The passing of risk in the contract of sale: a look at the past to better understand the present
The theory of risk in the contract of sale, as it has traditionally been posed, is intended to answer the following question: if the object of the sale is lost, destroyed or damaged without any fault on the part of the seller after the conclusion of the contract, but before the buyer receives it, does the buyer “bear the risk”? In other words, does he have to pay the purchase price although he does not receive the goods, or although he receives them in a damaged state?
The origins of this theory remain uncertain. However, the prevailing opinion is that, as far as Roman law is concerned, the rule was that the risk is to be borne by the buyer (periculum est emptoris). However, such a solution has often been considered in conflict with the bilateral nature of the contract of sale.
The purpose of this presentation is to retrace the uncertain origins of the aforementioned periculum est emptoris maxim and to reflect on how it has been received, transformed or rejected by different legal systems.
Spanish law seems to maintain this ancient rule to the present day and, in view of a hypothetical recodification of contract law based on a unitary notion of breach of contract, Spanish jurists wonder what the future of the rules on risk in the contract of sale should be.
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