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CORNELL UNIVERSITY LIBRARY 
 
 924 072 487 766 
 
Cornell University 
 Library 
 
 The original of tinis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924072487766 
 
THE CONTEACT OF SALE 
 
 CIYIL LAW 
 
 MOYLB 
 
HENRY FROWDE 
 
 Oxford University Press Warehouse 
 Amen Corner, E.G. 
 
 1X2 Fourth Avenue 
 
Cfarett^ott (Preee ^etriee 
 
 THE CONTRACT OF SALE 
 
 IN THE 
 
 CIVIL LAW 
 
 WITH 
 
 REFERENCES TO TEE LAWS OF ENGLAND 
 SCOTLAND AND FRANCE 
 
 BY 
 
 J. B. MOYLE, D.C.L. 
 
 or Lincoln's inn, babmstee-at-law 
 
 AND FELLOW AND TUTOE OF NEW COLLEGE, OXFORD 
 
 AT THE CLARENDON PEESS 
 1892 
 
O;l:for^ 
 
 PRINTED AT THE CLARENDON PRESS 
 
 BY HORACE HART, PRINTER TO THE UNIVERSITY 
 
PREFACE 
 
 This little book, in a sense, is an experiment. So far as 
 any attempt has hitherto been made to provide English 
 readers with a full knowledge of the Roman law relating to 
 some small and compact subject, it has taken the form of 
 commentary upon the text of some Title in the Digest. Mr. 
 Roby's work on Usufruct^ and Dr. Grueber'a on the lex 
 Aquilia, are the best-known examples of this method of 
 treatment, though in his ' systematic exposition ' the latter 
 has thi'own his preceding commentary into a form nearly 
 approaching that which I have here adopted. To the 
 generality of English lawyers, however, such an exposition 
 of a foreign system, interesting and instructive though it 
 may be, is distasteful in its method, nor does it lend itself 
 to comparison with English principles, or enable a reader to 
 find with ease the passages which bear upon the case which 
 he is considering, or on which he has to advise. 
 
 The law of Sale, as laid down in the Corpus luris, appears 
 admirably suited for a different mode of treatment. It 
 is expounded with extraordinary fullness, being the subject 
 of some twenty Titles in the Code and Digest: it ad- 
 mits of being easily treated in continuous and connected 
 form, with perhaps less of technicality than would be 
 presented by any other branch of law : and finally its 
 interest to an English lawyer is probably greater than that 
 of any other similar topic, if only for the reason given by 
 
VI PEEPACE. 
 
 His Honour Judge Chalmers, that ' there is hardly a judg- 
 ment of importance on the law of Sale in which reference is 
 not made to it.' At the same time, for the convenience of 
 those who from choice or necessity may desire to study the 
 original, I have printed at the end of the book the two 
 Titles in the Digest (xviii. i and xix. i) which bear most 
 directly on the subject, and which are usually prescribed, in 
 connection with it, in examinations, and I have prepared a 
 kind of Index which shows the references in the body of the 
 work to most of the other Titles in the Corpus luris which 
 relate to this contract. 
 
 No attempt has been made to trace the historical evolution 
 of the law of Sale. What was its actual origin, as a con- 
 sensual contractj in theEoman system is a question of very 
 great interest, which has been investigated by some of the 
 most learned and penetrating of the historical jurists on the 
 Continent, and which has engaged others, both there and in 
 England, in speculations which have hitherto led to no very 
 satisfactory results. Until some sure ground has been 
 reached it would be foolish to discuss such a matter in a 
 book which it is intended and hoped will be of real use to 
 lawyers in this country, and accordingly I have in the main 
 contented myself with setting forth the principles of the 
 contract, as they are to be found in the Code, Digest and 
 Institutes, although I have not refrained from historical 
 disquisition where the actual origin of a rule is known 
 beyond all question. 
 
 It would be improper for me to close these few words of 
 preface without acknowledging the great obligation which 
 I am under, in relation to this book, to His Honour Judge 
 Chalmers. It will be apparent to every reader how easy 
 the task of comparing the Civil Law with the English has 
 been made by my possession of his invaluable work on the 
 Sale of Goods. But I owe him still more for the courtesy 
 
PREFACE. Vll 
 
 and readiness with which he has constantly spared his 
 scant moments of leisure to advise me upon points of con- 
 tact and contrast between the English and the Roman 
 law, and to suggest topics upon which a comparison, at first 
 sight by no means obvious, becomes on examination of 
 prime importance in illustrating the fundamental principles 
 of the two systems. It is hardly too much to say that 
 nearly everything which can give the book any value in 
 the eye of an English lawyer is due to him. 
 
 J. B. M. 
 
 Oxford, April, 1892. 
 
CONTENTS 
 
 PAaK 
 
 1-8 
 
 CHAPTEE I. 
 
 Nature or Sale, and its relation to other cognate 
 Contracts ....... 
 
 Definition of sale (i). The contract is consensual (i) and 
 synallagmatic (2). Fundamental points of difference between 
 the English and the Civil Law (3). Relation of Sale to Ex- 
 change (3) and to Hiring and Letting (6). 
 
 CHAPTEE II. 
 Who can buy and sell . . . . . . 9-15 
 
 Persons entirely unable to contract (9). Special restrictions : 
 tutors and curators (9) : public officials (10). Effect of contract 
 of sale entered into by pupillus without auctoritas (11) : is he 
 bound? (13). 
 
 CHAPTEE III. 
 
 What can and cannot be bought and sold . 16-27 
 
 The general principle (16). Sale of servitudes (17) : of res 
 alienae (17) : of res extra commercium (19) : of freemen (30) : 
 of res furtivae (20) : of things whose alienation is forbidden by 
 law (20) : of things which have ceased to exist (21). Purchase 
 of res sua (22). Sale of free services (24). Resti-ictions on right 
 of sale imposed by testament (24) or by contract (35). Note A : 
 sale of res alienae in French and English law (26). 
 
 CHAPTEE IV. 
 Certain special sub.tects op sale .... 28-38 
 
 Emptio generis (28). Sale of article to be made or procured by 
 the vendor : is it really sale ? (29). Emptio spei (30). Purchase 
 
X CONTENTS. 
 
 PAGE 
 
 of an inheritance (32). Purchase of a debt, or of a right of 
 action, whether in rem or in personam (36). Kules relating to 
 assignment (37)- 
 
 CHAPTEE V. 
 
 How THE CONTEACT IS CONCLUDED .... 39~49 
 
 Necessity of complete agreement between the parties (39). No 
 forms required for the validity of the contract (40). Justinian's 
 enactment in Inst. iii. 23. pr. as to writing : it relates to negotia- 
 tions (41), not to a sale definitely agreed upon (43). Mode of 
 expressing agreement (44). Contracts made by correspondence 
 (45) and through agents (48). Arra or earnest (48). 
 
 CHAPTEE VI. 
 
 Mistake. Fraud. Duress ..... 50-65 
 
 General principles (50). Mistake as to the nature of the trans- 
 action (52) : as to the subject-matter of the contract : its 
 identity (52) : its existence (53) : its quantity (54) : its material, 
 qualities or properties (55). Mistake as to the price (56). 
 Mistake of motive (56). Mistake as to the identity of the other 
 party (57). Dolus or fraud (57). What dolus includes : wilful 
 mis-statements (58) : active concealment (59) : reckless igno- 
 rance as to truth of statements (59) : innocent non-disclosure 
 (60). Effect of these on the validity of the contract (61). 
 Metus or duress, and its effects (63). Metus has a wider opera- 
 tion than dolus (64). 
 
 CHAPTEE VII. 
 
 EULES AS TO THE PRICE ...... 66-75 
 
 The price must be fiied in money (66). Consideration con- 
 sisting partly in money, partly in some other thing (67). The 
 price must be fixed (68) : no doctrine of a ' reasonable price ' 
 (69). Agreement that the price shall be fixed by an arbitrator 
 or expert (70). Variation of the price (72). Fixing of the price 
 where a number of things are bought together (72). The price 
 must be intended as a bona fide equivalent for the goods (73). 
 Fairness or adequacy of the price (74). 
 
 CHAPTEE VIII. 
 
 The effects of the Contract, (a) Periculum aitd Com- 
 
 MODUM REI ....... 76-95 
 
 General rule as to the passing of the risk to the purchaser (76). 
 Meaning of ' perioulum rei ' : it passes when the emptio is ' per- 
 
CONTENTS. XI 
 
 fecta' {^^)■ Grounds on which it may be 'imperfecta': (i) 
 Agreement not yet completely binding, because the price is not 
 fixed, or there is a suspensive condition (78), or the purchaser 
 has reserved the right of examining the goods (79) : various 
 cases of this (80) : a suspensive condition (80) ; a resolutive con- 
 dition proper (82) : a pactum displicentiae (82). (ii) The goods not 
 yet specifically determined (83) : meaning of ' weighing, count- 
 ing, or measuring' the goods (86) : vendor's negligence in such 
 cases (87). Rules as to the risk when the vendor has the right 
 of selection, in sales in the alternative (88), and in sales of res 
 alienae (89). Vendor's obligation to assign rights of action 
 where the goods are at the purchaser's risk (89). Exceptions 
 to tlio rule as to risk, and theories as to its rationale (90). 
 Meaning of ' commodum rei' : the purchaser is entitled to 
 fruits and accessions from the moment the contract is con- 
 cluded (92). 
 
 CHAPTEE IX. 
 
 The effects of the Contract. (6) The Vendor's duties 96-141 
 
 Performance by each party is a concurrent condition of per- 
 formance by the other (96). Duty of the vendor to deliver (98). 
 What constitutes delivery (99). Time and place of performance 
 l)y the vendor (100). The possession delivered must be 'vacua' 
 (loi). Vendor under no obligation to give a title as owner (102) : 
 strictness of this rule, and theories as to its rationale (103). 
 Effect of discovery that land is subject' to servitudes or charges 
 undisclosed by the vendor (105). Vendor's obligation to take 
 due care of the goods pending delivery (106). Delay in delivery 
 (109). No property passes by the contract (no). Vendor's im- 
 plied covenant of quiet enjoyment (no). History of the ob- 
 ligation to compensate the purchaser on eviction (i 1 1). Meaning 
 of 'eviction' (112). Modes in which it may take place (113). 
 The flaw in the purchaser's title must have existed when the 
 contract was made (115). Eviction must not be attributable to 
 the purchaser's own fault (ii6). Eviction by a third person 
 proving rights less than ownership (117). The purchaser must 
 notify the vendor that the title is called in question (117) : ex- 
 ceptions to this rule (120). Variation by contract of the vendor's 
 liability for eviction : stipulatio duplae (122) : pactum de evic- 
 tione non praestanda (123). Measure of the vendor's liability 
 (124). Purchaser's right to retain the pm-chase money when 
 the title is disputed (128). Partial eviction (129). Summary 
 of cases in which there is no right to compensation on eviction 
 (131). Subsidiary remedies of the purchaser (133). Note A : 
 Scotch, English, and French law as to the effect of the contract 
 in passing the property (135). Note B : Scotch and English law 
 as to implied warranty of title on a sale of goods (139). 
 
XU CONTENTS. 
 
 CHAPTEE X. 
 
 PAGE 
 
 The effects of the Contract, (c) The Pukchaser's 
 
 DUTIES .....••• 142-155 
 
 Payment of the purchase-money : the purchaser must make it 
 the property of the vendor (142). By whom and to whom pay- 
 ment may be made (143). Passing of property in the goods, 
 even when delivered, usually conditional on payment (144). 
 Interest due on impaid purchase-money (146). Purchaser's 
 duty to accept delivery, and to reimburse the vendor his 
 charges (147)- Consequences of the purchaser's mora (148). 
 The Civil Law on the subject of vendor's lien (149) and stop- 
 page in transitu (151). 
 
 CHAPTEE XI. 
 
 CONDITIONAI SAIES ....... 156-177 
 
 Conditions in general distinguished into suspensive and resolu- 
 tive (156). Conditions distinguished from terms in the contract 
 (157). Conditions afSrmative and negative (159). Conditions 
 attached for the benefit of the vendor : (i) Addictio in diem : 
 what is a 'better offer'? (160). Effects of addictio when the 
 condition is suspensive (163) and resolutive (164). When is 
 the condition satisfied? (165). Sales by auction (167). (ii) Lex 
 commissoria (169) : the condition here always resolutive : when 
 it is satisfied (170). Effect of a sale subject to a lex commissoria 
 (171). Conditions attached for the benefit of the purchaser 
 (173) : (i) Emptio ad gustum (174) : (ii) pactum displicentiae 
 (175). Common terms in sales : reservation by vendor of right 
 of preemption (176) : pactum de retrovendendo (176) and de 
 retroemeudo (177). 
 
 CHAPTEE XII. 
 
 Modes of discharge ...... 178-220 
 
 Contraria voluntas, or mutual waiver before performance by 
 either party (179). Partial discharge by subsequent variation 
 of terms (180). Eescission by the vendor for inadequacy of 
 price (laesio euormis, 180) : difficulties of the texts on the subject 
 (182). When the price is deemed to be inadequate (183). The 
 courses open to the vendor (183). Effects of successful action 
 for rescission (184). Cases in which the vendor may not rescind 
 (186) : other doubtful cases (187). The purchaser's right of 
 rescission on account of undisclosed defects (188). Historical 
 sketch of the vendor's liability for non-disclosure : the old Civil 
 Law (189) : the practice of exacting a covenant as to quality (192) : 
 
CONTENTS. XUl 
 
 PAGE 
 
 the iEdilician Edict (192). Extension of its rules to all sales 
 by juristic construction (194). What defects render the contract 
 liable to rescission ? (195). Distinction between slaves (196) and 
 animals (197). The defect must exist at the date of the con- 
 tract, and be unknown to the purchaser (197). Purchase by 
 agents with knowledge (198). Defect in accessions : in one of 
 several things purchased together (199) : in part of ain uni- 
 versitas (200). Vendor's duty to disclose defects of these kinds 
 (200). The purchaser's remedies : (i) by exceptio, (2) by actio 
 redhibitoria (201). Effects of this action : what must be done 
 by the purchaser (202) and by the vendor (203). Covenants 
 sometimes demandable by either party (206). Points in which 
 the parties are differently treated under the actio redhibitoria 
 (207). The period of limitation (209). (3) By actio quanti 
 minoris or aestimatoria (210) : its period of limitation and 
 effects (211). Reaction of these ^dilieian remedies on those of 
 the Civil Law (212). Cases in which they are inapplicable (214). 
 Note A : Implied warranty of quality in Scotch and English 
 law (216). 
 
 DIG. XVIII. I. 
 
 De CONTEAHENDA EMPTIONE . . . . . 221 
 
 DIG. XIX. I. 
 De actionibus empti venditi 239 
 
 Eepekences to other Titles in the Digest and Code 261 
 
 Index 266 
 
V 
 
LIST OF PEINCIPAL WOEKS 
 EEFEEEED TO 
 
 Akndts, Lehrbuch der Pandekten, gth ed. 1877. 
 
 Bechmaitn, Der Kauf nach gemeinem Recht, 1876. 
 
 Bell's Principles of the Law of Scotland, 9th ed. 1889. 
 
 Bekjamin, On Sale, 4tli ed. 1888. 
 
 Chalmers, Sale of Goods, 1890. 
 
 Demaste, Cours analytique de Code dm, vol. vii. 
 
 GLtfcK, Ausfuhrliche ErlSuterung der Pandekten, 1867. 
 
 Ihekinq, Geist des romischen Bechts, 4th ed. 1878. 
 
 MoMMSEN, BeitrSge zum Ohligationenrecht, 1853. 
 
