The Dual Origin of the Duty to Disclose in Roman Law

24 Pages Posted: 21 Dec 2013 Last revised: 17 Jul 2015

See all articles by Barbara Abatino

Barbara Abatino

University of Amsterdam - Amsterdam Center for Law & Economics (ACLE)

Giuseppe Dari‐Mattiacci

Columbia University - Law School

Date Written: December 20, 2013

Abstract

The Roman law remedies for failure to disclose in sales contracts where developed by two different institutions: the aediles, with jurisdiction on market transactions effected through auctions, and the praetor, with general jurisdiction including private transactions. The aedilitian remedies — the actiones redhibitoria and quanti minoris — allowed for rapid transactions and inexpensive litigation but generated some allocative losses ex post, as they did not enable the parties to exchange information about idiosyncratic characteristics of the goods for sale. In contrast, the remedy developed by the praetor — the actio ex empto — implied lengthier transactions and more expensive litigation but eliminated the ex post allocative loss, as it fully protected the buyers’ idiosyncratic interests. Our analysis reveals that these Roman law remedies maximized the value of the underlying contracts and sheds new light on how differences in the lawmaking institutions affect the law produced by them.

Keywords: restitution, rescission, contract damages, breach, duty of disclosure, actio quanti minoris, actio redhibitoria, actio empti ad redhibendum, on and off contract remedies

JEL Classification: K20, L22, L23, N83

Suggested Citation

Abatino, Barbara and Dari-Mattiacci, Giuseppe, The Dual Origin of the Duty to Disclose in Roman Law (December 20, 2013). Amsterdam Law School Research Paper No. 2013-76; Amsterdam Center for Law & Economics Working Paper No. 2013-14. Available at SSRN: https://ssrn.com/abstract=2370282 or http://dx.doi.org/10.2139/ssrn.2370282

Barbara Abatino (Contact Author)

University of Amsterdam - Amsterdam Center for Law & Economics (ACLE) ( email )

Roetersstraat 11
Amsterdam, 1018 WB
Netherlands

Giuseppe Dari-Mattiacci

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.law.columbia.edu/faculty/giuseppe-dari-mattiacci

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