ПРИЛОГ ТЕОРИЈИ РИЗИКА У РИМСКОМ КЛАСИЧНОМ ПРАВУ
A CONTRIBUTION TO THE THEORY OF RISK IN ROMAN CLASSICAL LAW

Summary/Abstract: According to the traditional belief, based on the texts from the Justinian compilation, there dominated in Roman Law throughout its long history the rule that the risk of accidental destruction of sold property from the moment of entering into the contract is borne by the buyer (periculum est emptoris). The author, on the contrary, is of the opinion that this is a Greek principle, which the compilators imposed by interpolating classical texts, while classical law observed the contrary principle, that up to the handing over of the sold property the risk of accidental destruction of the same is borne by the seller. Pointing out the already noted descrepancy between the principle „periculum est emptoris” and the principle of mutual dependence of obligations in synallagmatic contracts, the author comments that its application results in absurd and unfair consequences, which are not characteristic of the Roman Classical Law. Besides that, the reverse principle — „periculum est venditoris” — may also be found in some of the texts of Digesta which have evaded the compilators (for example D-18. 6. 13 and 15; 19. 2. 1, 33), as well as in „Summa Perusina”, a medieval summary of codification which, falsifying the text of the law, virtually expresses the true tradition of the classical law. The author challenges the credibility of the new, improved version of the traditional belief as well, according to which the general theory of risk originated in as late as the Justinian Law, vhiile classical law offered versatile solutions in each particular case, so that both principles had their own spheres of implementation (Rabel). The texts based on this interpretation, in the opinion of the author, are partly interpolated and therefore cannot provide the basis for reaching conclusions, and partly do not refer to the risk accidental destruction of sold property at all. The undisputed texts, on the contrary, clearly evidence that the principle — „periculum est venditoris” is applied in classical law.

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