 MuiKHEAD, Historical Introduction to the Private Law of Eome, 1886. 
 
 PoTHiEE, Traits du Contrat de Vente, 1772. 
 
 Savigmy, Ohligationenrecht, 1851. 
 
 System des heutigen r'omischen Bechts, 1 840. 
 
 Theitschke, Der Kaitfcontract in tesonderer Beziehung auf den Waaren- 
 handel, and ed. 1866. 
 
 Vakgerow, Lehrbuch der Pandekten, 7th ed. 1876. 
 
 Veeing, Ges(^ichte und Pandekten des riimischen und heutigen gemeinen 
 Privatrechts, sth ed. 1887. 
 
 Wachter, Pandekten, 1880. 
 
 WiHDSOHEiD, Lehrbuch des Pandektenrechts, 4th ed. 1875. 
 
THE CONTEACT OF SALE IN THE 
 CIVIL LAW. 
 
 CHAPTER I. 
 
 NATUEE OF SALE, AND ITS EELATION TO OTHER 
 COGNATE CONTEACTS. 
 
 Definition of Sale. The Contract is consensual and 'synallagmatic,' en- 
 tailing obligations on both parties. Fundamental points of difference 
 between the English and the Civil Law on the subject. Relation of Sale 
 to Exchange : to Hiring and Letting. 
 
 The Contract of Sale (Emptio Venditioj, or more shortly, Definition 
 Sale, is the contract by which two parties promise one 
 another respectively, the one to transfer a thing, the other 
 to pay a determinate price for that thing ^- What precisely 
 is' meant by the words transfer, thing, price, wiU be more 
 fully considered hereafter. 
 
 The contract belongs to the class known to the Roman The con- 
 
 conse 
 sual, 
 
 lawyers as consensuaP. With possibly one slight exception, consen- 
 
 ^ Le Contrat de Vente est un Contrat par lequel I'un des contrac- 
 tans, qui est le vendeur, s'oblige envers I'autre de luifaire avoir lihre- 
 inent a litre de proprietaire une chose, pour le prix d'une certaine 
 somme d'argent que I'autre contraetant, qui est I'acheteur, s'oblige 
 reciproquement de lui payer : Pothier, Contrat de Vente, I. La vente 
 est une convention par laquelle I'un s'oblige a livrer une chose, et 
 I'autre a la payer : Code Civil, Art. 1582. See a similar definition in 
 Bell's Principles of the Law of Scotland, § 85 
 
 2 Code Civil, Art. 1583. 
 
 B 
 
2 NATURE OF SALE. 
 
 it is binding on both parties so soon as they are agreed, 
 definitely and without conditions, upon the thing to be 
 bought and sold, and on the price to be paid. How that 
 agreement is expressed is immaterial. It may be done 
 by word of mouth, by messenger, by correspondence, or by 
 conduct : no form is necessary ^, nor is part performance 
 ever or in any degree an essential condition of the obliga- 
 tion, as was the case with the contracts which the civilians 
 term Real^. 
 and synal- The contract is further synallagmatic : that is to say, it 
 must be for the benefit of both parties, and each must be 
 bound ^- It is possible that the obligation of one or other 
 of them may be ' naturalis ' only, so that he cannot be sued 
 for breach, while he has the right of enforcing it against 
 the other : but if either of them is not bound at aU, then 
 neither is the other *. 
 
 From this it is clear, that promises to sell (the other 
 party not being bound to buy), or promises to buy (the 
 other party not being bound to sell), or promises made 
 between A and B respectively to buy of and sell to one 
 another, if required, though they seem to play a somewhat 
 prominent part in the laws of those European countries 
 which are founded on the Civil Law ^, are not enforceable 
 
 ' Est autem emptio iuris gentium, et ideo consensu peragitur : 
 Dig. i8. I. I. 2. 2 Dig. 44. 7. 52. I. 
 
 ' Ce eontrat est synallagmatique, o'est a dire qu'il contient un 
 engagement reciproque de chacun des oontractans, I'un envers I'autre, 
 aiusi qu'il resulte de la definition que nous en avons donnee. C'est un 
 eontrat commutatif, dans lequel I'intention de chacun des oontractans 
 est de recevoir autant qu'il donne : Pothier, 2. 
 
 * Bona fides non patitur ut, cum emptor alicuius legis beneficio 
 peouniam rei venditae debere desiisset antequam res ei tradatur, ven- 
 ditor tradere compellatur, et re sua careret ; Dig. 19. i. 50. For a 
 very complete examination of certain cases in wMch it is alleged by 
 some w^riters that the contract is unilateral only, or at any rate 
 ' imperfectly bilateral,' see Bechmann, Kauf, §§ 161-186. 
 
 ^ See Code Civil, Art. 1589, 1590; Demante, Cours analytique de 
 CodeCivil, pp. 16-31 : Pothier, 476-495 : Bechmann, Kauf, §§ 190-195. 
 
NATURE OF SALE. 3 
 
 in the Koman system ; they are merely pacta nuda, and 
 cannot be sued upon. 
 
 Two respects in which the Eoman differs from the English Funda- 
 law upon the subject may be mentioned at once. Firstly, points of 
 the law relating to the sale of land is in no way different u'f^g^^'^'' 
 from that relating to the sale of goods ; and secondly, the the Eng- 
 contract itself never transfers property m the thing sold. In the Civil 
 England, as is well known, and as will be more fully shown 
 hereafter, a contract for the sale of specific or ascertained 
 goods usually ipso facto transfers property therein to the 
 buyer : but the Romans distinguish the sale clearly from 
 the alienation '•, and it will be seen that in their law the 
 contract never operates as a conveyance, though it may in 
 some measure alter the legal relation of the purchaser to 
 the thing which he has purchased. 
 
 Even those whose study of the Civil Law has not passed Relation 
 beyond its elements will remember the reference in the Exchange, 
 Institutes of Gaius ^ and of Justinian ^ to a controversy as 
 to whether Exchange was not a species of sale, and was 
 not governed by the rules peculiar to that contract *. The 
 jurist Paulus tells us® that sale in fact originated in and 
 was a species of exchange. There was a time when money 
 had not been introduced, and when the distinction between 
 the price and the thing sold (merx) was unknown. Men 
 gave what they had to spare for something else of which 
 they stood in need. The inconvenience of this led in time 
 to the invention of Money — pieces of metal stamped with 
 their exchange value by the authority of the State, which 
 impression (rather than their actual cost) represented the 
 measure of their usefulness in commercial transactions ^. 
 
 " ' Alienatum ' non proprie dioitur, quod adhuc in dominio vendi- 
 toris manet : ' venditum ' tamen recte dicetur : Dig. 50. 16. 67. 
 
 '■' iii. 141. ' iii- 23. 2. 
 
 * Pothier, 619. ' Dig- 18. i. i. pr. 
 
 ^ Eaque materia forma publica percussa usum dominiumque non 
 tarn ex substantia praebet quam ex quantitate : Dig. loc. cit. So too 
 
 B 2 
 
4 NATUEE OF SALE. 
 
 Thus purchase and sale took rank as an independent 
 contract: merx is one thing, pretium is another, and 
 Vendor is distinct from Purchaser: and although the 
 controversy alluded to between the Sabinians and Pro- 
 culians continued for many generations, it was finally 
 set at rest in A.D. 294 by a rescript of the Emperors 
 Diocletian and Maximian^- By this enactment it was 
 settled that an agreement to exchange one thing for 
 another, instead of for a money price, was not binding 
 on either party until there had been performance on one 
 side accepted by the other: permutatio henceforth defi- 
 nitely belonged to the class of agreements termed by 
 civilians innominate ' real ' contracts ^, enforceable by the 
 party who had performed his side of the bargain, but not 
 till then, by an actio praescriptis verbis ^ In a single case 
 an exception to this rule appears to have been allowed. 
 Gaius* adverts to an opinion of Caelius Sabinus, that if 
 one man has a thing for sale (venalis) and another takes 
 it, giving another thing ' pretii nomine,' the transaction is 
 sale, not exchange : and this doctrine is reproduced in a 
 rescript of the Emperor Gordian^. The question which 
 was at issue was of no small practical importance, for it is 
 
 Papinian says, ' in pecunia [quis) non corpora cogitat sed quantitatem ' : 
 Dig. 46. 3.94. I. 
 
 ' Cod. 4. 64. 7. ^ Dig. 19. 4. I. 3. 
 
 ' Pothier says (621), 'parmi nous la convention d'echange, des 
 avant qu'elle ait refu auoune execution, et aussitot que le consente- 
 ment des parties est intervenu, produit, de part et d'autre, une obliga- 
 tion civile, et elle est un contrat consensuel, de meme que le contrat 
 de vente.' So by the Code -Civil (Art. 1703) exchange is declared a 
 consensual contract, and with certain exceptions (i 704-1 706) is regu- 
 lated by the rules governing sale (1707). 
 
 * iii. 141. 
 
 ^ Si cum patruus tuus venalem possessionem habeat, pater tuus 
 pretii nomine — licet non taxata quantitate— aliam possessionem dedit, 
 idque quod comparavit evictum est, ad exemplum ex empto actionis 
 non immerito id quod tua interest, si in patris iura successisti, conse- 
 qui desideras : Cod. 4. 64. i. 
 
NATUEB OF SALE. 5 
 
 not difficult to imagine one who had negotiated an advan- 
 tageous exchange, of which the other party had repented 
 and refused to accept execution, striving to convince a 
 court that the agreement, being a variety of sale, was con- 
 sensual in principle, and therefore binding on both parties 
 from the moment it was concluded. One at any rate of the 
 fundamental doctrines of sale was extended to exchange, 
 viz. the liability of each party for undisclosed defects in 
 the article which he had exchanged for the other ^. On the 
 other hand, there is a material difference of rule in three 
 particulars. We shall see that a purchaser could not rescind 
 a contract of sale because the vendor had in fact no riffht 
 to sell the article which was the subject-matter of the 
 contract : but it is essential to exchange that each party 
 should vest in the other the property in the article which 
 he conveyed^. Secondly, in sale the purchased property 
 as a rule is at the risk of the purchaser from the instant 
 that the contract is concluded : if it perishes without fault 
 in the vendor, he must pay the purchase money, and if he 
 has paid it already he cannot recover it back : whereas, on 
 an exchange, if A has given B what he promised, and what 
 B was to give perishes without his fault before conveyance 
 to A, the latter can recover back what he has conveyed 
 himself^. Thirdly, in exchange the property passes on 
 delivery, and before counterperformance by the other 
 party * : in sale, as we shall see, it passed only if in addi- 
 tion to delivery the price were paid or credit were given. 
 
 ^ Sed si quis permutaverit, dicendum est utrumque emptoris et ven- 
 ditoris loco haberi et utrumque posse ex hoc edicto experiri : Dig. 21. 
 I. 19. 5 : aliter. The Code Civil, Art. 1706. 
 
 ^ Dig. 19. 4. I. 3 : 12. 4. 16 : Code Civil, Axt. 1704 : PotMer, 621. 
 
 ' Dig. 12. 4. 16. The Contract having become consensual in the 
 French law of Pothier's time, the rule is laid down in the contrary 
 form by him, 625, and it is the same in the modern law : Code Civil, 
 Art. 1707. 
 
 * Cum precibus tuis expresseris placitum inter te et alium permuta- 
 tionis intercessisse eumque fundum a te datum vendidisse, contra 
 
6 NATUBB OF SALE. 
 
 andtoHii- Another contract, between which and sale the Komaa 
 Letting, lawyers were at one time unable to precisely define the 
 limits, is Hire, in two of its three forms, viz. locatio con- 
 ductio rei, and locatio conductio operis faciendi. Hire is 
 consensual, and consequently cannot be distinguished, like 
 exchange, from sale by reference to the moment at which 
 the obligation is generated. Locatio conductio rei is the 
 letting another have, for a pecuniary consideration, the use 
 and fruition of a thing which one has in one's de facto 
 possession. What differentiates it from sale is the letter's 
 intention not to part permanently with his own interest. In 
 most instances of letting, whether of land or of chattels, this 
 is so obvious that no question as to the true nature of the 
 transaction can arise : but there was one case in which there 
 was a long controversy, namely, that of ager vectigalis. If 
 land was let in perpetuity, subject to an annual rent, there 
 were some who inclined to the view that the contract was 
 sale, though Gaius^ says that according to the better 
 opinion it was hire. The Emperor Zeno eventually ruled ^ 
 that it should be governed by special rules of its own, 
 though in principle it was judged to be a case of letting 
 and hiring. The determining consideration was perhaps 
 less the periodical accruing of the money payment than the 
 fact, that the lessor had the right of avoiding the trans- 
 action as regards the future if the rent were in arrear, and 
 in certain other events. We shall see that sometimes a sale 
 was concluded on somewhat similar terms ■'' : but where a 
 sale was thus avoided the avoidance related back to the 
 moment of conclusion, which was not the case with the 
 contract now under consideration. 
 
 Locatio conductio operis faciendi is where one man 
 
 emptorem quid em te nuUam habere actionem perspicis, cum ab eo 
 susceperit dominium, cui te tradidisse titulo permutationis non ne- 
 gasti, Cod. 4. 64. 4. pr. 
 
 ^ iii. 145. ^ Cod. 4. 66. I. 
 
 " See Index, s.v. lex commissoria. 
 
NATUEB 01? SALE. 7 
 
 employs another at a fixed i-emuneration to make him 
 some definite object, such as a carriage or a piece of furni- 
 ture, out of materials belonging to, or to be procured by, 
 the employer. If they belonged to or were to be procured 
 by the employ^, Cassius held that the transaction must be 
 broken up into two distinct contracts ; a purchase of the 
 materials, and a hiring of the skill and labour. No one 
 appears to have thought that it was hire pure and simple, 
 but Gains says ^ that the prevalent opinion was (at least 
 where the materials belonged at the time to the employ^) 
 that it was merely a sale, and this was finally accepted as 
 the law ^. The true criterion is supplied by Javolenus, who 
 says that it is sale if property ' passes 8. This however 
 
 ' iii. 147. 
 
 ' Inst. iii. 24. 4 : Dig. 19. 2. 2. i. Demante, Cours analytique do 
 Code Civil, commenting on Art. 1788, observes that (though the 
 case is treated under the contract of louage), ' loraquc I'entrepreneur 
 fournit la matifere, il y a proprement vente de la chose, qu'il s'oblige 
 k faire, par cons(§quent vente d'une chose future, vente n^cessairement 
 conditionnelle.' 
 
 ' Si ex fUndo meo tegulas tibi faotas ut darem convenit, emptionem 
 puto esse, non oonduotionem : toties onim conductio rei alicuius est, 
 quoties materia in qua aliquid praestatur in eodem statu eiusdem 
 manet : quoties vero et immutatur et alienatur, emptio magis 
 quam looatio intellegi debet; Dig. 18. i. 65. Precisely the same 
 question has arisen in English law, in consequence of $ 17 of 
 the Statute of Frauds, and it was finally settled, in the same way 
 as at Kome, by Lee v. Orijffin (30 L. J. Q. B. 252), which was 
 an action brought by a dentist to recover ;^2i for two sets of 
 artificial teeth made for a deceased lady, of whom the defendant 
 was executor. Crompton J. said, ' When the contract is such that a 
 chattel is ultimately to be delivered by the plaintiff to the defendant, 
 when it has been sent, then the cause of action is goods sold and 
 delivered. ... I do not agree with the proposition, that wherever skill 
 is to be exercised in carrying out the contract, that fact makes it 
 a contract for work and labour, and not for the sale of a chattel : ' 
 and Hill J., ' When the subject matter of the contract is a chattel to 
 be afterwoi'ds delivered, then the cause of action is goods sold and 
 delivered, and the seller cannot sue for work and labour.' See the 
 cases reviewed in Benjamin on Sale, pp. 96-110. He points out 
 that in America the rule in Lee v. Oriffin is not generally approved. 
 
