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Published online by Cambridge University Press: 16 January 2009
Measures, such as weights, were used in the Roman law of sale for two purposes, (a) to determine the amount of the price of a given lot, and (b) to separate the object of sale from a larger bulk. Weights which are heavier than they should be always operate in favour of the buyer, while weights which are too light always benefit the seller. But it is here suggested that this fact has tended to blur the distinction between the two cases which ought to be considered separately, and that consequently there has been some confusion in the interpretation of certain texts, dealing with the effect of false measures.
1 Sale of a genus (i.e., of goods by description, not from an existing stock) was not considered to come within the scope of emptio venditio at all, according to the best opinion, de Zulueta, , Roman Law of Sale, 16Google Scholar, ArangioRuiz, , La Compracendita nel diritto romanoGoogle Scholar, I.121.
2 It may well be that nisi … non sit is interpolated (Albertario, , Filangieri, 36, 811Google Scholar), but the doubts of Heldrich (Das Verschulden beim Vertragsabschluss, 36, n. 2) as to the rest of the text are without foundation. D.19.2.19.6., which he cites, is not relevant.
3 Lenel, Pal. 388.
4 The change of person, ego—venditor, and of tense, emisset—circumscriptus sit; the illogicality of ergo, Haymann, Z.S.S. 40 (1919) 353, cf. Beseler, Beitrüge, 4.133, who points out that only one case is decided by Pomponius.
5 Kunkel, Z.S.S. 46 (1926) 435, is therefore wrong in suggesting that the passage does not deal with the formation, but only with the performance of the contract.
6 Comment. ad Tit. XIX.1, Opera, edn. Venice 1758, Vol. VII, 785.
7 Loc. cit.
8 Verschulden, cit., 16.
9 D.4.3.7.pr.
10 Lenel, Pal. 1042.
11 Nam is not in the MSS but is supplied by most editors.
12 Contrectatio (1941) L.Q.R. 472.
13 Jolowicz, Dig. XLVII.2., De Furtis, lix.
14 Op. cit. 77.
15 Loc. cit.
16 Op. cit., 78.
17 Loc. cit.
18 Lenel, Pal. 209.
19 Op. cit., 354.
20 Op. cit., 35.
21 Z.S.S. 71 (1954) 132.
22 Kübler, Z.S.S. 38 (1917) 106; Pastori, . Il Commodato nel diritto romano, 1954, 389.Google Scholar