The transfer of property and risk in commercial sale

Abstract

Every text-book on economics sets out to explain that the function of a market is to enable exchange to take place, and in an economy using money this means the business of buying and selling of goods (and service of some kind); indeed, it is widely appreciated that business or trade activity is to a large extent conducted by means of buying and selling. This economic bi-lateral feature of the contract has existed since earliest times - note the very denomination used under Roman law: emptiovenditio - has continued to persist up to the present time. In the words of Messineo "e' que to il contra tto a i gran lungo piu' importante." Its substratum consists in the circulation of goods; ''pertanto, la compravendita e' il principale veicolo di tale circolazione e del soddisfacimento dei piu' svariati bisogni del sorgetto cornpratore."

Because of its social importance and its frequent use in everyday life, it has been held that it stands at the very top of all commercial contracts, and that, juridically, it occupies a preponderant position. The reason given is that it is the contract which deals with and concerns the objective act of trade 'par excellence', namely, the purchase of a thing for the object of reselling it.