8 NATURE OF SALE. 
 
 requires one qualification. Property may pass in con- 
 sequence of the relation of principal and accessory having 
 been established between something delivered by lessor to 
 lessee, and something originally belonging to the latter : and 
 where the thing delivered under the letting is principal, 
 its owner becomes owner also of the accessory by the 
 title of accession, not by a delivery in performance of a 
 sale. Thus if a land ovfner gives a building lease, the 
 house built under the lease is his, and yet the contract is 
 locatio conductio only^. 
 
 ^ Nee posse ullam looationem esse, ubi corpus ipsum non datur ab 
 eo cui id fieret : aliter atque si aream darem ubi insulam aedificares, 
 quoniam tunc a me substantia pi-oficiscitur : Dig. i8. i. 20. So too if 
 one hires a builder to build one a bouse, it is locatio conductio only : 
 quam insulam aedificandam loco, ut sua impensa conductor omnia 
 faciat, proprietatem quidem eorum ad me transfert, et tamen locatio 
 est : locat enim artifex operam suam, id est faciendi neoessitatem : 
 Dig. 19. 2. 22. 2. So too, in Englisb law, the consideration to be paid 
 to the builder is not for a transfer of chattels, but for work and labour 
 done and materials furnished in adding something to the land : 
 Cotterell v. Apsley, 6 Taunt. 322 : Tripp v. Annitage, 4 M. & W. 687 : 
 Clark V. Bulnter, 1 1 M. & W. 243. 
 
CHAPTEK II. 
 
 WHO CAN BUY AND SELL. 
 
 Persons entirely unable to contract. Special restrictions : tutors and cura- 
 tors : public officials. Effects of Contract of Sale entered into by a pupillus 
 without auctoritas : is he bound or not ? 
 
 The rules governing the capacity to enter a contract of 
 sale are in substance merely part of the general law relat- 
 ing to contractual capacity, and for that reason do not here 
 require any prolonged discussion. Some persons cannot 
 either buy or sell, because they cannot make any sort of 
 contract whatsoever. Others are, for special reasons, dis- 
 abled by law from buying certain kinds of property. Lastly, 
 though certain persons can enter into the contract either as 
 vendors or purchasers, it does not, owing to the status of 
 the contracting party, produce all its usual legal conse- 
 quences. 
 
 Those who cannot contract at all are infants, that is to Persons 
 say, children under the age of seven years ^ ; spendthrifts unabie^to 
 judicially interdicted from the management of their own contract. 
 affairs ^ ; and idiots and lunatics ^, except in lucid intervals *. 
 
 The following special restrictions on the capacity to pur- 
 chase are mentioned in the authorities : — 
 
 (i) Tutors- and Curators may not buy on their own Special 
 account property belonging to those placed under their tjong . 
 charge ^ because, as Ulpian remarks ", one cannot be both ^^^°^^J^'^ 
 
 1 Inst. iii. 19. 10. ^ Dig- 45- 1- 6. 
 
 ' Dig. 50. 17. S. * Cod. 4. 38. 2. 
 
 = Dig. 18. I. 34. 7 : PotMer, 13 : Code Civil, Art. 1596. 
 « Dig. 26. 8. 5. 2. 
 
lO WHO CAN BUY AND SELL. 
 
 vendor and purchaser at the same time : in origin no doubt 
 the prohibition rests on the principle ' tutor in rem suam 
 auctor fieri non potest ' ^. But such a purchase will be good 
 if authorised by a co-guardian ^ or if made at a pubhc 
 auction » or a sale lawfully authorised by a creditor of the 
 ward *, or if ratified by the ward himself on attaining his 
 majority ■"*- These rules were extended generally to agents 
 managing the affairs of other people^ unless the transaction 
 was expressly authorised or subsequently ratified by the 
 principal. 
 Public (2) Public officials may not buy, either personally or 
 
 through an agent, property which they have to sell in the 
 exercise of their pubhc functions : and by an enactment of 
 Severus and Antoninus those who infringe this rule will not 
 only forfeit the property itself, but are mulcted as well in a 
 penalty of four times its value". 
 
 (3) Persons serving in a Eoman province, whether in a 
 civil or in a military capacity, may not purchase land situate 
 therein, except estates belonging to their own family, and 
 sold by the Treasury^. 
 
 The cases in which, owing to the peculiar status of one 
 
 ' Inst. i. 21. 3. 
 
 2 Dig. 26. 8. 5. 2. = Cod. 4. 38. 5. 
 
 ■* Dig. 26. 8. 5. 5. Cette nullite n'est etablie que pour empeoher 
 les fraudes par lesquelles un tuteur, pour son propre interet, pourroit 
 ou aoheter a vil prix, ou se rendre acheteur de choses qu'il n'est pas 
 de I'interet de son mineur de vendre : I'effet de la loi cesse, lorsqu'il 
 il n'y a aucun lieu de soupfonner ces fi-audes. C'est sur ce prineipe 
 qu'il est decide qu'un tuteur est refu a enoherir et a aoheter les biens 
 .saisis par les Creanciers de son mineur : Pothier, 13. 
 
 = Dig. 26. 8. 5. 2. « Dig. 18. I. 34. 7. 
 
 '' Dig. 18. I. 46 : of. Code Civil, Art. 1596, 1597. 
 
 " Dig. 18. I. 62. pr. : of. Cicero in Verr. iv. 5. The Code Civil, Ait. 
 1595, declares void, except in three oases, all purchases and sales 
 entered into between husband and wife. Such sales were not contiury 
 to the civil law, unless entered into at an undervalue merely to evade 
 the rule which prohibited gifts between persons married to one another- 
 Dig. 18. I. 38 : Pothier, 39. 
 
WHO CAN BUY AND SELL. II 
 
 or other of the parties, the contract does not produce its 
 full effects, are those of slaves, persons in paternal power, 
 and pupilli acting without the authority of their guardians. 
 Into the first two it is not proposed to enter, for the capacity 
 of slaves and other persons in power to bind either them- 
 selves or those to whom they are subject is the same in 
 sale as in other contracts generating bilateral obligation, 
 and no special light is thrown on the matter by the authori- 
 ties dealing with the particular contract with which we are 
 concerned ^- As to the precise effect of a contract of sale Effects of 
 entered into by a pupillus without hia guardian's authorisa- of sale 
 tion there is more to say, and that for two reasons : firstly, ^^l^^^^ 
 because there is a considerable amount of textual authority pupillus 
 
 . without 
 
 on the problem m the Titles of the Corpus luris dealing with auctori- 
 our contract, and secondly, because, according to the con- 
 struction which some writers put upon those passages, they 
 present us with an example of a sale binding one of the 
 parties only, and therefore conflicting with the principle. 
 
 ^ In Dig. 1 8. I. 2. pr. it is said, 'inter patrem et filium contrahi 
 emptio non potest, sed de rebus castrensibus potest.' It is well known 
 that in dealing with his castrense peculium a filius fanailias was 
 deemed sui iuris, and upon a contract relating to it entered into 
 between himself and his paterfamilias each party could sue and be 
 sued precisely as if there had been no relation of potestas between 
 them. It can, however, hardly be held that the passage excludes the 
 creation of a natural obligation between father and son by a contract 
 of sale relating to peculium adventitium. It was of course written 
 before this kind of peculium had any existence. That a natural 
 obligation could be generated by contract between father and son is 
 shown by Dig. 12. 6. 38 : 46. 1. 56. i : ib. 71. pr., and by the application 
 of the doctrine of deductio de peculio (Savigny, Oblig. i. pp. 48, 49) : 
 and there seems to be no reason why a purchase by a son (having 
 peculium adventitium) from the father should not be good, or a pur- 
 chase by the father of some thing forming part of that peculium. 
 Under the republic, no doubt, when the only kind of peculium known 
 was that subsequently termed profectitium, a contract of emptio ven- 
 ditio entered into between filius and paterfamilias must have been 
 void, for it could have had no eifect whatever. 
 
12 WHO CAN BUY AND SELL. 
 
 which has been laid down in the preceding chapter, that 
 the contract always gives rise to bilateral obligation. 
 
 The authorities upon the point can in fact hardly be made 
 consistent with one another. The first conclusion which 
 they suggest is that, though the other party is bound, the 
 pupillus, whether vendor or purchaser, is laid under no 
 obligation of any sort or kind by such unauthorised con- 
 tract. Thus, in his Institutes ^ Justinian says 
 
 Unde in his causis ex quibus obligationes mutuae nas- 
 cuntur, ut in emptionibus, venditionibus, locationibus, 
 conductionibus, mandatis, depositis, si tutoris auctoritas 
 non interveniat, ipsi quidera, qui cum his contrahunt, 
 obligantur : at invicem pupilli non obligantuv : 
 
 and this is confirmed by Ulpian, who qualifies Justinian's 
 language by observing that the pupillus emptor is suable so 
 far as he has been enriched or benefited by the other party's 
 performance of the contract : 
 
 pupillus vendendo sine tutoris auctoritate non obligatnr, 
 sed nee in emendo nisi in quantum locupletior factus est^: 
 
 and elsewhere ^ he uses language even more explicit of a 
 pupil vendor, which if literally construed would certainly 
 dispose finally of the theory that the obligation produced by 
 the contract is of necessity bilateral, or what Pothier calls 
 synallagmatic. Similar expressions are found in one passage 
 of Paulus : 
 
 si pupilli persona intervenit, qui ante sine tutoris auc- 
 toritate, deinde tutore auctore emit, quamvis venditor 
 jam ei obligatus fuit, tamen quia pupillus non tenebatur, 
 renovata venditio effieit ut invicem obligati sint *. 
 
 ' Inst. I. 21. pr. 2 Dig. 26. 8. 5. i. 
 
 " Si quis a pupillo sine tutoris auctoritate emerit, ex uno latere con- 
 stat contractus, nam qui emit obligatus est pupillo, pupillum sibi non 
 obligat: Dig. 19. i. 13. 29. 
 
 * Dig. 18. 5. 7. I. It may perhaps be suggested that Ulpian, who is 
 the author of most of these statements that the pupillus was not 
 
WHO CAN BUT AND SELL. 1 3 
 
 What however, it may be asked, is the meaning of the is he 
 words obligatur, obligatus, tenebatur, in these passages ? ^""""^ ■ 
 We are certainly not bound to interpret them as meaning 
 that the pupillus was laid under no obligation whatever, 
 for they are quite reconcileable with the view that, though 
 not suable except 'in quantum locupletior factus est,' he 
 was bound by his promise naturaliter, and that that natural 
 obligation might have all or any of the effects incident to 
 naturahs obligatio in general '. In support of this it may 
 be said that (i) a pupillus who borrowed money without 
 the guardian's authority, although not suable, was never- 
 theless under a natural obligation to repay it ^ : (2) a pu- 
 pillus who made a promise in the form of stipulation was 
 bound by it naturaliter, for such a promise could be gua- 
 ranteed by a surety ^: (3) such natural obligation could be 
 released*, and could form the subject of a novation ^ It 
 may be replied that these arguments are drawn from the 
 field of unilateral obligations. There is however one clear 
 instance of a pupillus being bound naturaliter by a trans- 
 action of quasi-contractual character, and giving rise to 
 obligations binding on both parties. If a pupillus acted 
 without his guardian's authority as a negotiorum gestor, and 
 sued for his out-of-pocket expenses, he could be met by a 
 set-off of the sum due from him in respect of the business 
 to the person on whose behalf he had acted ^ : and nothing 
 
 bound in any sense, was habitually lax in bis use of words denoting 
 obligation, or used ' obligatus ' to mean ' suable.' No one probably 
 will dispute the proposition that a pupillus to whom a thing was lent 
 (commodata) was bound naturaliter by the ordinary duties which arose 
 from that contract: and yet in Dig. 13. 6. I. 2 Ulpian himself uses 
 language which, if strictly construed, would entirely negative the 
 possibility of such an obligation. 
 
 ^ Savigny, Obi. i. pp. 44-51- ^ Dig- 46- 3- 95- 4- 
 
 •' Dig. 45. I. 127. ' Dig. 46. 3. 95. 4- ' Dig. 39. 5. 19. 4. 
 ' Pupillus sane si negotia gesserit, post rescriptum Divi Pii etiam 
 conveniri potest in id quod factus est locupletior : agendo autem 00m- 
 pensationem eius quod gessit patitur : Dig. 3. 5. 3. 4. 
 
14 WHO CAN BUY AND SELL. 
 
 could be set off which was not owed, at any rate naturaliter. 
 (4) If a thing were sold at a fixed price subject to the con- 
 dition subsequent that no better offer were made within a 
 certain time (in diem addictio ') a better offer made by a 
 pupillus without his guardian's authorisation, and accepted 
 by the vendor, was sufficient to defeat the first sale : 
 
 Sed et si pupillus postea sine tutoris auctoritate pluris 
 emerit consentiente venditore, abibitur a priore emptione^. 
 
 Now no second offer could have this effect, unless it were 
 more advantageous to the vendor than the original sale : 
 
 quidc[uid enim ad utilitatem venditoris pertinet, pro 
 meliore conditione haberi debet ^ : 
 
 and how, under these circumstances, is it conceivable that 
 the pupillus should be under no obligation whatever to the 
 vendor ? 
 
 These considerations recommend the conclusion * that in 
 contracts of sale such as we have been examining the other 
 party, if under no disability, is always bound ; but that, 
 although he can sue the pupillus so far as his own perform- 
 ance has enriched him, his other rights engendered by the 
 contract are enforceable only in the indirect methods by 
 which natural obligation is enforceable in general. 
 
 It may be convenient to briefly summarize three other 
 theories upon the subject advanced by eminent authorities. 
 ( 1 ) The contract is primarily void as regards both parties : but 
 its invalidity is remediable by the pupillus' ratifying it, either 
 alone when his disability has terminated, or before with his 
 guardian's sanction. Such ratification must be acquiesced 
 in by the other party, who himself has no similar privilege : 
 it relates back to the moment at which the contract was 
 
 ' See Index, s. v. ^ Dig. 18. 2. 14. 3. ' Dig. 18. 2. 5. 
 
 * Held by Beclimann, Kauf, ii. §§ 169-172 : Vangerow, Pandekten, 
 i. § 279 : of. Ihering, Geiat des romischen Rechts, iii. p. 192. 
 
WHO CAN BUY AND SELL. 1 5 
 
 concluded, and the contract must be regarded as though it 
 had bound both parties in every respect from the outset ^. 
 
 (a) The contract in part is void, for the pupillus acquires 
 rights, but incurs no liabilities under it : he can enforce it 
 against the other party, but it cannot be in any way 
 enforced against him ^. 
 
 (3) The contract in part is void, for the pupillus is not 
 bound, while the other party is : but the former cannot 
 enforce it against the latter unless he is ready to perform 
 his own side of the bargain ^. 
 
 ' Wachter, Pandekten, i. § 84, Beilage ii A. For a slightly modified 
 view see Savigny, System, iii. p. 40. 
 ^ Arndts, Pandekten, § 234. 
 ' Windscheid, Lehrbuch, § 321, note 22. 
 
CHAPTEE III. 
 
 WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 
 
 The general principle. Sale cf Servitudes : of res alienae : of res extra 
 commercium : free inen ; res furtivae. Things whose alienation is forbidden 
 by law, or which have ceased to exist. Purchase of res sua. Sale of free 
 services. Restrictions imposed on right of sale by Testament or Contract. 
 Note A. Sale of res alienae in French and English Law. 
 
