Legal Definitions - lex commissoria

The term lex commissoria refers to a specific type of clause found in contracts under Roman law. Essentially, it was a provision that allowed one party to an agreement to take certain actions, such as canceling the contract or taking full ownership of property, if the other party failed to make a required payment by an agreed-upon deadline.

Historically, the lex commissoria appeared in two primary contexts:

• In contracts of sale: It granted the seller the right to cancel the sale if the buyer did not pay the purchase price by the stipulated time. This meant the seller could reclaim the item sold and treat the contract as if it never happened.
• In pledge agreements: It allowed a creditor and debtor to agree that if the debtor failed to repay a debt on time, the creditor would automatically gain full and absolute ownership of the property that had been pledged as collateral for the loan.

Here are some examples illustrating the concept of lex commissoria:

• Example 1 (Contract of Sale): Imagine a collector in ancient Rome purchasing a rare, antique vase from an artisan. Their contract specifies that the collector must pay the full price within 30 days. The contract includes a lex commissoria clause stating that if payment is not received by the deadline, the artisan has the option to declare the sale void. If the collector fails to pay on time, the artisan can then choose to cancel the sale, keep the vase, and potentially sell it to another interested buyer.

  Explanation: This scenario demonstrates the lex commissoria in a sales context, where the seller (the artisan) can rescind the contract and reclaim the sold item (the vase) due to the buyer's (the collector's) failure to make timely payment.

• Example 2 (Pledge Agreement): A Roman merchant needs a short-term loan to fund a trading voyage. To secure the loan, the merchant pledges a valuable piece of land as collateral to a moneylender. Their loan agreement contains a lex commissoria clause. This clause stipulates that if the merchant does not repay the loan by the agreed date, the moneylender will automatically become the absolute owner of the pledged land, without needing to go through further legal proceedings to seize it.

  Explanation: This example illustrates the lex commissoria within a pledge agreement, where the creditor (the moneylender) gains full ownership of the collateral (the land) because the debtor (the merchant) failed to repay the debt by the specified deadline.