Paul. 32 <33> ad ed. D.19.4.1.1: permuta ed evizione in un noto testo paolino

Abstract

The present work deals with D.19.4.1.1, text in which Paul seems to grant an actio in factum pretoria (Gai 4.66) in favour of the contractor evicted within a relationship of barter, with a solution that not generally seemed consistent with the decision taken elsewhere by the same jurist (Paul. D. 19.5.5.1) to allow a civil action for the hypothesis of non-execution. Many have therefore assumed that Paul was referring someone else's opinion (maybe by Salvio Giuliano) from him not shared, with a proposal though hardly sustainable. Part of the doctrine has so explained the different solution of D.19.4.1.1 with the hypothesis of a failure to improve the contractual situation due to the invalidity of the first datio. Also this conjecture introduces however not a few problematic profiles and it does not appear to be consistent with the development of the narrative plant of the whole fragment (D.19.4.1pr.-4). The author has so suggested to interpret the expression actio in factum here used by Paul in the sense of actio in factum civilis, considering however uncertain the proposal advanced by others to integrate the text reading: in factum dandam actionem < praescriptis verbis> respondetur.