- Title
- The end of the road for the Roman rule of risk in sale?
- Creator
- Glover, Graham B
- Date
- 2012
- Type
- text
- Type
- article
- Identifier
- http://hdl.handle.net/10962/70550
- Identifier
- vital:29674
- Identifier
- https://hdl.handle.net/10520/EJC127052
- Description
- The venerable Roman rule of risk in the law of sale – “perfecta emptione periculum est emptoris” – has always been a rule that has courted controversy, be it in the South African legal system or others where it has operated. In an excellent piece of analytical historical scholarship titled “Perfecta emptione periculum est emptoris: Why all the fuss?” Van den Bergh argued in 2008 that, despite all the ink that has been spent on critiquing the rule in the thousands of years that have passed since its genesis, the rule has endured, and there are indeed reasons (partly practical and partly policy-related) that have justified its resilience. In this article I do not wish to dispute her carefully researched historiographical conclusions. Rather, I wish to suggest that circumstances may now have changed. The agent of this change is, not unexpectedly, the Consumer Protection Act 68 of 2008 (the act). The act, simply stated, changes the rule of risk that applies to consumer sale contracts. The way in which the legislation does so will be discussed fully in part 4 of the article below. But what does this legislative shift mean for the common-law rule, bearing in mind that not all contracts are contracts that fall under the act? In the remainder of the article I shall discuss whether the time has come for the common-law rule to take its bow, particularly in the light of the criticism it has always faced, the clear and consistent statements of policy that emerge from the act and comparative modern sources about where risk should fall, and the interests of fairness and uniformity of treatment of the parties to a sale contract.
- Format
- 20 pages, pdf
- Language
- English
- Relation
- Tydskrif vir die Suid-Afrikaanse Reg, Glover, G., 2012. The end of the road for the Roman rule of risk in sale?: artikel. Tydskrif vir die Suid-Afrikaanse Reg, 2012(4), pp.650-669., Tydskrif vir die Suid-Afrikaanse Reg number 4 650 669 2012 1996-2207
- Rights
- Sabinet
- Rights
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Collections
Glover, Graham (Prof)
RU Department of Law
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