This paper analyses a famous excerpt from the roman jurist Paulus on the barter (Paul. 32 <33> ad ed. D.18.104.22.168). According to the scholars this passage lists (even if confusedly) the available procedural remedies against the defaulting party, given the institution of a valid contract: action in id quod interest, aimed at obtaining a specific performance, and the condictio quasi re non secuta, for the recovery of what has already been given. However, this reconstruction does not consider the connection (igitur) with the previous § 3, in which it is affirmed that barter is void when a party delivers a third party property. So the author suggests to abandon Mommsen’s reconstruction based on Bas.20.3.1 and Paul 5 quaest. D.22.214.171.124, and to read, as cod. Vaticanus n. 1406 ‘ut interest’, instead of ‘ut res’ contained in F. The meaning of the passage will thus appear clear: since the delivery of a third party good makes the contract void, the only available remedy will be the recovery quasi re non secuta and not the enforcement of a performance. The alteration of F. was probably caused by an error in the transcription. The new interpretation discussed in this paper poses two interesting questions with regard to the application of the extension (quasi) of the condictio re non secuta or, less likely, of condictio incerti.
|Numero di pagine||0|
|Rivista||TEORIA E STORIA DEL DIRITTO PRIVATO|
|Volume||V - 2012|
|Stato di pubblicazione||Published - 2012|