758]. prokul addresses to a problematics of qualification of the atypical transaction with mutual obligations in a following fragment ^.

12.4.3 - 4):

Ulpianus 26 ad ed. Ulpian, 26th book of the comment to ediktu:

3. Quid si ita dedi, ut intra certum 3. That [will be], if I have given you [money], that

tempus manumittas? si nondum you through certain time have made tempus praeteriit, inhibenda erit manumissiju [the Verse slave]? If term yet repetitio, nisi paeniteat: quod si has come, the requirement about return deviates, praeteriit, condici poterit. sed si unless only he will not change the mind: if term stichus decesserit, an repeti quod has come [and you have not made manumissiju], datum est possit? proculus ait, si it is possible to submit kondiktsionnyj the claim. But if post id temporis decesserit, quo the Verse has died, whether what manumitti potuit, repetitionem has been given can be obtained on demand? prokul says, that if he has died esse, si minus, cessare. After approach of term for manumissii,

The requirement about return of that is given, remains, if is not present, is lost.

4. Quin immo et si nihil tibi dedi, 4. But, however, also if I have not given you anything,

ut manumitteres, placuerat so that you have made manumissiju, but we tamen, ut darem, ultro tibi have agreed, that I will give, you can competere actionem, quae ex hoc to act with the counterclaim from this contractu nascitur, id est the contract, i.e. kondiktsiej, if it too

condictionem defuncto quoque will die. eo.

The fragment is endurance from 26th book of the comment to ediktu Ulpiana, to the devoted questions kondiktsii, and is placed in a similar heading in Digestah [759]. The text, probably, is deformed. In § 4 after words «ultra tibi competere actionem, quae ex hoc contractu nascitur» («you can act with the counterclaim from this contract») expression «id est condictionem» («i.e. kondiktsiej») [760] is added. It is interpolation since mismatches the general logic of a narration. Doubts express also that to prokulu, instead of Ulpianu there ascend the decisions fixed in § 3 and § 4 [761]. At last, discussions use in § causes 4 concepts «placuerat» in value «to conclude the contract» [762]. In our opinion, the bases for serious suspicions in authenticity of statement prokula are not present [763], behind an exception

Phrases «id est condictionem». In § 3 the bases of application so-called condictio ex paenitentia [764], kondiktsionnogo the claim for the refund, data in exchange for counter manumissiju, i.e. slave remission on will if it became impossible are considered. Two situations when manumissija could not occur owing to death of the slave after approach of term for manumissii and before approach thus understand. The impossibility of execution after approach of term for fulfilment manumissii leads to infringement of the obligation [765] and to application kondiktsionnogo the claim the person who has transferred money for their return [766]. In case of  destruction of the slave before term for manumissii the objective impossibility of execution excludes their refund aktsipientom. Here the risk of  destruction of such slave bears tradent money.

According to A.Burdeze, the fragment problematics is similar to questions of transition of risk in kupleprodazhe and principle action periculum est emptoris [767]. The case in § 3 also resembles presented in fragment D. 19.1.50 where Labeon analyzes distribution of risk of  destruction of the goods before its transfer through a principle of conscientiousness [768]. From a position of doctrine Labeona (D. 50.16.19) the real transaction in the resulted text on models datio ut manumittas was the certificate (actum) as in it there was no reciprocity of obligations in the presence of counter grantings [769]. Choice prokula in advantage kondiktsii means refusal to see in the assorted transaction the contract according to doctrine Labeona about the contract.

With other explanation of decision prokula F.De Robertis acts. Innocent default of one of grantings, according to the researcher, attracts the restitution received by the counterpart. Decision prokula corresponds to a principle developed during the classical period and reproduced in Code JUstiniana (CI 4.6.10) according to which the restitution is subordinated to fault aktsipienta and in case of absence of intention from its party or guilty infringement of the obligation by it allows to keep received at approach of impossibility of execution [770]. The admission of term for manumissii in § allows to assume 3 fragments, that the fault from the party aktsipienta money took place. It has entailed use kondiktsionnogo the claim. The choice in advantage kondiktsionnogo the claim in turn specifies that the real exchange transaction in which at the same time there was no reciprocity of obligations, did not represent the contract.

