oa Fundamina : A Journal of Legal History - The unilateral determination of price in Roman law
The unilateral determination of price has been a controversial issue for an extended period of time. In NBS Boland Bank v One Berg River Drive, the South African Supreme Court of Appeal questioned whether the rule against the unilateral determination of price should still form part of South African law. Specifically, the Court criticised the Roman-Dutch writers' interpretation of the Roman-law texts. The article critically analyses the rule as found in Roman law. The article shows that different interpretations have been given to the original Roman-law texts dealing with the unilateral determination of price. This is caused, in part, by the difficulty in translating these texts from Latin and ascertaining the true meaning of the Roman-law principles from the fragments of texts scattered throughout the Digest. The main arguments for and against the unilateral determination of price based on the Roman-law texts are considered. The article shows that the majority of the arguments seeking to illustrate that such a contract was void in Roman law are open to criticism. Although there are many arguments favouring the view that the contract would be valid but imperfect, not all of these stand up to scrutiny. The most widely held view gives the impression that a discretion to determine the price did not invalidate the contract provided that it was exercised arbitrio boni viri.
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