Part IV

Emil MOLCUŢ, Ph.D. in Law, Professor, Some considerations upon tradition
The concept of traditio can be viewed throughout two perspectives, through modern authors and through Justinian`s legislation. Modern authors mainly consider today that the concept of traditio requests two conditions: the mere delivery and justa causa. In this meaning, justa causa is the legal act that precedes and explains the sense of the delivery. But, nevertheless, in Justinian`s legislation, justa causa means the intention of tradens to transfer something and the intention of accipiens to receive, even if there is no legal act.

The juridical practice of the Romans is different from the conception of the modern jurisprudence. If we pay attention to real contracts, defined as conventions based on tradition, we observe that here tradition means only mere delivery, because real contracts are formed by both intent of parties and mere delivery. So that real contracts can not be justa causa for tradition, in modern sense. But if the concept of tradition is used with the meaning given by the legislation of Emperor Justinian, that is delivery and intent, then it can be accorded with real contracts also.

Consensual contracts can be justa causa for tradition, because they are formed solo consensu, and delivery is their execution. But for a unique using of the concept, tradition should be defined as it is in Justinian`s legislation.

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