Más allá de la compraventa obligacional romana: la obligación del vendedor de transmitir la propiedad en algunos códigos modernos

Abstract

The article addresses the seller’s obligation to transfer ownership, which goes beyond merely delivering the sold item. This concept appears in several modern legal codes, such as those of France, Argentina, Brazil, and Chile, and is compared with Roman law, where the transfer of ownership required not only a contract but also the traditio (actual delivery). The study examines how this obligation is established in some codes, often coexisting with the warranty against eviction, which protects the buyer against third-party claims that may affect their peaceful possession or enjoyment of the purchased item. The analysis focuses on the contrast between regulating sales as an obligation of result (to transfer ownership) and certain legal systems where the sale only obliges the seller to deliver the item and ensure peaceful possession, without necessarily implying the immediate transfer of ownership. The historical roots of these obligations in European and Latin American legal systems are discussed, along with the influence of Roman law and the Romanistic tradition in shaping these systems. The article also explores the complexity of the seller’s obligation in different systems, highlighting the influence of codifications such as the Napoleonic Code, and the civil codes of Argentina, Brazil, Italy, and Germany. It analyzes how these codes address the seller’s obligations, delivery, and transfer of ownership. Finally, it reflects on the tensions between the breach of this obligation and traditional warranties, such as eviction and hidden defects.