Abstract

THE CASE OF THE GOLDEN TRIPOD AND THE SUBJECT OF SALE IN THE CONTRACT OF ‘EMPTIO SPEI’

Summary
The article analyzes the question of the subject of sale in the contract of emptio spei. The starting point for this study is the source document by Valerius Maximus, describing the case of finding a golden tripod by fishermen, who before sailing out sold the result of their work to Miletus merchants. After the return of the fishermen a dispute arose over whom the find should be awarded to: the sellers or the buyers. The solution to this particular case depends on the accepted position on the subject of sale in the contract called the sale of hope. Literature of the subject presents four views on the matter. According to the first one, the subject of sale in the contract of emptio spei is hope itself. However according to the second view it is the item, the subject that will appear in the future. The third among the presented views proclaims that the subject of sale in the contract of emptio spei is alternatively: hope of obtaining the item or the item itself, depending on the achieved result. The fourth view, in which the consensual contract calls for receiving a subject nonexistent in the moment of sale, should not be qualified as the contract of purchase-sale. The article presents advantages ad disadvantages arising from accepting each of these views. Considering all of the mentioned views on the subject the author regards the second opinion, according to which the contract of emptio spei is always res future as the best. Accepting this opinion allows to evaluate the time of perfectio of sale, allows naming the subject of obligation of the seller as well as the range of liability of the parties arising from the title of failure to perform or improper performance of the contract.