Les origines historiques de la vente

The contract of sale formed by the non-solemn exchange of expressions of reciprocal and concordant wills is a consensual contract consisting in the exchange of a thing for its price. The sale generative of obligations constituted a foreign idea to archaic societies. In primitive legal thought, except for delictum, an obligation could arise only from solemn acts. Among all the legal systems of Antiquity, the birth of a legally enforceable obligation from a non-formal agreement is recognized solely by the Roman system. Before the appearance of the consensual sale in the second century BC, the exchange of property for its price was realized spontaneously in a single legal act. In this period, the sale was a non-binding cash sale, with the exception of the obligation of auctoritas, simply transferring the material control of the thing. Several hypothesis have been stated on the question of how consensual sale has appeared in the historical process. The theory that stands out from others is the one that defends that consensual sale has developed from the mancipation, until then a cash sale. There is no doubt that the pecularities of the consensual sale result from a started yet not completed cash sale. The convention and the delivery of the thing first splited up into two different acts in the sale of immovable properties. The principle of bona fides, developped by the Romans under the influence of Greek philosophy, obliged the seller to complete the act of sale already begun. Thus the consensual sale appeared.