Alle origini delle problematiche sul formalismo convenzionale: una nuova riflessione intorno a C. 4.21.17
The research was prompted by the reading of a work dating back to the late nineteenth century about the controversial issue of conventional forms. This brought to the interest in the historical origin of the problem regarding the covenant about the form of legal transactions, identified almost unanimously as one of the most controversial and disputed laws of the Corpus iuris civilis: C. 4.21.17. However, this constitution has been considered by the scholars of Roman law as primarily (or exclusively) related to the sale contract, mostly identified in a transferring contract , very similar to the Greek contract, and opposite to classical Roman law one (consensual and merely mandatory ). Therefore, it became necessary to frame law 17 within the developments of the sale contract during the late Empire age, before making the exegesis . Throughout the course of the investigation on the late Empire law, no sign of a conscious comprehensive design, to replace the model of consensus and mandatory purchase with a new model of a real trading or real effects, was found. This draws attention on how the emperors were induced to legislate by the need to find solutions to concrete problems that were mostly related to public interests, rather than by the need to redesign the structure of private law with wide-ranging reforms. The lack of consistency of the legislative measures and their occasional, confused and imprecise nature, allow us to consider that citizens might have made use of the old model, in the presence of the requirements that had already led to the emergence of the consensual and mandatory purchase during the classical age. This is confirmed by the exegesis of the Constitution 17, held in the last chapter where, with elements of originality and innovation, it was decided to consider differently the attempt by the Imperial Chancellery. Not as a regulation of the translation effects of the sale (as held by the ruling doctrine) but as a solution to the problem that must have been more urgent with the spreading of writing: the determination of the moment and the modalities of the conclusion of contracts in scriptis, with particular reference to consensual contracts.
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