‘PERICULUM VERBUM GENERALE EST’: RISK ALLOCATION IN THE COMMENTARIES OF JACQUES CUJAS

Abstract

Jacques Cujas was a French humanist and one of the most distinguished 16th-century legal experts. This paper analyses the rules governing liability and the meaning of periculum (risk) in his commentaries to Roman law. My study is focused on two examples which offer surprising interpretations of risk. The first case concerns a person who lost an object given for valuation. Here Cujas uses the term periculum in two different meanings. The first is general and covers all types of irresistible events. The second is limited to only one type of event – theft. This distinction is fundamental for the evaluation of the legal consequences arising from the loss of the object. Te inspector would have had to bear the risk of theft (periculum furti), but not other risks, especially not those related to force majeure. The second case I discuss deals with the complexities of risk allocation in the contract of sale. In one of his earlier commentaries, Cujas accepted the Roman legal principle of periculum emptoris – that the risk of the loss of the object sold should be on the buyer. At the same time, in his discussion of particular cases Cujas was flexible in allocating various risks to either of the parties, thus paving the way for his future change of mind on periculum venditoris.