 The The general principle is stated thus bj;- Paulus : 
 
 general 
 
 principle. omnium rerum quamquis habere vel possidere vel per- 
 
 sequi potest venditio recte fit : quas vero natura vel 
 gentium ius vel mores civitatis eommercio exuerunt, 
 earum nulla venditio est^- 
 
 Putting aside then for the moment those things which 
 
 from their nature ^ cannot, or vrhich the law says shall not, 
 
 . be the subject matter of a contract of sale, we find that 
 
 the contract may validly relate to tangible or corporeal 
 
 things, whether moveable or immoveable ^ ; to things in- 
 
 ' Dig. 1 8. 1. 34. I. Tout ce qui est dans le commerce peut etre vendu, 
 lorsque des lois partioulieres n'en out pas proiiibe I'alienation : Code 
 Civil, Art. 1598. 
 
 ^ Paulus was perhaps referring to ' res naturali iure omnium com- 
 munes ' (Inst. li. I. I : Dig. I. 8. 3. pr.), such as air, the sea, running 
 water. But water may under given conditions be bought and sold, and 
 it seems reasonable to say that there is nothing which in itself cannot 
 be bought and sold except where it is to be freely had by all in such 
 quantities that it can possess no exchange value : Si alimenta fuerint 
 legata, dici potest etiam aquam legato inesse, si in ea regione fuerint 
 
 legata, ubi venumdari aqua solet in ea regione Africse vel 
 
 forte .ffigypli ubi aqua venalis est : Dig. 34. i. i : ib. 14. 3. 
 
 ' ' Mercis ' appellatio ad res mobiles tantum pertinet : Dig. 50. 
 16. 66. 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 1 7 
 
 corporeal, such as (i) servitudes or other iura in re aliena, 
 and the release of property from such burdens ; and (2) 
 rights of action, and debts due to the vendor from some third 
 person : to the mere right of possession : and to aggregates 
 or ' universities ' of things, corporeal and incorporeal. 
 Whether these things belong to the vendor or not, and 
 whether they are actually in existence or not at the time 
 when the contract is made, is as a rule immaterial. As to 
 two of these subjects of sale some explanation may con- 
 veniently be given at once : others are reserved for a 
 detailed examination in the next chapter.. 
 
 Servitudes can be sold only by the owner of property, Sale of aer- 
 who agrees for a consideration to create them in favour of 
 the purchaser : that is to say, a man may agree to sell a 
 right of way over his land, or a usufruct over his slaves, and 
 for breach of such an agreement he is suable by actio ex 
 empto. But although a sale of land will ordinarily carry 
 with it the praedial servitudes thereto appurtenant, a man 
 to whom a personal servitude belongs cannot sell it (except 
 by way of release to the owner of the servient property), 
 nor can an existing praedial servitude be sold without the 
 land to which it belongs, because they are by law intrans- 
 ferable apart from it \ But the usufructuary may sell the 
 enjoyment of his usufruct ^, and iura in re aliena which are 
 not servitudes, such as emphyteusis and superficies, being 
 transferable, admit of sale ^. 
 
 A contract of sale is in no way invalid because the thing of res 
 sold does not belong to the vendor, or because he has no ' ' 
 right to sell it : 
 
 rem alienam distrahere quern posse nulla dubitatio est, 
 
 1 But if the owner of a praedial servitude mortgages it to an 
 adjoining proprietor, the latter may apparently, in the event of non- 
 payment, sell it to another adjoining proprietor : Dig. 20. i. 12. 
 
 '^ Dig. 18. 6. 8. 2 : 7. I. 12. 2 : ib. 38. 
 
 = Dig. 18. I. 32- 
 
 C 
 
1 8 WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 
 
 nam emptio est et venditio : sed res emptori auferri 
 potest^. 
 
 As will be seen more fully hereafter, the vendor's obli- 
 gation is not necessarily to vest property in the purchaser : 
 he is bound only to give him undisturbed possession, and 
 to indemnify him for all loss which he may sustain through 
 having to give up the thing which he has bought to its 
 rightful owner. If one sells a thing which does not belong 
 to one, but with the owner's consent (as in all sales effected 
 by agents), the owner obviously is estopped from disputing 
 the purchaser's title : and if the vendor has a mortgage or 
 similar security given him over the property by the owner 
 himself, and sells on non-payment of the debt at the time 
 agreed upon, he is taken to sell as the owner's agents 
 If however the vendor has in fact no rights over the pro- 
 perty, and no authority to dispose of it, the owner can 
 always recover it from the purchaser by actio in rem, unless 
 (i) the latter has in the meanwhile acquired a valid title 
 to it by usucapion^, or (2) the former has become the 
 vendor's heir*, or (3) has ratified the vendor's action®. 
 As between the vendor and the purchaser of property of 
 which the former has no right to dispose, the validity of 
 the contract depends upon the state of their knowledge, 
 (i) If both are aware of the facts, but nevertheless are 
 acting in good faith (as where an agent has received autho- 
 rity to sell from a person who is not owner, but whom 
 both believe to be such) the contract is binding on each, 
 whereas it is void if they are in mala fide ^. (a) If neither 
 of them knows the facts, it would seem that both are 
 
 ^ Dig. 18. I. 28. •' Inst. ii. 8. i : cf. ii. i. 41. 
 
 " Cod. 4. 52. I. ■* Cod. 4. 51. 5. 
 
 ■^ In this case he can compel the vendor by actio negotiorum 
 gestorum or by oondictio sine causa to surrender to him the purchase 
 money, or to assign to him his rights against the purchaser : Cod. 2. 
 18. 19: 3. 32. 3: 4. SI. 
 
 ' Dig. 18. I. 34. 3. 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 1 9 
 
 bound 1 by the ordinary duties arising from the contract^. 
 (3) Knowledge on the part of only one of the parties that 
 the property is not the vendor's is material only when he 
 is acting in bad faith, (a) Where it is the vendor, he is 
 bound, if he has received the purchase money, to deliver 
 the property, and the purchaser is not only entitled to 
 compensation on eviction, but may sue ex empto even 
 before the rightful owner evicts him \ If he has not re- 
 ceived the purchase-money, he is debarred from demanding 
 it unless he will give security against eviction *. (b) Where 
 it is the purchaser who knows that the vendor has no right 
 to dispose of the goods, he cannot be compelled to pay the 
 price until the property has been delivered ^ but the vendor 
 cannot be compelled to deliver it, or to indemnify the 
 purchaser in the event of eviction ^. 
 
 The following classes of things cannot be the subject of 
 a contract of sale, except where the purchaser, without 
 fault on his part, is in error as to their real nature '. 
 
 (i) Things which ai-e extra commercium, such as res of res 
 sacrae or religiosae^ and res publicae ^. "^^^^ '"^™" 
 
 mercium, 
 
 ' See Dig. 18. i. 70. 2 j;.g. Big. 19. i. 11. 7 and 8. 
 
 ^ Dig. 19. I. 30. I. * Dig. 18. 6. 19. I. 
 
 = Dig. 18. I. 34. 3. 
 
 * See note A at the end of this chapter on the modern law of 
 France and England as to the effect of sales by non-owners of what 
 they purport to sell. 
 
 ' See Chap. VI, inf. 
 
 * Inst. iiL. 23. 5 : Dig. 18. i. 4 : ib. 73. pr. 
 
 ' Dig. 18. I. 22: ib. 62. I : Pothier, 10. Only those things which 
 were pubKco usui destinatae were governed by this rule : things of 
 which the State reserved to itself the use and disposal, such as slaves 
 or military stores, could be bought and sold just like any other res 
 aliena : Celsus filius ait . . . te emere non posse . . . sacra et religiosa 
 loca, aut quorum commercium non sit, ut publica, quae non in peounia 
 populi, sed in publico usu habentur, ut est Campus Martius : Dig. 18. 
 I. 6. pr. Public offices were incapable of sale, Cod. 9. 27. 6. In 
 French law too they are deemed extra commercium, and 'il faut 
 placer dans cette categorie la convention par laquelle le funetion- 
 
 C a 
 
men. 
 
 20 WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 
 
 of free- (3) Free men^. The only trace left in the law of Jus- 
 
 tinian of the paterfamilias' privilege of selling those in 
 his power is the right given by an enactment of Constan- 
 tine^ to parents in extreme poverty thus to dispose of 
 children immediately upon birth. The effect was to make 
 them slaves, but any one might redeem and make them 
 free again. 
 Ves fur- (3) Property which has been stolen cannot validly be 
 
 bought and sold, if the parties are aware of the circum- 
 stances. The rules here are the same as those which have 
 been already stated in connection with the sale of property 
 known not to belong to the vendor by the parties or either 
 of them ^. 
 things (4) Things whose alienation is expressly prohibited by 
 
 aiie*nation ^^"^ *■ ^^ these it will be sufficient to give examples. The 
 hdd' h ^^^^^^^ ■'^^ prohibited by a lex Julia from parting with 
 law, land which came to him as a dowry with his wife ®. The 
 
 father might not alienate the peculium adventitium of the 
 child in power '*- Ees litigiosae, i. e. property the title to 
 which is in dispute in a pending action^ could not be the 
 subject of conveyance and therefore not of sale'' Pur- 
 chases of the material of which standing houses were built, 
 and which the owner proposed to take down for speculative 
 
 naire stipule un certain prix pour donner sa demission : ' but by a 
 law of 1 816 certain public officers have received tbe right of nominating 
 their successors to the Government, and this may be done for a con- 
 sideration. Contracts for the sale of offices are void by the EngKsh 
 Common law, as contrary to pubHc policy (Gat-foiih v. Fearon, I Hy. 
 Bl. 237, and other oases cited by Benjamin, pp. 501-504), and it is the 
 same with the sale of a pension, unless it was granted exclusively as 
 a reward for past services : Wells v. Foster, 8 M. & W. 149. 
 
 ^ Dig. 18. I. 4-6 pr. : ib. 34. 2 : ib. 70. ^ Qq^_ ^_ ^^_ ^ 
 
 ' P. 18 supr. 
 
 * Nullum enim pactum, nullam conventionem, nullum conti-actum 
 inter eos videri volumus subsecutum, qui contrahunt lege contrahere 
 prohibente : Cod. i. 14. 5. pr. 
 
 "• Inst. ii. 8. pr. : Dig. 23. 5. 4. « Cod. 6. 60. i. i. 
 
 ■^ Dig. 44. 6. I & 2 : Cod. 8. 36. 2. 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 21 
 
 purposes, were forbidden and penalised by law^. Gains 
 inclined to the view, which Justinian seems to have 
 adopted by incorporating the opinion in the Digest ^, that a 
 sale of poison was void if it were of such a kind as could 
 not be of any beneficent use even in combination with other 
 substances. 
 
 (5) If the thing which it has been agreed to buy and sell things 
 has, unknown to both parties, ceased to exist at the time have 
 at which the contract is made, the contract is void ^- The ^^j^^*^^ *" 
 vendor must return the purchase money, if he has been 
 paid * : and if he alone knew that the property no longer 
 existed he is further liable to compensate the purchaser in 
 damages for any loss which he may sustain through non- 
 performance, whereas if the purchaser alone knew it, he is 
 bound to pay the purchase money, and has no rights 
 himseK against the vendor ^. If both were aware that the 
 property no longer existed, the contract is void ®- Where 
 
 ^ Dig. 18. I. 52 : 39. 2. 48 : Cod. 8. 10. 2 : PotMer, 12. 
 
 '^ Dig. 18. I. 35. 2 : Pothier, 11. 'The thing sold may be such as in 
 its nature cannot form the subject of a valid contract of sale, as an 
 obscene book or an indecent picture, which are deemed by the 
 common law to be evil and noxious things. The article sold may be 
 in its nature an innocent and proper subject of commercial dealings, 
 as a drug, but may be knowingly sold for the purpose, prohibited by 
 
 law, of adulterating food or drink In all these oases the law 
 
 permits neither party to maintain an action on such a sale : ' Ben- 
 jamin, p. 491. 
 
 ' Dig. 18. I. 15. pr. : Pothier, 4. The rule is sometimes put upon 
 the ground of mistake, but it may equally rest on the ground that one 
 of the essential conditions of the contract has failed : nee emptio nee 
 venditio sine re quae veneat potest intellegi : Dig. 18. i. 8. pr. In 
 English law ' when there is a contract for the sale of specific goods, 
 and the goods unknown to the seller have ceased to exist at the time 
 of the contract, the contract is void (Couturier v. Jfastie, 5 H. of L. 
 Cases, 673 : Strickland v. Turner, 7 Ex. 208). As there can be no sale 
 without a thing transferred to the purchaser in consideration of the 
 price received, it follows that if at the time of the contract the thing 
 has ceased to exist, the sale is void : ' Benjamin, p. 81. 
 
 « Dig. 18. I. S7- W- ^ Dig. ib. 57. 2. « Dig. ib. 57. 3. 
 
of res sua, 
 
 2 2 "WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 
 
 the thing has ceased to exist only in part, the contract is 
 void, and the purchaser can recover any purchase money 
 which he has paid, only where less than half of it is left, or 
 where the portion wanting is the portion for which mainly 
 the purchaser can show that he bought it ^. Otherwise the 
 contract stands, the purchase money being proportionately 
 abated ^. On the same principle a sale of the inheritance 
 of a living third person, or of a person who does not and 
 never has existed, is void*, though Justinian* legalised 
 sales of the inheritance of a living person to which the 
 vendor hoped to succeed, provided that person assented, 
 though he was not thereby bound to leave it to the vendor 
 at all 6- 
 Purchase (6) An agreement to purchase a thing which already 
 belongs to the purchaser is void ^, irrespective of his know- 
 
 ' Dig. 1 8. I. 57- pr. 
 
 ^ Dig. loc. cit. Pothier, 4. Si au moment de la vente la chose vendue 
 etait perie en totalite, la vente serait nulls. Si una partie seulement 
 de la chose est perie, il est au choix de I'acquereur d'abandonner la 
 vente, ou de demander la partie oonservee, en faisant determiner le 
 prix par la ventilation : Code Civil, Art. 1601. There seems to be no 
 such rule in English law : Ban- v. Cribson, 3 M. & W. 390. ' The only 
 question is, whether the article has been so far destroyed as no longer 
 to answer to the description of it given by the contract : ' Chalmers, 
 Sale of Goods, p. 11. 
 
 ^ Dig. 18. 4. I. Cum hereditatem aliquis vendidit, debet esse heredi- 
 tas, ut sit emptio. Nee enim alea emitur, ut in venatione et similibus, 
 sed res : quae si non est, non contrahitur emptio, et ideo pretium condi- 
 cetur : Dig. ib. 7. 
 
 * Cod. 2. 3. 30. 
 
 ^ On ne peut veudre la succession d'une personne vivante, meme de 
 son consentement : Code Civil, Art. 1600. In English law the sale of 
 a man's possible interest as the devisee of a living owner, on the 
 terms that he shall return the purchase money if he does not become 
 the devisee, is perfectly good: Cook v. Field, 15 Q. B. 460: and see 
 Pollock on Contract, 4th Ed., p. 302. 
 