Influence of contract Labeona on decision prokula becomes even more obvious at the following analysis § 4. In it the statement structure varies, and prokul from the real transaction on model «do, ut manumittas» passes to konsensualnomu to the agreement from which there are mutual obligations that is put into words: «Quin immo et si nihil tibi dedi, ut manumitteres, placuerat tamen, ut darem...» («But, however, even if I have not given you anything so that you have made manumissiju, but we have agreed, that I will give...» ). Difference from the previous paragraph consists and that here the first the duty carries out the person to whom the duty on manumissii the slave [771] is assigned. The phrase «ultro tibi competere actionem, quae ex hoc contractu nascitur, defuncto quoque eo» («you can act with the counterclaim from this contract») directly specifies, that the reason of granting of the claim are contractual relations of the parties. Expression «ultro actio» hints that at aktsipienta there is a counterclaim about execution. It is possible to assume, that prokul under ultro actio understands the claim which has been thought up Labeonom, i.e. agere praescriptis verbis. A.Burdeze in which opinion «id est condictionem» in a final part is not interpolation adheres to other sight. In § 4 unlike § 3 (where the transaction on type do understands, ut manumittas). prokul transfer of money addresses to the transaction on model «manumitto ut des» where in the beginning has occurred manumissija, and then. Such change of sequence of grantings has forced prokula to choose in advantage kondiktsionnogo the claim with the uncertain maintenance which he ostensibly means in words «ultro tibi competere actionem, quae ex hoc contractu nascitur, id est condictionem». Thus the claim condictio incerti in this case carries out function of the contractual claim about execution of a contract [772]. But even if to apprehend interpretation Burdeze according to which the claim condictio incerti was the contractual claim with uncertain intentsiej, also confirms, that prokul identified in § 4 first of all the contract [773].

About approach prokula to qualification of atypical agreements we learn also from a following fragment (D. 19.5.12):

Proculus 11 epist. prokul, 11th book of letters

Si vir uxori suae fundos vendidit et in If the husband has sold to the wife

venditione comprehensum est the ground areas and in the contract

convenisse inter eos, si ea nupta ei esse to sale the agreement between them, that if eodem pretio mulier transcriberet viro has been reached desisset, ut eos fundos si ipse vellet: it will cease to be his wife, it in factum existimo iudicium esse will return it under its requirement same reddendum idque et in aliis personis the ground areas under the same price, observandum. I believe, that should be given

The formula upon and the same it is necessary to observe concerning other persons.

The case when between spouses the transaction on which conditions the husband sells to the wife the ground areas under a condition has been concluded understands the text, that in case of divorce the wife will return to their former husband under the same price. prokul believes, that the husband for requirement realisation about return sale should use the claim with the formula upon (in factum iudicium) [774]. In a fragment there is no substantiation resulted prokulom decisions. artner has assumed, that the contract of purchase, probably, included a condition about return sale, and after divorce the husband could oppose actually the former wife with the claim from the purchase (actio empti). prokul, nevertheless, addresses to the claim upon. Labeon for cases of the mutual contracts including elements of purchase and sale, used agere praescriptis verbis (D. 18.1.50; D. 19.5.20 pr.) . To solve decision prokula it is possible, having addressed to expression interpretation in factum iudicium. It can specify in the claim upon, intentsija which had civil character. Probably, in factum iudicium means the claim repeating the claim praescriptis verbis, i.e. actio in factum civilis [775 [776]. In it indirectly specifies position of our fragment in 5th title of 19th book Digest «De praescriptis verbis et in factum actionibus», devoted to claims with the business description in preskriptsii.

About perception of doctrine Labeona in prokulianskoj to school speaks also a fragment of its other representative Neratsija (D. 19.5.6):

Neratius libro primo responsorum neratsy, the first book of answers

HHH

Insulam hoc modo, ut aliam insulam You have sold to me the house thus, reficeres, vendidi. Respondit nullam that I have repaired another. esse venditionem, sed civili intentione neratsy answers, that sale is not present, but incerti agendum est. Follows vchinit the civil claim with

Uncertain intentsiej [777].

The fragment is inspired by discussion prokuliantsev and sabiniantsev about a parity of exchange and purchase and sale [778]. From it we learn, that neratsy refuses to see purchase and sale in the absence of the adjusted price in money. Derivativeness of the contract from purchase and sale proves to be true verb use «vendere» in the first offer. At the same time independence of such agreement in relation to the purchase and sale contract forces neratsija to use civil with uncertain intentsiej, possibly, designating actio civilis incerti in understanding Labeona.

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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 § 1. Perception of doctrine Labeona in prokulianskoj to school:

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  2. § 4. The doctrine about contract Labeona in the light of problems of contract typicalness. The claim agere praescriptis verbis
  3. § 2. School of the pure doctrine about the right: a general characteristic of ideas
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  5. Subject factors of perception of the political leader Influence of the subject factor on process of political perception
  6. § 3. Use contractum in other fragments Labeona
  7. § 1. A theme of 1st book of the comment to ediktu Labeona.
  8. 1.2.3 Communicative and temporalnye perception factors Communicative factors of perception of the political leader
  9. Chapter 3. Formation of the contract after Labeona
  10. 1.3. Influence of spiritual and scientifically-world outlook potential of humanitarian disciplines on formation of historical consciousness of grammar-school boys in a domestic classical grammar school
  11. 1.1. Doctrine development about essence of the legal person in the domestic and foreign civil doctrine.
  12. Chapter 2. Perfection of the maintenance of historical consciousness of grammar-school boys in a domestic classical grammar school of second half XIX - the beginnings of XX centuries and its value in a present context
  13. Factors of influence on perception of candidates in presidents
  14. 1.2. Development of a historical science as one of significant a determinant of formation of historical consciousness of grammar-school boys in a domestic classical grammar school
  15. Temporalnye factors of perception of the political leader
  16. 2.7. Perception of time
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  18. Gogol in perception Aldanova