I have been writing a paper on how Roman law is still incorporated into the case law of Great Britain, if an issue at first instant has no precedent or statute on which to stand. It is rare that it does happen, but once and a while and issue will arise which hasn't been legislated on or made law through the courts (I was shocked to discover that in the hundreds of thousands of laws, this could happen).
The case which we were assigned to study was the Sloans Dairy Case, which concerns the principle of periculum rei venditae nondum traditae est emptoris and whether or not it applies to the sale of heritable (real estate) property. The case essentially boils down to a question of when the contract became valid. As Sloans Dairy had sold, but not physically received payment for some property with developments to the Glasgow Corp. Part of the developments burned after the missives were notarized. The defendants refused full payment, claiming the valued had diminished due to the damage caused by the fire. The pursuers raised an action for a decree ordaining the defenders to make good the negotiated sale price and cough up the cash. The question for the court was when does 'risk' transfer from the seller to the buyer? According to Roman law, risk transfers when the contract is made perfect.
The question then must be asked, what are the essentials which make the contract perfect? Roman law and that of Scotland state that subject matter, price, and agreement on the essential terms. As luck would have a date was not mentioned in the contract, correspondence between the parties and thus no clear cut line could be drawn for when the contract was perfect. Roman law states that when the price and subject matter is agreed the contract is perfect. Britain has tended to accept this logic, though this means risk can transfer ahead of possession. This was the position held by the Court of Session in Sloans Dairy and the defenders were ordered to pay the purchase price (which had been agreed). While I agree with the logic, it seems a date should be considered an essential element of a contract required to be in writing.
It is amazing how much risk a buyer assumes when concluding a contract prior to the delivery of the possession. I love the quote from one judge who said the buyer accepts the risk and reaps the benefits of consequences. Another analogy which I liked was what if you commission a painting for $10,000 and you arrange to have the painting shipped to you, but in transit the artist dies, causing the value to appreciate to $20,000. The point being risk isn't always a negative.
The case which we were assigned to study was the Sloans Dairy Case, which concerns the principle of periculum rei venditae nondum traditae est emptoris and whether or not it applies to the sale of heritable (real estate) property. The case essentially boils down to a question of when the contract became valid. As Sloans Dairy had sold, but not physically received payment for some property with developments to the Glasgow Corp. Part of the developments burned after the missives were notarized. The defendants refused full payment, claiming the valued had diminished due to the damage caused by the fire. The pursuers raised an action for a decree ordaining the defenders to make good the negotiated sale price and cough up the cash. The question for the court was when does 'risk' transfer from the seller to the buyer? According to Roman law, risk transfers when the contract is made perfect.
The question then must be asked, what are the essentials which make the contract perfect? Roman law and that of Scotland state that subject matter, price, and agreement on the essential terms. As luck would have a date was not mentioned in the contract, correspondence between the parties and thus no clear cut line could be drawn for when the contract was perfect. Roman law states that when the price and subject matter is agreed the contract is perfect. Britain has tended to accept this logic, though this means risk can transfer ahead of possession. This was the position held by the Court of Session in Sloans Dairy and the defenders were ordered to pay the purchase price (which had been agreed). While I agree with the logic, it seems a date should be considered an essential element of a contract required to be in writing.
It is amazing how much risk a buyer assumes when concluding a contract prior to the delivery of the possession. I love the quote from one judge who said the buyer accepts the risk and reaps the benefits of consequences. Another analogy which I liked was what if you commission a painting for $10,000 and you arrange to have the painting shipped to you, but in transit the artist dies, causing the value to appreciate to $20,000. The point being risk isn't always a negative.