 " Suae rei emptio non valet : Dig. 18. 1. 16. pr. : Cod. 4. 38. 4, ib. 10. 
 La raison est que le Contrat de Vente consiste dans I'obligation que 
 contracte le vendeur de faire avoir la chose a I'acheteur : et par con- 
 sequent il consiste a rendre I'acheteur oreancier de la chose qui lui est 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 23 
 
 ledge of the facts : such knowledge however affects his right 
 to recover the purchase money, if paid, for he is not allowed 
 to do this if he was aware that the property which he was 
 buying was already his own ^ Hence if what he is buying 
 belongs to him in part ownership, the sale is good only in 
 respect of the part which does not belong to him, and he 
 can be compelled to pay for that part only^- But if one 
 man is entitled to the possession of property belonging to 
 another, the latter can validly agree to purchase that 
 possession ^. So too a man may knowingly purchase a 
 thing which will belong to him on the fulfilment of a 
 suspensive condition or condition precedent, because the 
 condition may fail, and he wishes to become its owner in 
 all events*, though if he is not aware of his conditional 
 rights, and the condition is satisfied, it avoids the sale, and 
 he can recover the purchase money which he has paid ^ : 
 and similarly although an absolute and unconditional 
 purchase of what already belongs to one is void, one can 
 buy it under the condition and to meet the contingency of 
 its ceasing to be one's property "- 
 
 vendue : or, il est evident que cela ne peut avoir lieu par rapport a une 
 chose qui appartiendroit deja a I'aoheteur : car personne ne peut etre 
 creancier de sa propre chose : I'acheteur ne peut pas demander qu'on 
 lui fasse mmr une chose qui est deja a lui : Pothier, 8. 
 
 1 Dig. 18. I. 16. pr. ' Dig. 18. I. 18. pr. 
 
 ' Rei suae emptio tunc valet, cum ab initio id agatur, ut possessionem 
 emat, quam forte venditor habuit, et in possessionis iudicio potior 
 esset. Dig. 18. l. 34. 4. It is possible that for et we ought to read ut 
 with Haloander, for otherwise there is no construction, and for esset, sit 
 ox fiat, to bring it into line with agatur and emat. The sense would 
 then be ' if the object of the contract is to buy a possession vested in 
 the vendor, which has actually enabled or is such as to enable him to 
 succeed in an interdict retinendae possessionis ' : see Treitschke, Kauf- 
 contract, ^i : Ctltick, Pandekten, 16. p. 40. 
 
 * Dig. 18. I. 61. ° Dig- 19- I- 29- 
 
 ^ Par exemple, si je suis proprietaire d'une maison comprise dans une 
 substitution dont je suis greve envers vous : quoiqu'avant I'ouverture 
 de la substitution je sois proprietaire de cette maison, jepuis I'acheter 
 
24 WHAT CAN AND CANNOT BK BOUGHT AND SOLD. 
 
 Saieoffree (7) It would seem that a man cannot sell his services, 
 services, ^j^. j^^ ^^ labour : for even if he should agree to render them 
 for a money consideration for the whole of his lifetime, 
 the contract cannot be anything except one of hiring 
 and letting. There is also some question whether money 
 can be bought and sold. As to coins, which are not, or 
 which have ceased to be, legal tender in a country, but 
 which are sought after for their rarity or beauty, little or 
 no doubt can be felt : but in respect of the ordinary 
 currency it is difficult to say that any such transaction can 
 be more than an exchange : 
 
 alioquin non posse rem expediii, quae videatur res venisse, 
 et quae pretii nomine data esse : nam utramque videri 
 et venisse et pretii nomine datam esse rationem non 
 pati ^, 
 
 The question however is one upon which, apart from such 
 passages as this, there is no Roman authority ^- 
 
 Restrictions imposed on the power of selling property 
 
 Restric- 
 tions on 
 right of 
 hale im- 
 posed by 
 Testa- 
 ment, 
 
 au cas et sous la condition qu'il y auroit par la suite ouverture a la 
 substitution. Mais si j'ai achete purement et simplement ma propre 
 chose, le contrat est nul, et ne deviendra pas valable, quoiqu'elle cesse 
 par la suite de m'appartenir : Pothier, 9. Similarly Blackstone says 
 (Comm. ii. 450), ' if a man buys his own goods in a fair or market, the 
 contract of sale shall not bind him so as that he shall render the price, 
 unless the property had been previously altered by a previous sale ' : 
 and in accordance with this in Bingham v. Bingham (i Ves. Sr. 126), 
 where a purchaser was dealing vrith his own property, not knowing it 
 to be his, the contract was held void as being legally impossible and 
 because the supposed subject matter of the transaction totally failed. 
 But in Scotsonv. Fegg {30 L. J. Ex. at p. 226) Wilde, B. said that a man 
 might validly buy his own goods from another in whose possession 
 they were, and who was entitled to retain such possession : and what 
 may be called ' quasi exceptions ' to the rule are of daily occurrence, 
 as where a farmer buys in his goods when sold under a distraint for 
 tithe rent charge, and in sales by sheriffs generally. 
 
 ' The Proculian argument in Inst. iii. 23. 2. 
 
 ^ See Bechmarm, JKauf, ii. § 154, and the references in Windscheid, 
 Lehrbuch, § 385, note 3. 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 25 
 
 by the directions or stipulations of private persons do not, 
 as a rale, prevent it from being sold, or affect the validity 
 of a contract for the sale of it. 
 
 I. If a testator charges an heir or other person taking 
 a benefit under his will not to sell property thereby 
 bequeathed to him, and the charge is imposed for the 
 advantage of some specific and determinate person 1, the 
 property can be sold so as to vest an absolute title in the 
 purchaser only with the assent of such person or persons ^. 
 If sold without such assent, the contract, as such, is good 
 between vendor and purchaser : as regards the person for 
 whose benefit the trust was created it is governed by the 
 ordinary rules relating to sales of res alienae ^. If a family 
 settlement of land be made by a will, and the owner for 
 the time being becomes insolvent, the purchaser of the 
 estate will hold it onlyjaz<?' autre rz'e* : a voluntary sale by 
 the owner for the time being merely causes the land to 
 shift immediately to the person next entitled in remainder °. 
 
 II. A contract entered into by the owner of property, or by Con- 
 and purporting to bind him not to sell it, as a rule is void : 
 
 nemo paeiseendo efficere potest . . . ne vicino invito 
 praedium alienet ^ : 
 
 The reason being that, speaking generally, the promisee 
 has no interest in the performance of the promise '^. But 
 there can be no doubt that the desired effect may be attained 
 by the owner promising a penal sum by stipulation if he 
 should in fact sell * : and there are two exceptions, one 
 narrow and the other wide, to the general principle. («) If 
 
 ^ Dig. 30. 114. 14 : 32. 38. 4. ^ Dig. 30. 120. i. 
 
 ^ Cod. 6. 43. 3. 2 and 3 : Pothier, 15 : see p. 18 supr. 
 
 * Dig. 31. 69. I. ^ Dig. 31. 69. 3 : ib. ^^. 27. 
 ^ Dig. 2. 14. 61. 
 
 ' Inventae sunt enim huiusmodi obligationes ad hoc, ut unusquisque 
 sibi adquirat quod sua interest : Inst. iii. 19. 19. 
 
 * Arg. Dig II. 7. II. 
 
26 WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 
 
 the mortgagor or hypothecary debtor agreed with his 
 creditor not to sell the property mortgaged or charged, a 
 sale in contravention of the agreement was void^: the 
 anomaly is usually explained by the fact that the creditor 
 has rights iu rem, and some civilians would extend the 
 exception to all cases in which the promisee is invested 
 with similar rights over the property to which the contract 
 relates ^. (i) The vendor of property might bind the pur- 
 chaser by a pactum de non ahenando, adiectum to the 
 contract of sale ^ : but the effect of such a term in the 
 contract was not to avoid a sale made in violation of it, 
 but merely to entitle the original vendor to sue ex vendito 
 for such damages as he could shew he had sustained *. 
 
 ^ Dig. 20. 5. 7. 2. ^ E.g. Gluck, Pandekten, 16. p. 56. 
 
 ^ Dig. 19. I. 21. 5 : 18. I. 75 : 2. 14. 48 : and compare Cod. 4. 54. 9. 
 witli Dig. 2. 14. 61. 
 
 * Dig. 18. I. 75 : 19. I. 21. 5 : of. Dig. 45. i. 135. 3 ; Cod. 4. 6. 3. 
 
 Note A. 
 
 Sale of res The French law of the eighteenth century as to sales of res 
 a lenae in g^jjgjjg^g jg stated in accordance with the civil law by Pothier, 7 : le 
 and Eng- Contrat de Vente ne consiste pas dans la translation de la propriete de 
 lish Law. la chose vendue : il suffit, pour qu'il soit valable, que le vendeur se 
 soit valablement oblige de faire avoir a I'acheteur la chose vendue : et 
 1' obligation qu'il en a contractee ne laisse pas d'etre valable, quoiqu'il 
 ne soit pas en son pouvoir de la remplir, par le refus que fait le pro- 
 prietaire de la chose, de consentir a la vente : il suiEt que ce que le 
 vendeur a promis ait ete quelque chose de possible en soi, quoiqu'il ne 
 fut pas en son pouvoir : il doit s'imputer de s'etre temerairement oblige. 
 By the Code Civil the law of Prance was altered : la vente de la chose 
 d'autrui est nulle : elle peut donuer lieu a des dommages-interets 
 lorsque I'acheteur a ignore que la chose fut a autrui : Art. 1599. The 
 change seems to have been due to the assumption that the purchaser 
 intends to bind himself only on the condition of becoming owner. The 
 article of the Code is interpreted by Demante (by reference to Art. 
 1 1 84) to mean that such a sale is not void, but merely voidable at the 
 option of the purchaser. ■ That article provides that in synallagmatic 
 contracts either party can demand rescission on failure by the other 
 to perform what he has undertaken : and as according to the principles 
 
WHAT CAN AND CANNOT BE BOUGHT AND SOLD. 27 
 
 of French law the vendor is bound to transfer property in the goods 
 sold (Fremery, Etudes du Droit Commercial, p. 5, cited by Benjamin, 
 p. 383), the purchaser on discovering that he had no right to sell can 
 avoid the transaction even before the true owner has taken any steps 
 to recover the goods from him. But the provision of the Code has no 
 application to purchases of things in genere to be procured by the 
 vendor, nor apparently to a contract to deliver a thing in exchange for 
 money and to guarantee the possession, with an express stipulation 
 that one does not engage to give a good title as owner : Demante, 
 Cours analytique de Code Civil, p. 51. 
 
 The law of Scotland appears to be in accordance with that of 
 Eome : ' possession of moveables presumes property : and in the rapid 
 intercourse of trade the buyer of goods is not allowed to stop the 
 bargain on pretence of want of title, or on mere doubts as to the 
 possibility of a challenge : ' Bell, Principles of the Law of Scotland, 
 i. p. 114. 
 
 In English Law, Benjamin (pp. 6, 7) states that 'in general no 
 man can sell goods and convey a valid title to them unless he be 
 the owner, or lawfully represent the owner: nemo dat qui non 
 habet' {Peer v. Humphrey, 2 A. & E. 495), but a man may make 
 a valid agreement to sell a thing not yet his. A good title, how- 
 ever, will be acquired through a sale of goods which do not belong 
 to the vendor, if sold in market overt and the purchaser is acting in 
 good faith, though the vendor remains liable to the rightful owner 
 (Delaney v. Wallis, 14 L. E. Ir. 31 , : and other exceptions to the rule 
 are found in sales of negotiable instruments (24 & 25 Vitf. c. 96. s. 100) : 
 sales by pawnees (but is not the reason of this that given by Gains, 
 Inst. ii. 64 : sed hoc forsitan ideo videatur fieri, quod voluntate debitoris 
 intellegiturpignus alienari ?) : by public officers, such as sheriffs selling 
 the goods of defendants in execution : by agents entrusted with the 
 possession of goods for the purpose of sale : and by masters of ships 
 in cases of absolute necessity {the Gratitiidine, 3 Rob. Adm. 259). The 
 question whether in English law the vendor is to be taken by implica- 
 tion to warrant his title will be examined in connection with a later 
 chapter. 
 
CHAPTEK ly. 
 
 CERTAIN SPECIAL SUBJECTS OF SALE. 
 
 Emptio generis. Sale of article to be made or procured by the vendor : 
 doubts as to its true legal character. Emptio spei. Purchase of an 
 inheritance. Purchase of a debt, or of a right of action, whether availing 
 in rem or in personam : rules relating to assignment. 
 
 Emptio When what is bought is not a specifically determined 
 
 generis. ° i. •/ 
 
 article, such as this particular estate Blackacre, or this 
 particular horse, book, watch, or what not, but a quantity 
 of goods of a certain description, determined by number, 
 weight or measure (such as loo quartei'S of red British 
 wheat J lOO dozens of Chateau Lafitte claret, vintage 1883, 
 TOO lb. potatoes of the crop actually gathered from a par- 
 ticular field), or even a single thing not specifically deter- 
 mined, but by description merely (as an order for ' one of 
 your patent rapid filters ') the transaction is called emptio 
 generis. As a rule the goods belong to the class of things 
 known as ' fungible,' but this is not necessary : and (ac- 
 cording to the generally received opinion) it is immaterial 
 whether the vendor already has such goods in his posses- 
 sion, or has to manufacture or procure them. Where the 
 goods bought have to be selected from a larger quantity (as 
 for instance where one orders a dozen shovels from an iron- 
 monger's stock, or agrees to buy fifty out of a larger number 
 of lambs born in the past season) the selection in cases of 
 doubt rests with the vendor, who may, if the genus com- 
 prises different qualities, send the worst if he pleases ^- As 
 
 ^ Dig. 18. I. 60, cf. ib. 25. I : 45. i. 99. pr. : 17. i. 52 : 12. 6. 32. 3. 
 
CEETAIN SPECIAL SUBJECTS OP SALE. 29 
 
 ■will be seen hereafter, this species of sale is an exception 
 from the rule that the goods purchased are at the purchaser's 
 risk from the moment of the conclusion of the contract ^. 
 
 It has been already pointed out that an agreement by A Sale of 
 to make an article for £ out of his own (^'s) materials \ is ^e madeor 
 a sale, nor is there any doubt that an agi-eement to sell P'^"^^^'"^ 
 a certain thing or number of things out of a larger quantity vendor : 
 actually belonging to the vendor is a good sale as well. 
 It has however been questioned whether an agreement to 
 procure and deliver a certain quantity of goods of a par- 
 ticular kind, or to make an article of a given kind out of 
 materials to be procured by one from some one else, can be is it really 
 deemed a sale on the principles of the Civil Law. It is 
 urged ■'* that no contract of this kind can be considered to 
 be performed at all, unless both (i) property is vested in 
 the other party, so that one fundamental principle of the 
 Civil Law — that embodied in the rules relating to eviction — 
 has no application to the case, and (2) the article made or 
 
 According to English law, if there is an executory contract of sale, or 
 an agreement to sell goods to be selected and appropriated to the 
 buyer, the rule on the subject of selection is ' that when, from the 
 nature of an agreement, an election is to be made, the party who 
 is by the agreement to do the first act, which, from its nature, 
 cannot be done till the election is determined, has authority to make 
 the choice, in order that he may be able to do that first act, and when 
 once he has done that act, the election has been irrevocably deter- 
 mined, but till then he may change his mind' (Benjamin, p. 319). 
 ' Thus if A sells a thousand bricks out of a stack to B, who is to send 
 his cart and fetch them away, B is to do the first act, and cannot do it 
 till the election is determined : he may choose first one part of the 
 stack and then another, and repeatedly change his mind . . . until he 
 has put them in his cart to be fetched away. But if the vendor is to 
 despatch the goods, or do anything to them that cannot be done till 
 the goods are appropriated, he has the right to choose what the goods 
 shall be : ' Benjamin, loo. cit. : cf. Blackburn on Sale, p. 128 : Heytvard's 
 Caae, 2 Coke, 36 : Aklridge v. Johnson, 7 E. & B., 885, 901. 
 
