As far as the transference of the risk in the sale of heritable property is concerned, there are oddities emerging from the comparison between Scots law and the “Continental” counterparts, particularly, the Italian jurisdiction, utilised within the context of this contribution as a sort of yardstick and parameter of analysis. More specifically, in a jurisdiction such as the Scottish one, usually defined as the stereotype of a mixed legal system and, therefore, by definition a sort of paradigm of virtuosity, the conclusion of the missives (or preliminary contract, to use a correspondent “civil law” nomenclature), for the purposes of the transference of heritable property, marks the passing of the risk from the seller to the buyer, consistently with the Roman tradition (consensual approach). However, quite bizarrely, despite a court decision of more than two decades ago, where this arcane should have been dispelled eventually, with clear adoption of the Roman rule, Scots Scholars seem ot have preferred not to somatise this principle in their legal corpus, particularly in terms of practice, by preferring a more conventional (and probably English!) system based on the agreement between the parties and where usually the passing of the risk is postponed to the settlement.
On the same subject, the Italian jurisprudence, by definition hinged upon its own Roman pillars, did manage to implement its own principles and precepts, through a coherent application of the maxim res perit domino but without the consensual Roman law approach, this different position being the outcome of the theorisation of the consensual contracts with “real effects” and those with “personal effects”, extraneous to the Scottish tradition, where a mere demarcation line between consensual contract and “re contracts” is traced.
Additionally, the contribution, also as a result of an analysis, of both philological and semantic nature, attempts to demonstrate that, probably, in Scotland, where currently, at common law, the rule adopted in terms of passing of the risk is the Roman Law one (contractual approach), there might have been a misunderstanding, in the way the maxim res perit domino has been usually interpreted (erroneously, to sign the phenomenon of the passing of the risk at the time of the conclusion of the contract), and, ultimately, a conceptual intellectual confusion with the brocard “periculum rei venditae nondum traditae est emptoris”.
On these premises, the paper attempts to clarify if and how the passing of the risk of the sale of heritable property is disciplined in the two jurisdictions, Italy and Scotland, against the background of the “common ancestor”, and how differently two Latin maxims have survived and/or reverberated in each of them. More pretentiously, it is also suggested how the matter could be governed, more coherently; particularly, it is investigated whether the proposal of amendments of the Scottish Law Commission of two decades ago, whose aim was fundamentally to postpone the passing of the risk to the entry date or, if earlier, with the taking of the possession by the buyer, could be, on the one hand, reconsidered in Scotland, on the other hand, even exported to the Continent as a parameter for every sale of heritable property.
|Translated title of the contribution||‘The Passing of the Risk in the Sale of a Heritable Property and the Obscure Roman concept of Res Perit Domino in between Scotland and the “Continental” tradition’|
|Number of pages||21|
|Journal||Contratto e impresa/Europa|
|Publication status||Published - 1 Jun 2014|