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Authors: JUANITA GOICOVICI.
DOI: 10.24193/SUBBiur.65(2020).4.9
Published Online: 2021-04-16
pp. 327-365
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ABSTRACT.
The vendor’s warranty against eviction is often seen as a corollary of the vendor’s obligation to transfer the durable, satisfactory and tangible possession on the sold goods; however, its evolution under the Roman Law, as well as its conceptual roots deserve a detailed approach. The study examines the auctoritas subsequent to the completion of a mancipatio, which had been designating, instead of the material and concrete act of judicial assistance in a court of law, the obligation to provide for this assistance and later the transferring of property act generating this type of obligation, while keeping in mind that, at the origins of the conception on the auctoritas one can find the vendor’s duty to assist the buyer in court when confronted with the third party’s attempt of eviction. The analysis also encompasses the progressive extension of the stipulatio duplae, in the perimeter of the transfer of rei mancipi sine mancipio, as well as in the case of the rei nec mancipi transferring. One may observe the manner in which the features of the auctoritas procedure are contoured as depicting the characteristics of a tort action or, more specifically, of an action of a mixt judicial nature valorising the plaintiff’s rights consequential to the eviction.
Keywords: warranty against eviction, mancipatio, purchaser, Roman Law.
