a. Complying with specific instructions.
When the owner authorizes the transfer of ownership, the more specific his instructions are, the easier it becomes to determine the scope of his authorization. If the owner gives specific instructions to carry out a business, the noncompliance of them by the non-owner will determine that ownership is not transferred at all. In other words, regarding the transfer of ownership, exceeding the instructions of the owner has the same consequence as not being authorized at all. Numerous decisions reflect this basic idea. Paul demands in general terms in D. 17,1,5,1216
that the limits of the mandate must be respected, applying this idea in D. 17,1,5,3217 to a case in which the mandatarius sells for 90 what he was told to
215 Such is the case regarding D. 39,5,2,6, D. 39,5,10 and D. 39,5,25. An account on the
debate on this point is given by Sansón, La transmisión (1998), p. 97.
216 D. 17,1,5,1 (Paul 32 ed.): “Diligenter igitur fines mandati custodiendi sunt; nam qui
excessit, aliud quid facere videtur”.
217 D. 17,1,5,3 (Paul 32 ed.): “Item si mandavero tibi, ut fundum meum centum venderes,
tuque eum nonaginta vendideris, et petam fundum, non obstabit mihi exceptio, nisi et reliquum mihi, quod deest, mandatu meo, praestes, et indemnem me per omnia conserves”.
SCOPE OF THE POTESTAS ALIENANDI OF THE AUTHORIZED NON-OWNER
Sab.) a similar outcome only on account of the favor dotis, considering that in
principle ownership should not be transferred. The problem behind this case refers to the effects of the death of the owner concerning the potestas alienandi while the condition is pending. In this context, Julian would bring up the text of D. 39,5,2,6 to show that the outcome is different when the death takes place before the delivery without there being a pending suspensive condition. That the author draws a contrast between this text and the case of D. 39,5,2,5 is shown by the introductory word sed211. Accordingly, Julian applies in D. 39,5,2,6 the
general rule found among Roman jurists concerning the death of the owner before the delivery, according to which ownership cannot be transferred unless the heirs grant their agreement to the delivery212.
The analysis of D. 39,5,2,6 reveals that the delivery by a nuntius does not provide a separate legal basis for the transfer of ownership by a non-owner. Just as most cases reviewed so far, ownership will be transferred as long as the delivery takes place voluntate domini. Moreover, it would appear that the text does not specifically discuss the delivery by a nuntius. In fact, the idea of the owner who “dederit alicui, ut ad me perferret” can be understood, in light of the contrast between the cases presented in D. 39,5,2,5 and D. 39,5,2,6, simply as a general reference to the delivery by a non-owner. Whatever the case may be, it is clear that the situation of the nuntius does not stand out as having an independent ground for the transfer of ownership, and therefore in the context of the transfer of ownership it does not have the peculiar status it has in the law of obligations. The fact that the delivery by a nuntius has no special place in the general analysis of the potestas alienandi shows that some of the assumptions of modern scholars on the subject are not based on the sources. It is indeed often claimed that the alienation by a nuntius would have a distinctive character and should be set apart from other cases, but it is not clear what would be so peculiar about it. Some authors stress that the main difference would be that the nuntius would act on behalf of the owner213, something which allegedly would be excluded in
other cases where ownership is transferred by a non-owner. This idea seems to rely on the vague notions regarding the notion of direct representation in Roman law, excluding that the alienation by a non-owner in Rome could present identical features to that of modern law by resorting to the nuntius. Others indicate that the act of the nuntius would consist in merely bringing over an object regarding which the parties had already agreed on the iusta causa
traditionis214. It is at times also assumed that sources where the non-owner is
simply presented as ‘bringing over’ something would indicate that the non-
211 Concerning the differences between D. 39,5,2,5 and D. 39,5,2,6, it is not necessary to
look for a missing non in the latter text which would harmonize both solutions, as claimed by Voci, Modi di acquisto (1952), p. 111.
212 Stagl, Favor dotis (2009), p. 207.
213 See e.g. Sansón, La transmisión (1998), p. 99.
214 Zulueta, Institutes of Gaius (1953) II, p. 75.
owner acts as a mere nuntius215. There is however no evidence in the sources to
support any of these claims, while the general categories used by Roman jurists appear to be sufficient to determine the legal grounds of the alienation in this case: ownership will be transferred because the delivery is performed voluntate
domini, and as soon as the owner’s authorization is lacking the potestas alienandi of
the non-owner will vanish.