 1 Dig. 18. I. 35. 7. 
 
 2 Ex auro suo : Gaius, iii. 147 : Tnst.iii. 23. 4. 
 ' E.g. by Bechmann, Kauf, ii A. p. 332. 
 
spei 
 
 30 CERTAIN SPECIAL SUBJECTS OF SALE, 
 
 procured possesses the marks and attributes bargained for, 
 so that a second fundamental principle — that of implied 
 warranty of quality— is also excluded: and further that 
 the application of the doctrine of periculum to the cases 
 raises difficulties towards the solution of which the authori- 
 ties give little or no assistance. This opinion seems to be 
 gaining ground among modern writers on the Civil Law ^, 
 and it cannot be disputed that the texts contain no single 
 case in which transactions of these kinds are clearly de- 
 scribed as sales ^- 
 Emptio When what is bought is a thing which does not as yet 
 
 exist, and which may never exist at all, or the quantity or 
 value of which is so indeterminate that it may, as we say, 
 come to nothing, the transaction is called emptio spei. If 
 the intention of the parties is that the purchase money 
 shall be paid in any case, whether the hoped for equivalent 
 comes to anything or not, it is commonly termed, for the 
 sake of distinction, emptio spei simplicis : if it is that it shall 
 not be paid unless something at any rate is forthcoming, 
 or shall only be paid in proportion to what the purchaser 
 actually gets, it is termed emptio rei speratae. The first is 
 presumed to be intended in such cases as where one agrees 
 to buy the fish that shall be caught in such or such a net or 
 nets, the game that shall be killed in such or such a battue, 
 
 ^ ' Es meliren sicli in neuer und neuester Zeit die Stimmen, welche 
 den grundsatzlichen Gegensatz zwisohen beiden Gebieten betonen und 
 zugleicb mebr oder weniger entschieden anerkennen, dass das Liefe- 
 rungsgeschaft jedenfalls in den Quellen des romiscben Reohts nicbt als 
 Kauf vorkommt : ' Beohmann, op. cit. p. 331, note 4. On tbe othei- 
 hand, it is said in Holtzendorff, Recbtslexioon, ii. p. 664, ' tbe defenders 
 of the view that a " Lieferungsvertrag " is a contract of sale affirm 
 that just as a thing to be made by one [out of one's own materials ?] 
 may be the subject of a sale, so can a thing which one has to procure. 
 There is no doubt that this view is correct.' But on German or on 
 Roman principles ? 
 
 ^ The nearest are Dig. 18. i. 20 : 18. 6. 15. i. Of course there is no 
 doubt that they are sales both in Scotch (Bell, §§ 90, 147) and in 
 English law : HlbhlewhUe v. McMorris, 5 M. & W. 462, Benjamin, p. 311, 
 
CERTAIN SPECIAL SUBJECTS OE SALE. 3 1 
 
 the minerals that shall be extracted from such or such a 
 mine to be opened : 
 
 aliqnando tamen et sine re venditio intellegitur, veluti 
 cum quasi alea emitur. Quod fit, cum captum piscium 
 vel avium vel missilium emitur: emptio enim contrahitur 
 etiam n nihil inciderit, quia spei emptio est ^. 
 
 The second, which is in fact the purchase of a future 
 thing conditionally on its coming into existence, is pre- 
 sumed to be intended when one buys a thing which may 
 reasonably be expected to come into existence in the ordi- 
 nary course of nature : e. g. the offspring of a slave woman 
 now actually with child, the lambs to be born in the fol- 
 lowing spring on a particular sheep run, or next season's 
 yield from a certain farm, garden or vineyard. In such 
 a case the quality of the produce has no effect upon the 
 amount of the purchase money, which, as it cannot be 
 increased because the quality is better, similarly cannot be 
 diminished because it is worse in fact than was expected. 
 The presumption, however, in favour of either construction 
 can be rebutted by evidence of a contrary intention. For 
 instance, if one were to agree to buy for a fixed sum the 
 whole of next year's vintage on a particular vineyard, this 
 
 ' Dig. 18. I. 8. I : cf. Dig. 19. i. 11. 18 : ib. 12. The case is criticised 
 by Benjamin, p. 87. The Scotch law is the same : Bell, § 91 (2). Cette 
 espece donna lieu a cette fameuse contestation, rapportee par Plutarque 
 dans la vie de Solon. Des Milesiens se trouvant dans I'lsle de Cos, 
 avoient achete de quelques pecheurs leur coup de filet : ces peoheurs 
 pecherent un trepie d'or : les acheteurs le pretendirent. On doit de- 
 cider qu'ils etoient mal fondes : les vendeurs et les acheteurs n'avoient 
 entendu vendre ou acheter que le poisson qui seroit pris : le 
 trepie d'or auquel aucune des parties contractantes n'avoit pense, ne 
 faisoit done pas partie du march^ : et c'est une bonne fortune dont les 
 peoheurs seuls doivent profiter. Cette decision est plus juste que celle 
 de rOracle, qui, consulte sur cette contestation, adjugea le trepie au 
 plus sage des mortals ; afln qu'aucune des parties n'osant s'attribuer 
 cette qualite, le trepie d'or demeurat aux Pretres : Pothier, 6. 
 
32 CERTAIN SPECIAL SUBJECTS OF SALE. 
 
 would be an emptio spei ^ ; but if the agreement were for 
 ten casks of the wine which so and so should make next 
 year from his vineyard, it would be an emptio rei speratae, 
 and if only five casks were made, or none at all, the pur- 
 chaser would have to pay only for five or none: while 
 conversely the vendor would not be liable to deliver more 
 than was made in fact, though he might have agreed to 
 sell more^- 
 Puichase The purchase and sale of an inheritance, that is to say, 
 herUance. of the whole estate of a deceased person, or of some aliquot 
 share of such estate as one is entitled to as coheir, is a 
 peculiar transaction requiring some brief explanation. An 
 inheritance may be sold either before or after it is ' delata ' 
 to the heir, in other words, either before or after the 
 time has arrived at which he may accept it. If, for in- 
 stance, one is a substitute under a will, and sells before the 
 event occurs upon which one's right to accept is to accrue, 
 or if one is instituted subject to a suspensive condition, 
 and sells before the condition is satisfied, the sale is an 
 
 1 Arg. Dig. 1 8. I. 78. 3. 
 
 ^ Dig. 18. I. 39. I. For the different ways of interpreting this 
 passage see Gluok, Pandekten, 4. p. 189, sqq. : Vangerow, Pandekten, 
 § 632, note i. I. 
 
 ' In relation to things not yet in existence, or not yet belonging to the 
 vendor, the law considers them as divided into two classes, one of which 
 may be sold, while the other can only be the subject of an agreement 
 to sell, of an executory contract. Things not yet existing which may 
 be sold, are those which are said to have a potential existence, that is> 
 things which are the natural product or expected increase of something 
 already belonging to the vendor. A man may sell the crop of hay to 
 be grown on his field, the wool to be clipped from his sheep at a future 
 time, the milk that his cows will yield in the coming month, and the 
 sale is valid. But he can only make a valid agreement to sell, not an 
 actual sale, where the subject of the contract is something to be after- 
 wards acquired, as the wool of any sheep, or the milk of any cows that 
 he may buy within the year, or any goods to which he may obtain title 
 within the next six months : ' Benjamin, pp. 82 and 83 : Grantham v. 
 Hawley, Hob. 132: Wood and Foster's case, i Leon. 42 : Robin-son v. 
 Macdonnel, 5 M. & S. 228 : Reed v. Blades, 5 Taunt, 212, 222. 
 
CERTAIN SPECIAL SUBJECTS OF SALE. 33 
 
 emptio spei S and is governed by the rules, recently stated, 
 by which such transactions are regulated. A sale after 
 the inheritance is ' delata,' but before it has been actually 
 accepted, lays the heir under an obligation to the purchaser 
 to accept, and the position then becomes similar to a sale 
 after acceptance. 
 
 Where that is the case, it is important to distinguish 
 between the effects of the contract, as between the vendor 
 and the purchaser, and as between either of them and 
 third parties who are in any way concerned with the 
 inheritance. 
 
 In the first place, the vendor is bound to the purchaser 
 by an implied warranty of his title as heir : if it turns out 
 to be invalid, the latter can recover his purchase money ^, 
 and such further damages as he has sustained ^: if it is 
 incomplete, or of a different kind from that represented, 
 he is equally liable in damages *. Unless however he has 
 given an inventory * of the inheritance, or made represen- 
 tations as to its value ^, he is under no liability if it prove 
 less valuable than was supposed''. The sale does not make 
 the purchaser heir in lieu of the vendor^; but the latter is 
 bound to put him in possession of all property which was 
 
 ^ Dig. 18. 4. 10. II & 13 : Pothier, 527, 528. 
 
 " Dig. 18. 4. 7. " Dig. 18. 4. 8 & 9. 
 
 * E. g. si quasi heres vendideris hereditatem, cum tibi ex Sco. Trebel- 
 liano restituta esset hereditas, quanti emptoris intersit teneberis : Dig. 
 18. 4. 16. 
 
 ^ Dig. 18. 4. 14. I & 15. * Dig. 18. 4. 15. 
 
 ' Celui qui vend una heredite sans en specifier en detail les objets, 
 n'est tenu de garantir que sa qualite d'heritier : Code Civil, Art. 1696 : 
 Demante, Cours analytique de Code Civil, vii. p. 202. 
 
 " Gaius, ii. 251 : Inst. ii. 23. 3. Lorsqu'on vend une heredite, ce 
 n'est pas le titre et la qualite d'heritier qu'on vend : ce titre et cette 
 qualite sent attaches a la personne de I'h^ritier, et ne peuvent s'en 
 separer, d'oii il suit qu'ils ne peuvent se vendre : car comme personne 
 ne peut s'obliger a rimpossible, je ne puis m'obliger envers un autre 
 a lui faire avoir une chose, qui par sa nature ne peut subsister dans une 
 autre personne que dans la mienne : Pothier, 529. 
 
 D 
 
34 CEETAIlSf SPECIAL SUBJECTS OP SALE. 
 
 comprised in the inheritance at the time when the contract 
 was made, including fruits and accessions which have 
 accrued since the decease of the person to whom he has 
 succeeded : 
 
 in hereditate vendita utrum ea quantitas spectatur, quae 
 fuit mortis tempore, an ea, quae fuit cum aditur hereditas, 
 an ea quae fuit, cum hereditas venumdatur, videndum 
 erit. Et verius est hoe esse servandum, quod actum est : 
 plerumque autem hoc agi videtur, ut quod ex hereditate 
 pervenit in id tempus, quo venditio fit, id videatur 
 venisse ^- 
 
 Consequently (apart from debts or legacies which he 
 may have paid) if the vendor has alienated anything be- 
 longing to the inheritance before the sale, he must allow 
 a proportionate abatement of the purchase money ^, for the 
 words quoted do not mean that he is not answerable for 
 what he has parted with, but that he is answerable for 
 accessions accruing between the time of the death and the 
 time of the sale ^. He must also permit the purchaser to 
 bring all actions which are necessary for the recovery of 
 such portions of the inheritance as he has not yet reduced 
 into possession*. On the other hand, if after selling the 
 inheritance itself, but before conveyance to the purchaser, 
 he sold anything which it comprised to a third party, he 
 was deemed the negotiorum gestor of the first purchaser ^ : 
 and consequently if such thing perished without his fault 
 before conveyance to the third party, so that the latter had 
 no alternative but to pay what he had agreed to give for it, 
 
 ^ Dig. 18. 4. 2. I : PotMer, 530, 534 : Code Civil, Art. 1697. 
 
 ^ Si (le vendeur) avait deja vendu quelq'ues effets de la succession, 
 il est tenu de les rembourser a I'aoquereur : Code Civil, Art. 1697. 
 
 " Haec est sententia legis, in venditionem hereditatis venire non ea 
 tantum, quae fuerunt mortis vel aditionis tempore : sed etiam ea, quae 
 post mortem aut post aditionem accesserunt : Cujaoius. 
 
 * Dig. 18. 4. 2. 4-10 : ib. 3 : ib. 25. 
 
 ^ Dig. 18. 4. 21 : Cod. 4. 39. 6 : Pothier, 531. 
 
CERTAIN SPECIAL SUBJECTS OE SALE. 35 
 
 he received and held the money for the use of the purchaser 
 of the inheritance ^. The sale of the inheritance is deemed 
 to be an assignment from the heir to the purchaser of all 
 the choses in action of the deceased, and the purchaser can 
 sue upon them, including even those which may have been 
 due to the deceased from the heir himself, or from other 
 persons to whom also he may have succeeded^: but in a 
 case of joint inheritance the purchaser of an heir's portion 
 has no right to the portions of co-heirs accruing to his 
 vendor after the sale to him by the latter of his own share 
 in the succession ^. 
 
 In addition to paying the purchase money, the pur- 
 chaser of an inheritance is under an obligation to the 
 vendor to pay the outstanding debts of the deceased, in- 
 cluding those due to the vendor himself*, and to regrant 
 to the latter any servitudes over property of the deceased 
 which might have been extinguished by the confusio re- 
 sulting from the succession. On the same principle, if the 
 vendor, while still having an unsettled claim against the 
 purchaser of the inheritance, became heir to the latter, 
 and sold his estate in turn, he could sue the second pur- 
 chaser on the original claim 5. The purchaser is further 
 under an obligation to the vendor to pay legacies and 
 trusts, including those due to the vendor himself as heir 
 to a legatee or other beneficiary under the will ^ Finally, 
 he must reimburse him all costs which he has incurred in 
 connection with the inheritance '', such as funeral expenses, 
 taxes on land ^ payment of debts ^ or debts for which he 
 remains liable ^*'. 
 
 ' Pothier, 532. ' Dig. 18. 4- 20. pr. : Pothier, 537. 
 s Arg. Dig. 18. 4. 2. I : cf. Dig. 50. 17. 34. Tlie point is very fully 
 discussed by Pothier, 545. 
 
 * Dig. 18. 4. 2. 18 : Pothier, 542. ' Dig. 18. 4. 2. 15. 
 
 « Dig. 18. 4. 24. ' Pothier, 540. 
 
 8 Dig. 18. 4. 2. 16. « Dig. 18. 4. 2. II. 
 ^0 Dig. 18. 4. 2. 10. 
 
 D a 
 
36 CERTAIN SPECIAL SUBJECTS OP SALE. 
 
 When we turn to consider the effects of a contract for 
 the sale of an inheritance from the point of view of third 
 parties who may be debtors or creditors of the estate, it 
 is obvious that, so far as they are concerned, the contract 
 not having made the purchaser heir instead of the vendor, 
 it is res inter alios acta ^. Hence the vendor — at any rate 
 until notice — retains against the debtors of the estate all 
 rights of action which he might have exercised in his own 
 behalf, had he not sold the inheritance, though whatever 
 he recovers by enforcing them he can be compelled to 
 surrender to the purchaser. Similarly, as no one can be 
 required to accept performance of an obligation from any 
 one except the party bound ^, the creditors, legatees, and 
 other persons who could have sued the heir before the sale 
 are not debarred from suing him still, and if they do so, he 
 can only resort to his remedy over against the purchaser : 
 
 quamvis heres institutus hereditatem vendiderit, tamen 
 legata et fideicommissa ab eo peti possunt, et quod eo 
 nomine datum fuerit, venditor ab emptore vel fideiussori- 
 bus eius petere poterit^: 
 
 and even though the purchaser has expressly promised 
 the vendor to pay them, he can, if he pleases, refuse to 
 let them sue him, for with them he has made no con- 
 tract at all*; except where the Treasury is the vendor, 
 for in that case the purchaser alone can be sued^. But 
 every action that can be brought by the heir can be brought 
 (alternatively) by the purchaser under the assignment im- 
 plied in the sale ^ 
 Purchase The last peculiar subject of sale upon which a few ob- 
 
 of a debt, j^. . , , 
 
 or of a servations are necessary is a debt or a right of action, 
 actfon!^ Whether the action was in rem (for the recovery of 
 whether property) or in personam (for the enforcement of an 
 
 m rem or . . . ^ 
 
 inpersonam. ohlig&iioB.) was immateriaF: if it were in personam, the 
 ^ PotHer, 529. 2 ^g Cq^ , ^ 2_ s q^^ g_ ^^_ 2. * Cod. 4. 39. 2. 
 = Cod. 4. 39. I. n Dig. 5. 3. 54. pr. : Cod. 4. 39. 5. ' Cod. 4. 39. 9. 
 
