oa Fundamina : A Journal of Legal History - The unilateral determination of price in Roman-Dutch law
In a previous article, the author discussed the rule that prohibits the unilateral determination of price by one of the parties to a contract of sale in Roman law. The author came to the conclusion that the rule is susceptible to many interpretations and that as expounded in Roman law it is controversial. In this article, the author investigates how the Roman-Dutch writers interpreted the Roman-law sources. Although it is clear that the majority of the Roman-Dutch writers regarded a contract as void when it conferred on one of the parties a discretion to determine the price, their views are based on a conservative interpretation of the Roman-law texts and a misdirected appeal to the rules dealing with pure potestative conditions. Two writers criticised these views and argued that such a contract would be valid since the discretion would have to be exercised arbitrio boni viri. This view is also supported by other jurists and modern researchers who have considered the meaning of the Roman-law texts. Finally, the author discusses why such an investigation is of value for the future of South-African law.
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