The analysis of the different personal relationships which may exist between the owner and the transferor/non-owner shows that, from the perspective of the transfer of ownership, the reference to the voluntas domini covers almost every case in which the owner authorizes someone else to alienate his property. This basic requirement to grant the potestas alienandi to an authorized non-owner is therefore either expressed through this or other equally general terms, or through the reference to the specific personal or obligatory relationship between owner and transferor. The only notable exception on this point is the delivery performed by an alieni iuris acting within his libera administratio peculii, which the sources explicitly set aside regarding the transfer of ownership. In this context, the voluntas domini is approached as a flexible element, which can encompass different situations and which is to a considerable extent open to juristic interpretation, as becomes clear in the equivalence between scientia and voluntas. This overarching and dynamic approach will become even more evident through the study of the scope granted by jurists to the potestas alienandi which stems from the owner’s authorization, which will be dealt with in the following section.
4. Scope of the potestas alienandi of the authorized non-owner
a. Complying with specific instructions.
When the owner authorizes the transfer of ownership, the more specific his instructions are, the easier it becomes to determine the scope of his authorization. If the owner gives specific instructions to carry out a business, the noncompliance of them by the non-owner will determine that ownership is not transferred at all. In other words, regarding the transfer of ownership, exceeding the instructions of the owner has the same consequence as not being authorized at all. Numerous decisions reflect this basic idea. Paul demands in general terms in D. 17,1,5,1216
that the limits of the mandate must be respected, applying this idea in D. 17,1,5,3217 to a case in which the mandatarius sells for 90 what he was told to
215 Such is the case regarding D. 39,5,2,6, D. 39,5,10 and D. 39,5,25. An account on the
debate on this point is given by Sansón, La transmisión (1998), p. 97.
216 D. 17,1,5,1 (Paul 32 ed.): “Diligenter igitur fines mandati custodiendi sunt; nam qui
excessit, aliud quid facere videtur”.
217 D. 17,1,5,3 (Paul 32 ed.): “Item si mandavero tibi, ut fundum meum centum venderes,
tuque eum nonaginta vendideris, et petam fundum, non obstabit mihi exceptio, nisi et reliquum mihi, quod deest, mandatu meo, praestes, et indemnem me per omnia conserves”.
sell for 100. The consequence of this transgression is that ownership will not be transferred and the owner will be able to recover the sold object. The same consequence is prescribed in D. 17,1,5,4218 to the alienation by a slave for a lower
price than that set by his owner. Likewise, Ulpian quotes Celsus in D. 21,3,1,3219
when stating that, if a non-owner sells an object at a lower price than that set by the owner, the object would not be considered as alienated (non videtur alienata), and the owner will recover what belongs to him. There are of course other instructions which may be disregarded by the non-owner apart from the price of the object to be sold. C. 4,35,12220 generally demands that if specific conditions
have been laid down in the contract of mandate and the delivery performed by the mandatarius over a piece of land contravenes the terms of the contract, ownership will not be transferred, unless the owner ratifies the sale. Accordingly, any disobedience by the non-owner of the owner’s instructions may prevent the transfer of ownership, as happens when he acts nomine proprio221 despite being told
to alienate on behalf of the owner, or when the pledge creditor sells the pledge in a way which exceeds the terms of the pactum de distrahendo222. It is worth noting
that in these latter cases the sources explicitly mention the existence of furtum, and therefore the lack of the voluntas domini signals at the same time the impossibility to transfer ownership and the existence of a delict.
It is at this point worth noting that Roman jurists offer a rather strict interpretation of what the voluntas domini implies for the transfer of ownership by
traditio. One could in fact think that the non-owner who exceeds the owner’s
authorization would act validly at least regarding part of the operation, but Roman jurists did not see it that way, and the delivery which implies a breach of the owner’s instruction is regarded to take place invito domino, just as if there was no authorization at all. Only the ius honorarium would correct some of the most unfair consequences which could derive from this situation223, but for the ius civile
there would be no voluntas domini which would allow the transfer of ownership224.
218 D. 17,1,5,4 (Paul 32 ed.): “Servo quoque dominus si praeceperit, certa summa rem
vendere, ille minoris vendiderit, similiter vindicare eam dominus potest, nec ulla exceptione summoveri, nisi indemnitas ei praestetur”.