CERTAIN SPECIAL SUBJECTS OF SALE. 37 
 
 obligation might be absolute, conditional, or subject to 
 a time limitation \ and its source, whether contract or 
 private delict, was, speaking generally, a matter of in- 
 difference 2, but the obligation must not be based on purely- 
 personal grounds, as in such cases as an actio injuriarum 
 or a querela inofficiosi testament!. A sale of the documen- 
 tary evidence of a debt is deemed to be a sale of the debt 
 and of the action for its recovery ^. 
 
 The effect of the sale of a right of action is that it Rules re- 
 operates as an assignment^ entitling the assignee to sue assign-" 
 either by direct action in the name of the assignor, or °^'^"*- 
 in his own name by actio utilis: but the law relating 
 to the form and effects of assignment does not belong to 
 a treatise on the law of sale, except so far as such assign- 
 ment for a money consideration is subject to the ordinary 
 principles of that contract. The only points to which it 
 seems at all necessary to call attention are the following. 
 The sale of a right of action carries with it all securities *, 
 whether in the nature of mortgage or charge ^ or of surety- 
 ship ^. The implied warranty by which the vendor is 
 bound extends to the existence of the right of action, but 
 not to the certainty of its being effectively enforced : 
 
 si nomen sit disti'actum,Celsus libro ix Digestorum scribit, 
 locupletem esse debitorem non debere praestare: debi- 
 torem autem esse, praestare, nisi aliud convenit, et 
 quidem sine exceptione quoque ''. 
 
 ' Dig. 18. 4. 17. ^ Dig. 50. 16. II & 12. pr. 
 
 ' Eum qui chirographum legat, debitum legare, non solum tabulas, 
 argumento eat venditio : nam cum ohirographa veneunt, nomen venisse 
 videtur : Dig. 30. 44. 5 ; qui chirographum legat, non tantum de tabu- 
 lis cogitat, sed etiam de actiouibus quarum probatio tabulis continetur : 
 appellatione enim chirograpbi uti nos pro ipsis actionibus palam est, 
 cum, vendilis chirograpbis, intellegimus nomen venisse : Dig. 32. 59. 
 
 * La vente ou cession d'une creance comprend les acoessoires de la 
 creance, tels que caution, privilege et bypotheque : Code Civil, Art. 
 1692. 
 
 5 Dig. 18. 4. 6. " Dig. 18. 4. 23. pr. ' Dig. 18. 4. 4 & 5. 
 
38 CERTAIN SPECIAL SUBJECTS OP SALE. 
 
 Qui nomen quale fuit vendiclit, duntaxat ut sit, non ut 
 exigi etiam aliquid possit, et dolum praestare cogitur ^. 
 
 That is to say, if the right assigned does not belong to 
 the vendor at aH, the ordinary principles apply which 
 regulate the sale of a res aliena^, and the fact that the 
 action can be met by a peremptory exception puts it on 
 a par with an action which does not exist at all^: but in 
 the absence of fraud or express warranty, the vendor is 
 not liable if the person chargeable proves unable to satisfy 
 any judgment which may be recovered. The sale of a 
 debt or right of action is also governed by the ordinary 
 principles as to periculum and commodum rei *, which will 
 be fully set forth in a later chapter. 
 
 ' Dig. 21.2. 74. 3. Celui qui vend une creanoe ou autre droit iiicor- 
 porel doit en garantir I'existence au temps du transport, quoiqu'il soit 
 fait sans garantie. II ne repond de la solvabilite du debiteur que 
 lorsqu'il s'y est engage : Code Civil, Arts. 1693, 1694 : of. Demante, 
 Cours analytique de Code Civil, pp. 194-199 : Pothier, 559-572. 
 
 2 Dig. 18. 4. 8 : Code Civil, Art. 1691. 
 
 ^ Dig. 50. 17. 112. 
 
 * Aotiones autem eas non solum arbitrio, sed etiam periculo tuo tibi 
 praestare debebo, ut omne lucrum ao dispendium te sequatur, Dig. 19. 
 i.3i-pr- 
 
CHAPTEE V. 
 
 HOW THE GONTEACT IS CONCLUDED. 
 
 Necessity of complete agreement between the parties. No forms (such as 
 writing) required for the validity of the contract. Justinian's enactment 
 in Inst. iii. 23. pr. as to writing : it relates to negotiations, not to a sale 
 definitely agreed upon. Contracts made by correspondence, and through 
 agents. Arra or earnest. 
 
 It is not necessary to say much of the mode in which Necessity 
 the contract of sale was concluded, for the law left thepjete"^' 
 parties to make it as they pleased. All that it required ^g^^f™<j"' 
 was that they should be agreed upon the thing to be the par- 
 bought and the price to be paid, and that each should be 
 aware of that agreement ^- In fact, however, they must be 
 agreed not only on the essential points of the bargain 
 (merx and pretium), but on all its subsidiary or ancil- 
 lary terms as well, in this sense, that if the negotiations 
 have dealt with such terms, and any of them are still un- 
 settled, or have been reserved for further consideration, the 
 
 ' Trois choses sont necessaires pour le Contrat de Vente : une chose 
 qui en soit robjet, un prix convenu, et le oonsentement des contraotans : 
 Pothier, 3 ; (la vente) est parfaite entre les parties .... des qu'on 
 est convenu de la chose et du prix, quoique la chose n'ait pas encore 
 livree ni le prix paye : Code Civil, Art. 1583. 'Written evidence of the 
 consent is required in Scotland to complete the contract of sale of 
 land, of copyright, of ships, and of goods bonded for duties in the ware- 
 house of the importer. But the sale of goods and merchandise in 
 general is effectually proved by evidence prout de iure ; parole, 
 written, or confession. When the bargain is made by the principals 
 without writing, the evidence of two witnesses, or one corroborated 
 by circumstances, is necessary : or the letters of the parties, holograph, 
 or signed by them, are good proof : Bell, § 89. 
 
40 HOW THE CONTliACT IS CONCLUDED. 
 
 presumption is that they did not intend as yet to be bound 
 
 at all : 
 
 in venditionibus et emptionibus consensum debere inter- 
 cedere palam est: ceteruin sive in ipsa emptione dis- 
 sentiant, sive in pretio, sive in quo alio, emptio imper- 
 fecta est ^. 
 
 Similarly, if the intention was that the perfection of the 
 contract should depend on the fulfilment of a suspensive 
 condition, there is no obligation until it is fulfilled : 
 
 si id quod venierit appareat quid quale quantum sit, sit 
 et pretium, et pure venit, perfecta est emptio : quod si 
 sub conditione res venierit, si quidera defecerit conditio, 
 nulla est emptio ^. 
 
 No forms It is Certain that until the time of Justinian no form, 
 for the written or otherwise, was prescribed as the necessary con- 
 yahdity of^^|.JQ^ q£ either the validity or the enforceability of the 
 
 the eon- •> •' 
 
 tract. contract, whether its subject matter might be moveable or 
 immoveable, corporeal or incorporeal, valuable or worthless. 
 But according to what may perhaps be considered the 
 accepted interpretation of an enactment of that Emperor ^, 
 if the parties agreed, as part of their contractj that it 
 
 ^ Dig. i8. I. 9. pr. Le contrat de vente peut se faire entre presents, 
 verbalement et sans ecrit : il faut neanmoins "bien prendre garde, si ce 
 que les parties ont dit exprime une vente ou un simple pourparler de 
 vente, qui n'oblige point, et laisse la liberie de changer de volonte : 
 Pothier, 33. 
 
 ^Dig. 18.6. 8. pr. 
 
 ' Sed iaeo quidem de emptionibus et venditionibus quae sine soriptura 
 oonsistuut obtinere oportet, nam nihil a nobis in huiusmodi venditioni- 
 bus innovatum est. In iis autem quae scriptura conficiuntur, non atiter 
 perfeotam esse venditionem et emptionem constituimus, nisi et in- 
 strumenta emptionis fuerint conscripta, vel manu propria oontrahen- 
 tium, vel ab alio quidem scripta, a contrahentibus autem subsoripta, 
 et si per tabelliones fiant, nisi et completiones acceperiut, et fuerint 
 a partibus absoluta : doneo enim aliquid ex his deest, et poenitentiae 
 locus est, et potest emptor vel venditor sine poena recedere ab emptione : 
 Inst. iii. 23. pr. 
 
HOW THE CONTRACT IS CONCLUDED. 4 1 
 
 should be reduced into writing, it was to bind neither until 
 the condition had been fulfilled, and the writing had been 
 signed by both. It is generally held that it was necessary Justini- 
 for them to agree that its vahdity should depend on its f^e^t °^'''" 
 expression in a written formi, and where that was the case^"^'- "^v 
 
 23 pr. as to 
 
 either vendor or purchaser might go back from the agree- writing : 
 ment until it had been signed by both, but if it was the 
 purchaser, he forfeited anything which he might have 
 given by way of earnest: if it was the vendor, he had 
 to give it back, aad its value in money as well ^. Where 
 the parties did nothing more than agree that a contract 
 in fact made between them by word of mouth should 
 be put into a written form, the writing was merely evi- 
 dentiary 2. 
 
 But although this interpretation of the passage in the it relates 
 Institutes, which assumes the existence of a complete tions^" '*' 
 agreement between the parties, is the most simple and 
 
 ^ _ The Code Civil enacts tliat the sale ' peut etre faite par acte 
 authentique ou sous seing prive ; ' and Demante (Cours analytique de 
 Code Civil, p. 4) says, ' il est certain que, dans ce cas, la perfection 
 de la vente depend de celle de Facte, et, par consequent, de I'emploi 
 de la forme particuliere, soit authentique, soit privee, a laquelle la 
 volonte des parties aurait, de fait, assujetti cet acte .... La vente 
 en pareil cas n'est pas parfaite, le consentement n'est pas donne, 
 les parties peuvent se dedire, en un mot rien n'est fait. II n'y a pas 
 meme un contrat conditionnel : oeoi est important a remarquer, car si 
 la redaction de I'ecrit etait consideree comme une condition suspensive 
 de la vente, lorsqu'elle serait realisee elle aurait un effect retroactif.' 
 It is interesting to find an English case very much in point. In The 
 Governor, Guardians, &^e., of the Poor of Kingston-upon-HuU v. Fetch (10 
 Ex. 610, 24 L. J. Ex. 23) the plaintiffs advertised for tenders to supply 
 meat, stating ' all contractors will have to sign a written contract after 
 acceptance of tender.' The defendant tendered, and received notice 
 of the acceptance of his tender, and then wrote that he declined the 
 contract. It was held that, by the terms of the proposal, the contract 
 was not complete till the terms were put in writing, and signed by the 
 parties, and that the defendant had the right to retract. 
 
 2 Cod. 4. 21. 17. 
 
 ' See Dig. 22. 4. 4 : Treitschke, Kaufcontraet, p. 19, note. 
 
42 HOW THE CONTRACT IS CONCLUDED. 
 
 obvious, it fails in leaving Justinian's enactment isolated, 
 apparently motiveless, and unconnected with anything, so 
 far as we know, which had preceded it in the history of 
 the law. A comparison with the terms of his constitution 
 in the Code^, which beyond doubt relates to the same point 
 as the text of the smaller work, strongly suggests that he 
 had not in his mind a complete contract to buy and sell, 
 but preliminary negotiations undertaken with a view to 
 such a contract. As early as the time of Diocletian and 
 Maximian we read of ' pacta arralia ' in relation to sales ^, 
 and we hear of them also in connection with other con- 
 tracts. A pactum arrale is the giving of something by 
 way of earnest by one person to another, between whom 
 there have been pourparlers with a view to some contract, 
 coupled with an agreement that if the contract shall actu- 
 ally be concluded, or shall fail to be concluded only by 
 reason of the fault of the receiver, it shall be returned, 
 either simply or with its value in addition. That such 
 agreements often related to very important transactions is 
 shown by the passage in the Code, which proves that they 
 themselves were sometimes executed in writing ^ : for it 
 can hardly be doubted that the passage contemplates not 
 an actual sale, but negotiations preceding a sale which 
 may subsequently be made ('emptio facienda')*, and the 
 
 ' Illud etiam adicientes, ut et in posterum, si quae arrae super faci- 
 enda emptione ouiuscunque rei datae sunt sive in scriptis sive sine 
 soriptis, licet non sit specialiter adiectum, quid super isdem arris non 
 prooedente contractu fieri oporteat, tamen et qui vendere pollicitus est 
 venditionem recusans in dupluni eas reddere cogatur, et qui emere 
 pactus est, ab emptione recedens datis a se arris cadat, repetitione 
 earum deneganda : Cod. 4. 21. 17. 2. 
 
 ' Cod. 4. 49. 3 : A. u. 290. 
 
 ' The words ' siw3 in scriptis sive sine scriptis ' clearly belong to 
 ' arrae datae sunt,' not to ' super facienda emptione.' 
 
 * The later expressions in the enactment, which seem to imply an 
 actual agreement— vendere recusans — ab emptione recedens — are used 
 loosely, just as we speak of backing out of a bargain to which we have 
 not yet actually committed ourselves. 
 
HOW THE CONTRACT IS CONCLUDED. 43 
 
 only difficulty in reconciling the passage of the Institutes 
 with this hypothesis is the occurrence in it of the ex- 
 pression venditio celebrata, which must be taken to mean 
 ' celebranda ^.' According to this view, the arra spoken of 
 is not given as evidence that a contract has been concluded 
 (of which we shall speak later in this chapter) : it is the 
 so-called 'arra contractu impei-fecto data,' and the case 
 contemplated is where there are negotiations pending for 
 a sale: the intending purchaser gives earnest, and it is 
 agreed that the contract, if it comes off, shall be reduced to 
 writing and signed by the parties. Justinian then gave not to a 
 no new right to either party of withdrawing from a con- teiyagrc'r'a 
 tract, for in the case supposed there is merely a refusal to '^P""- 
 complete a bargain which so far has not advanced beyond 
 the stage of pourparlers. AH that was new in his enact- 
 ment was that if aiTa had been given by the would-be 
 purchaser in the course of such pourparlers, and he backed 
 out of them, he should forfeit it, while, if it was the intend- 
 ing vendor, he should have to return it and its value 
 besides, whether there had been an agreement to that effect 
 or not. Previously this had been so only when expressly 
 so agi-eed^. 
 
 ^ So Schrader, ad Inst. loc. cit. It is rendered in the present tense— 
 ■yc'irrai — by TheopMlus. The same view is taten by Potbier, 507. 
 
