BEBAIO´SEOS DIKE´
BEBAIO´SEOS DIKE´ (
βεβαιώσεως δίκη), an action to compel the vendor to make a
good title, was had recourse to in the following cases:--
1. To compel specific performance of the contract, when the vendor, after
receiving the
ἀρραβὼν or deposit, gets a
more advantageous offer from another quarter, or otherwise repents of his
bargain. (Harpocrat. s. v.
ἐνίοτε καὶ ἀρραβῶνος
μόνου δοθέντος, εἶτα ἀμφισβητήσαντος τοῦ πεπρακότος, ἐλάγχανε
τὴν τῆς βεβαιώσεως δίκην ὁ τὸν ἀρραβῶνα δοὺς τῷ
λαβόντι.）
2. When the right or possession of the purchaser was impugned or disturbed by
a third person. A claimant under these circumstances, unless the present
owner were inclined to fight the battle himself (
αὐτομαχεῖν), was referred to the vendor as the proper
defendant in the cause (
ἀνάγειν ἐπὶ τὸν
πρατῆρα, Poll. 8.34). The latter was then bound to make good the
title (
βεβαιοῦν); or if he refused, the
action in question was the legal remedy against him.
3. If the third party so claiming had established his right, and been by the
decision of the dicasts put in legal possession of the property, whether
movable or otherwise, the ejected purchaser was entitled to sue for
reimbursement (
τὴν τιμὴν καὶ τὴν
ζημίαν, the actual price
plus
compensation for loss and inconvenience) from the vendor by this action
(Pollux, 8.6). The intricate case in the speech of Demosthenes against
Pantaenetus has sometimes been referred to this head, but seems hardly to
belong to it. The provision in Plato's Laws (12.954 A) probably represents
the actual law of Athens: “He who sells for another who sells
unlawfully, or is not able to make good the loss, shall himself be
responsible; the agent and the principal shall be equally
liable.”
It has been conjectured that there was also a
βεβαιώσεως δίκη when the purchaser of confiscated property
(
δημιόπρατα) was disturbed in his
possession by a claimant; the defendant in that case being the Prytanis of
the Poletae who had carried out the decree of sale (
Att.
Process, p. 574). But it was a well-known axiom in Athenian law that
sales by the state gave an indefeasible (or, as we should say, a
parliamentary) title (Demosth.
c. Timocr. p. 717.54, with
Wayte's note; Pollux, 8.99;
Hesych. sub voce
ἐν λευκώμασι). The only evidence to the
contrary is a doubtful reading (
πέπρακε for
πέπραχε) in Demosth.
c.
Pantaens. p. 972.19; and the notion of Meier and
Schömann has not found favour among recent scholars
(Müller, ap. Pauly; Caillemer, ap. D. and S.).
The
βεβαιώσεως δίκη, like most civil
actions, came before the tribunal of the Thesmothetae (K. F. Hermann,
Privatalterth., § 65, n. 15-18).
[
J.S.M] [
W.W]