219 D. 21,3,1,3 (Ulp. 76 ed.): “Celsus ait, si quis rem meam vendidit minoris, quam ei
mandavi, non videtur alienata, et si petam eam, non obstabit mihi haec exceptio; quod verum est”. See on this text Sansón, La transmisión (1998), p. 105-107, 211-213.
220 C. 4,35,12 (Diocletian/Maximianus, 293): “Cum mandati negotii contractum certam
accepisse legem adseveres, eam integram secundum bonam fidem custodiri convenit. Unde si contra mandati tenorem procurator tuus ad te pertinentem fundum vendidit nec venditionem postea ratam habuisti, dominium tibi auferre non potuit”.
221 D. 39,5,25 (Jav. 6 epistolarum).
222 D. 47,2,73; D. 13,7,4 (Ulp. 41 Sab.); D. 13,7,5 (Pomp. 19 Sab.).
223 See Chapter 4, Section 3 below.
224 That this solution is by no means intuitive can be seen in the fact that in a scholion to the
Paraphrase of Theophilus to Inst. 2,1,42, the scholiast indicates that the words κατὰ γνώμην (voluntate) imply that the transferee would only become owner if the authorization
While most texts offer a consistent outlook on the consequences of exceeding the instructions of the owner regarding the transfer of ownership, there are a couple of divergent opinions, the first of which is the following:
D. 18,1,63pr (Jav. 7 ex Cassio): Cum servo dominus rem vendere certae personae iusserit, si alii vendidisset, quam cui iussus erat, venditio non valet. Idem iuris in libera persona est, quum perfici venditio non potuit in eius persona, cui dominus venire eam noluit225.
Javolenus claims in this case that if a non-owner sells to a different person from that indicated by the owner, the sale itself will not be valid (venditio non valet). It would therefore appear that in the opinion of Javolenus the disregard to the owner’s instructions would not only prevent the transfer of ownership, but that the sale itself would not be valid. Such an opinion appears to be completely inconsistent with everything seen so far, particularly from the perspective of the law of obligations, where the owner’s intent is normally considered of no significance regarding the sale concluded between the non-owner and the purchaser. Moreover, the fact that the sold object would be rendered a res furtiva through the disregard of the owner’s instructions cannot by itself make the sale invalid, unless both parties knew about it, as shown in D. 18,1,34,3 (Paul 33 ed.). If the sale was indeed invalid in the case under discussion, a very odd consequence would follow, namely that the parties to the sale would not be mutually bound at all and the purchaser would have no ground to sue the seller in case of eviction. The awkwardness of this solution has motivated all kinds of explanations, including the usual accusations of interpolation. Sansón considers that the invalidity of the sale should be explained within the peculiar features of the traditio iussu domini226, an idea which is however not shared in the present
book227. Elsewhere, Sansón considers that Javolenus would declare “venditio non
valet” in order to stress the fact that the sale will not serve as a iusta causa usucapionis due to the fact that the disregard of the owner’s instructions would
render the object sold a res furtiva228. More plausible seems the explanation of
Burdese, who considers that Javolenus is plainly saying that ownership will not be transferred, without really questioning the validity of the sale itself, as would
of the previous owner completely covered the acts concluded by the non-owner, quoting in this regard D. 17,1,5,3. The scholion is edited by Ferrini, Scolii Gr. Par. 1364 (1929 [1886]), p. 176, and commented by Nebrera, Ἡ τραδιτίων (1989), p. 96-108.
225 D. 18,1,63pr: “Suppose a master to direct his slave to sell something to a particular person;
if he sells to someone other than that person, the sale is null; the same would apply if the master asked a freeman to sell it; a sale cannot be brought to completion, if made to someone to whom the principal has no intention to sell” (transl. Watson, modified).
