Sale as Obligation in the Light of the History and Phylosophy of Civil Law
There is a deep distinction between cash sale, i.e. exchange of goods for ready money without formation of obligation, and obligational or contractual sale which consists in rights and duties aimed at performance of a contract. Like a primitive non-monetary exchange a cash sale functions as two reciprocal donations. Any relationship of this kind falls into an established routine without being tested for reasonableness or correctness, each party expresses its own arbitrariness hence serves only as a means for the other. A transition from cash sale to obligational sale is a transition from duty to freedom as a basis of the relationship. Non-monetary exchange of goods for goods does not imply comparison of value of things but cash sale as exchange of goods for money equalizes the thing sold with the purchase price hence equalizes the seller and the purchaser. Obligational sale realizes this equality as equality in freedom by way of determining contractual rights and duties. Freedom has a form of rights and duties: a contract of sale created by Roman jurisprudence for the first time subordinated relationships between private persons to idea of freedom. Development of obligational sale generally corresponds to development of social freedom. The third part of the article published in this issue describes a gradual transition in Russian law to obligational sale during the period from XVIII century to the beginning of XX century. Obligational sale establishes itself first in the sphere of turnover of movables only in XIX century not without influence of West European legal regulations. A forward sale in its capacity of either an earnest agreement or a preliminary contract partially made up for want of contract of sale of immovables. Draft Civil Code of 1905 provided both for consensual and for real contract of sale for conclusion of which a simple agreement does not suffice but delivery of property is required. A real construction of sale continued the tradition of cash sale in domestic law.