D.12.4.16 – КУПОПРОДАЈА ИЛИ НЕОСНОВАНО ОБОГАЋЕЊЕ?
D.12.4.16 – SALE OR UNJUSTIFIED ENRICHMENT

Summary/Abstract: In the XII book of the Digest stands a text in which Celsus denies the existence of sale when one party gives money in order to receive a slave. However, that situation, i.e. a monetary exchange, in usual circumstances always constitutes a contract of sale, rendering it necessary to pose the question – why did Celsus make a decision which is, at face value, contrary to the general principles of the Roman law of obligations? Examining the answers that have already been given in the literature, the author discusses several possible solutions and points out their respective key dilemmas. The explanation that the contract was concluded under a fully potestative condition stands out as the simplest, while the theses of an exchange with payment and of a special structure of the transaction which excluded the contractual action stand out as especially inventive. The author takes a critical stance towards the principle of vacuam possessionem tradere and tries to show its limited practical scope.

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