226 Sansón, La transmisión (1998), p. 220.
227 See on this problem Chapter 2, Section 5 below.
SCOPE OF THE POTESTAS ALIENANDI OF THE AUTHORIZED NON-OWNER sell for 100. The consequence of this transgression is that ownership will not be
transferred and the owner will be able to recover the sold object. The same consequence is prescribed in D. 17,1,5,4218 to the alienation by a slave for a lower
price than that set by his owner. Likewise, Ulpian quotes Celsus in D. 21,3,1,3219
when stating that, if a non-owner sells an object at a lower price than that set by the owner, the object would not be considered as alienated (non videtur alienata), and the owner will recover what belongs to him. There are of course other instructions which may be disregarded by the non-owner apart from the price of the object to be sold. C. 4,35,12220 generally demands that if specific conditions
have been laid down in the contract of mandate and the delivery performed by the mandatarius over a piece of land contravenes the terms of the contract, ownership will not be transferred, unless the owner ratifies the sale. Accordingly, any disobedience by the non-owner of the owner’s instructions may prevent the transfer of ownership, as happens when he acts nomine proprio221 despite being told
to alienate on behalf of the owner, or when the pledge creditor sells the pledge in a way which exceeds the terms of the pactum de distrahendo222. It is worth noting
that in these latter cases the sources explicitly mention the existence of furtum, and therefore the lack of the voluntas domini signals at the same time the impossibility to transfer ownership and the existence of a delict.
It is at this point worth noting that Roman jurists offer a rather strict interpretation of what the voluntas domini implies for the transfer of ownership by
traditio. One could in fact think that the non-owner who exceeds the owner’s
authorization would act validly at least regarding part of the operation, but Roman jurists did not see it that way, and the delivery which implies a breach of the owner’s instruction is regarded to take place invito domino, just as if there was no authorization at all. Only the ius honorarium would correct some of the most unfair consequences which could derive from this situation223, but for the ius civile
there would be no voluntas domini which would allow the transfer of ownership224.
218 D. 17,1,5,4 (Paul 32 ed.): “Servo quoque dominus si praeceperit, certa summa rem
vendere, ille minoris vendiderit, similiter vindicare eam dominus potest, nec ulla exceptione summoveri, nisi indemnitas ei praestetur”.
219 D. 21,3,1,3 (Ulp. 76 ed.): “Celsus ait, si quis rem meam vendidit minoris, quam ei
mandavi, non videtur alienata, et si petam eam, non obstabit mihi haec exceptio; quod verum est”. See on this text Sansón, La transmisión (1998), p. 105-107, 211-213.
220 C. 4,35,12 (Diocletian/Maximianus, 293): “Cum mandati negotii contractum certam
accepisse legem adseveres, eam integram secundum bonam fidem custodiri convenit. Unde si contra mandati tenorem procurator tuus ad te pertinentem fundum vendidit nec venditionem postea ratam habuisti, dominium tibi auferre non potuit”.
221 D. 39,5,25 (Jav. 6 epistolarum).
222 D. 47,2,73; D. 13,7,4 (Ulp. 41 Sab.); D. 13,7,5 (Pomp. 19 Sab.).
223 See Chapter 4, Section 3 below.
224 That this solution is by no means intuitive can be seen in the fact that in a scholion to the
Paraphrase of Theophilus to Inst. 2,1,42, the scholiast indicates that the words κατὰ γνώμην (voluntate) imply that the transferee would only become owner if the authorization
While most texts offer a consistent outlook on the consequences of exceeding the instructions of the owner regarding the transfer of ownership, there are a couple of divergent opinions, the first of which is the following:
D. 18,1,63pr (Jav. 7 ex Cassio): Cum servo dominus rem vendere certae personae iusserit, si alii vendidisset, quam cui iussus erat, venditio non valet. Idem iuris in libera persona est, quum perfici venditio non potuit in eius persona, cui dominus venire eam noluit225.
Javolenus claims in this case that if a non-owner sells to a different person from that indicated by the owner, the sale itself will not be valid (venditio non valet). It would therefore appear that in the opinion of Javolenus the disregard to the owner’s instructions would not only prevent the transfer of ownership, but that the sale itself would not be valid. Such an opinion appears to be completely inconsistent with everything seen so far, particularly from the perspective of the law of obligations, where the owner’s intent is normally considered of no significance regarding the sale concluded between the non-owner and the purchaser. Moreover, the fact that the sold object would be rendered a res furtiva through the disregard of the owner’s instructions cannot by itself make the sale invalid, unless both parties knew about it, as shown in D. 18,1,34,3 (Paul 33 ed.). If the sale was indeed invalid in the case under discussion, a very odd consequence would follow, namely that the parties to the sale would not be mutually bound at all and the purchaser would have no ground to sue the seller in case of eviction. The awkwardness of this solution has motivated all kinds of explanations, including the usual accusations of interpolation. Sansón considers that the invalidity of the sale should be explained within the peculiar features of the traditio iussu domini226, an idea which is however not shared in the present
book227. Elsewhere, Sansón considers that Javolenus would declare “venditio non
valet” in order to stress the fact that the sale will not serve as a iusta causa