Part IV

The concept of tradition can be viewed from two perspectives: through the lens of modern authors and through the lens of Justinian’s legislation. Modern authors generally consider today that tradition requires the fulfillment of two conditions: the physical delivery of the item and just cause. In their view, just cause constitutes the legal act that precedes and explains the physical transfer. In Justinian’s legislation, just cause represents the intention of the tradens to transfer the thing and the intention of the accipiens to acquire it, even if no legal act exists.

Roman practice, however, differs from the modern conception of Roman law. If we analyze real contracts—most of which are defined as agreements grounded in tradition—we observe that, according to modern authors, tradition now has only the meaning of the physical delivery of the thing, since the formation of real contracts already requires both the agreement of the parties and physical delivery. Thus, from a modern perspective, real contracts cannot constitute the just cause for tradition. However, if the concept of tradition is used in the sense given by Justinian’s legislation—that is, the physical transfer of the thing accompanied by the intention of the transferor to transfer and that of the transferee to acquire—then it could be reconciled with the nature of real contracts.

Consensual contracts may constitute just cause for delivery, since they are formed by mutual consent alone, and the actual transfer of property occurs in the performance of such contracts. However, in order to use the concept of just cause in a uniform manner, it should be defined in accordance with Justinian’s legislation.