 The passage in the Code is so understood by Potbier : ces arrbes 
 qui se donnent lors d'un marcbe seulement propose, et avant qu'il ait 
 ete conclu, fonnent la matiere d'un contrat particuKer, par lequel celui 
 qui me donne des arrhes consent de les perdre, et de m'en transferer 
 la propriete en cas de refus de sa part de conclure le marcbe propose, 
 et je m'obKge de mon cote a les rendre au double en cas de pareil refus 
 de ma part : 497. The doctrine seems in eifect to be reproduced in 
 the Code Civil, Art. 1590: Si la promesse de vendre a ete faite avec 
 des arrbes, chacun des contractans est maitre de s'en departir : celui 
 qm les a donnees, en lea perdant, et celui qui les a refues. en restituant 
 le double. This is thus explained by Demante, Cours analytique de Code 
 Civil, p. 25 : 'on entend par arrhes un certain objet que I'une des parties 
 remet a I'autre au moment de la convention, soit en signe que le 
 marcbe est conclu, soit comme d^dit. [In the latter case] les parties 
 out voulu reser\er a chacune d'elles le droit de se retracter, de retirer 
 
44 HOW THE CONTRACT IS CONCLUDED. 
 
 Mode of The modes in which the agreement is expressed, or the 
 agree- evidences of the fact of agreement, are of course manifold, 
 ment. Paulus says that the contract might be concluded not only 
 by word of mouth, as may be supposed to have been most 
 commonly the case with the Romans, but ' inter absentes 
 per nuntium et per litteras^'. Where the parties are nego- 
 tiating persona] ly and by word of mouth, the contract is 
 binding on both as soon as each is aware that the other 
 is at one with him on the essentials, and on such non- 
 essentials as have been the subject of discussion. But 
 assent may be expressed by conduct no less than by words. 
 Nothing is more common than for a contract of sale to be 
 concluded by performance on one side in reply, rather than 
 by an explicit expression of assent, to the proposal made 
 by the other. For instance, a bookseller exposes a book 
 in his window, marked ' five shillings ' : I put the money' 
 down on the counter and demand the book : or I write and 
 ask a wine merchant to send me a dozen of claret of a 
 particular vintage at forty-eight shillings per dozen, and he 
 sends them. In either case, and in all such cases, the act 
 is the evidence of assent to a proposal, or of acceptance of 
 an offer, made by the other party ^- 
 
 sa promesse, de se dMire, mais elles ont subordonne cette faculte a la 
 necessite de donner a I'autre une certaine indemnite dont le chii&e est 
 fixe par la valeur des arrhes remises. Celui qui a donne les arrlies les 
 perd, les abandonne, s'il renonce au contrat : celui qui les a re9ues, 
 les rend au double, rend les arrhes, plus une valeur egale a celle qu'il 
 a re^ue, car s'il ne rendait que les arrlies refues, il ne perdrait rien, 
 il ne donnerait a celui qui les a fournies aucune indemnite, et la faculte 
 de se dedire ne serait pas subordonnee a des conditions etabHssant 
 
 I'egalite entre les deux parties La presomption etablie par le 
 
 Code est que la convention d'arrhes est une convention de dedit.' 
 
 ^ Dig. i8. I. I. 2. 
 
 ^ Quidam ex parte dimidia teres institutus universa praedia vendidit, 
 et coheredes pretium acceperunt : evictis his quaere, an coberedes 
 ex empto actione teneantur. Respondi, si coheredes praesentes adfue- 
 runt nee dissenserunt, videri unum quemque partem suam vendidisse : 
 Dig. 21. 2. 12. See Blackstone's Comm. Bk. ii. ch. 30. p. 443. In 
 Bfogden v. Metropolitan Ry. Co. (2 App. Ca. 666) the parties had acted 
 
HOW THE CONTEACT IS CONCLUDED. 45 
 
 There is very little textual authority on the question, at Contracts 
 ■what time a contract of sale is to be deemed to be irrevo- ™rre- ^ 
 cably concluded, when the communications between the ^P"'"^''''*"'' 
 parties are carried on by messenger or letter, and the texts 
 which have any bearing on the point are in fact so incon- 
 clusive that the holders of every modern theory on the 
 subject claim to find support in them for their own doctrine. 
 It may indeed be called the happy hunting-ground of 
 theorising Romanists. 
 
 It must first be made clear that an actual proposal for a 
 purchase or a sale has been sent : that is to say, the sender 
 of the letter or messenger must have expressed a clear 
 intention and readiness to make the contract in question ^. 
 The Eoman texts most distinctly support the theory that 
 such a proposal is converted into a contract by the commu- 
 nication of an acceptance to the proposer — communication 
 implying knowledge by him that his offer has been 
 accepted^. There can be no consensual contract unless 
 and until both of the parties are aware of their agreement ^. 
 
 upon the terms of a draft proposed agreement, wtich was intended to 
 form the basis of a formal contract, to be afterwards executed by them 
 both. Of. HaH v. Mills, 15 M. & W. 85. 
 
 ' E. g. Will you sell me your horse for £50 ? is not an offer to buy 
 him for that sum. It is otherwise if one writes ' I understand you are 
 willing to sell me your horse for £50, and if that is so I am ready to 
 buy him.' 
 
 ^ This 'Vemehmungstheorie,' as it is called, is held by Hasse, 
 Eheiu. Museum, ii. p. 371 sq. : Regelsberger, Civilrechtliche Erorte- 
 rungen, p. 23 : Bekker, Jahrbuch des gem. Rechts, iii. pp. 116 sq., 295 
 sq. : Vangerow, Pandekten, § 603^ note i : Brinz, Pandekten, § 362 : 
 Wachter, Pandekten, ii. § 185, p. 357. It is possible that an exception 
 to it must be allowed outside the sphere of consensual contract. If a 
 proposal is for the exclusive benefit of the person to whom it is ad- 
 dressed, it is generally held that knowledge by the proposer of its 
 acceptance may be dispensed with : Dig. 39. 5. 10 : ib. 26. 
 
 " E. g. where the proposer does not understand the language of 
 the other party, Inst. iii. 15. I, or is deaf and does nothearit, Dig. 44. 
 7. I. 15 : 45. I. I. pr. : the understanding, the 'being aware,' is stated 
 as essential in Dig. 44. 7. 48. ' Je me trouve en presence d'un sourd, qui 
 
46 HOW THE CONTEACT IS CONCLUDED. 
 
 The objection that on this hj'pothesis it would be necessary 
 for the sender of the acceptance to hear that it had reached 
 the proposer, and so on ad infinitum, so that no contract 
 could ever be made by correspondence, falls to the ground 
 if it be remembered that both offers and acceptances hold 
 good until withdrawn (by communication) as against those 
 to whom they are addressed, and that consequently if no 
 revocation has reached either party before the moment at 
 which the proposer becomes aware of acceptance, both at 
 that moment know that they are agreed, and the contract 
 is concluded^. 
 
 The proposer may revoke his proposal, and the acceptor 
 may revoke his acceptance, provided that knowledge of 
 such revocation reaches the other party not later than the 
 moment at which the proposer is notified of acceptance ^. 
 
 me dit : voulez-vous m'aclieter telle chose, moyennant tel prix ? Je 
 lui reponds, je le veux bien : mais il ne m'entend pas, il me declare 
 ne m'avoir pas entendu, et il me prie de lui mettre par ecrit la 
 reponse qu'il juge d'apres le mouvement de mes levres lui avoir ete 
 faite par moi. Alors je prends une plume, et je lui trace ces mots : 
 je vous ai dit, que je voulais bien, mais, toutes reflexions faites, votre 
 proposition ne me convient pas. Get bomme pourra-t-il pretendre, 
 que par la reponse, que je conviens lui avoir faite de vive voix, je me 
 suis lie irrevocablement envers lui ? Non, certainement : et s'il me 
 poursuit, le juge le deboutera sans besiter : ' Merlin, Repertoire, s. m. 
 Vente, xiv. p. 308. 
 
 ' Tbe objection was made, and answered in exactly tbe same way 
 for the first time in England in 1818 : Adams v. Lindsell, i B. & Aid. 
 681. 
 
 ^ Arg. Dig. 17. I. IS : 17. 2. 17. I : 14. 6. 12. The passage in Dig. 
 40. 2. 4. pr., which is so often cited in support of tbe theory that a 
 revocation is good without being communicated, has no relation to 
 contracts giving rise to bilateral obligation. In English Law, if the 
 person to whom the offer is made is authorised, either expressly or by 
 implication, to send a reply by post, the posting of a letter of accept- 
 ance concludes the contract, whether it ever reaches the proposer or 
 not : Household Fire Insurance Co. v. Grant, 4 Ex. D. 216. C. A. : the 
 revocation of a proposal is ineffectual unless it becomes known to 
 the person to whom that proposal was made before he has accepted it : 
 Byrne v. Van Tienhoven, 5 C. P. D. 344 : and there can be little doubt 
 that if a letter of acceptance is once posted, it cannot be revoked, 
 
HOW THE CONTRACT IS CONCLUDED. 47 
 
 Nevertheless, if a paity to whom an offer has been made, 
 and who beheves that he has by acceptance converted it 
 into a contract, loses an opportunity of profit, or so acts as 
 eventually to incur a loss in that belief, and the offer is 
 revoked as against him before his acceptance becomes 
 known to the proposer, the latter is bound to indemnify 
 him'. 
 
 A promise to keep an offer open for a certain time is 
 binding, and it cannot be revoked before that time has 
 elapsed ^ : and a promise not to withdraw an offer is 
 implied if the person to whom it is made is authorised in 
 the event of his acceptance to proceed at once to execution 
 of the contract, as where one writes offering to buy goods 
 at a certain price, and directs the other, if he accepts the 
 offer, to send them to a named third person ^. 
 
 even by a telegram arriving before it, for no contract can be dissolved 
 by tie act of one of the parties only : Benjamin, p. 57. 
 
 ^ He must indemnify bim for tbe loss of any profit wbicb be would 
 bave made, or for any damage wbicb be would not bave suffered, had 
 he not been led to believe that the contract would be actually concluded. 
 E. g. a purchaser, in view of the expected contract, omits to provide 
 himself with goods from elsewhere : or a vendor misses the opportu- 
 nity of disposing of bis goods on favourable terms. See the illustra- 
 tion in Pothier, 32, cited and criticised by Benjamin, p. "]•]. 
 
 ^ In English Law of course it is otherwise unless the promise is 
 made either under seal, or for valuable consideration : Cooke v. Oxley, 
 3 T. R. 653. 
 
 ^ Arg. Dig. 17. I. 27. pr. ; ib. 16. 
 
 Other views as to the Civil Law upon contracts made by correspon- 
 dence are : that the contract is concluded by some act clearly 
 indicating intention to accept tbe offer, such as writing a letter of 
 acceptance : that (in addition) despatch of the letter is essential : that 
 it must not only be despatched, but reach tbe proposer, though it is 
 not necessary that be should have made himself acquainted with its 
 contents ; and some of those who bold the contract to be concluded 
 by despatch of a letter of acceptance still think that the acceptance 
 can be revoked by another letter or telegram which reaches tbe pro- 
 poser not later than the letter of acceptance itself (of the Scotch case 
 of Diinmore v. Alexander, 9 Shaw & Dunlop, 1 90). Finally, Windscbeid 
 (Lebrbucb, § 306, note 10) holds that the proposer is bound as soon as 
 
48 
 
 HOW THE CONTRACT IS CONCLtTDBD. 
 
 and 
 
 through 
 agents. 
 
 Arra or 
 earnest. 
 
 It is not necessary to consider at any length the question 
 of contracts of sale made through agents. It is well known 
 that according to the Civil Law the contract was properly 
 the contract of the agent, not of the principal. It was his 
 will by which it was concluded, and therefore the rights 
 and duties arising from it affected him alone. The principal 
 could acquire rights against the other party only by an 
 assignment (on which he could of course insist) from his 
 own agent : and although under the later law he was 
 suable by the other party, it was not by actio ex empto 
 or ex vendito, but only by actions specially designed by 
 the Praetor to meet cases of agency, and so to obviate as 
 much as possible the difficulty of double litigation. 
 
 There is one kind of evidence of final agreement to which 
 the Romans attached much importance, viz. the giving of 
 earnest (arra) by one or other of the parties, most usually 
 by the purchaser^- This indeed seems to have been so 
 common that the language of Gains ^ and Justinian^ almost 
 warrants one in believing that there was a vulgar opinion 
 to the effect that arra was an essential condition of the 
 contract, without which it was not binding on the parties : 
 a heresy repudiated by Gaius in the Digest *- Unless given 
 in part payment of the purchase money, the arra had to be 
 
 his proposal is accepted, the acceptor, as soon as his acceptance is 
 known to the proposer. These different theories are clearly set forth 
 in Vering. Geschichte und Pandekten des romischen und heutigen 
 gemeinen Privatrechts, § 190, and Arndts, Pandekten, § 231, note 
 1(d). 
 
 ■^ Arra oonfirmatoria as distinct from arra contractu imperfecto data. 
 High evidentiaiy value is attached to the giving of earnest in the 17th 
 section of the Statute of Frauds (29 Car. II. c. 3), under which it ranks, 
 in the alternative, with writing, payment of part of the purchase 
 money, or acceptance and receipt of part of the goods, as a condition 
 precedent to the enforceability of the contract : examples in Bach v. 
 Otven, 5 T. R. 409, and Goodall v. Skelton, 2 H. Bl. 316. 
 
 m. 139. 
 
 Inst. iii. 23. pr. 
 
 * Dig. 18. I. 35. pr. Among the things most commonly given ' arrae 
 nomine' was a ring : Dig. 19. i. 11. 6 : 14. 3. 5. 15. 
 
HOW THE CONTRACT IS CONCLUDED. 49 
 
 restored when the contract had been executed 1, or if its 
 execution was prevented by accident, or if the parties 
 agreed to be off their bargain. 
 
 According to the interpretation of the passage in the 
 Institutes which has been followed in the earlier part of 
 this chapter 2, no change was made by Justinian in the 
 law relating to arra of this kind. Those however who 
 understand that passage to relate to an actually completed 
 contract, rather than to preliminary negotiations accom- 
 panied by the giving of earnest, contend that that Emperor 
 enacted that in every actual sale in which earnest (arra 
 confirmatoria) was given, a party who refused to execute 
 should be liable (in addition to the ordinary action for 
 damages) to forfeiture of the arra, or of double its value, 
 according as he had given or received it. It is even thought 
 by some writers that the effect of his law was to entitle 
 either party to a sale in every case to rescind the contract 
 on these terms, without being liable to an' action for breach 
 at all ^ : but there is no evidence for this opinion *, which 
 seems to be entirely erroneous •'. 
 
 ' Dig. 19. I. II. 6 : 14. 3. 5. 15 : PotMer, 506. 
 
 ^ P. 42 supr. 
 
 ^ La Loi, diaent cea Auteura, ayant fixe lea dommages et intereta 
 resultana de I'inexecution de I'obligation de I'aolieteur, a la parte des 
 arrhea du c6te de I'aclieteur, et a la restitution des arrhes au double du 
 cote du vendeur, lea partiea ne peuvent pas en pretendre d'autres. En 
 donnant et recevant lea arrhes, elles doivent etre cenaees s'etre con- 
 tentees de cette espeoe de dommages et intereta, et avoir renonce a 
 tous autres, meme a toutes autres actions qu'ellea pourroient avoir 
 I'une contre I'autre pour I'inexecution du contrat : Pothier, 507. 
 
 * II seroit absurde que lea arrhea etant dana ce cas intervenuea pour 
 la confirmation du contrat, pour le rendre plus certain et plua oonnu, 
 on voulut leur dormer I'efi'et de detruire le contrat en detruisant les 
 obligations qui en naissent, et les droits et actions qui en resultent : 
 Potliier, ibid. Eine sogenannte arra poenitentialis beim Kauf iat dem 
 romischen und gemeinen Recbt unbekannt : Bechmann, Kauf, § 232. 
 
 ^ The error is shared by Benjamin, p. 177. 
 
CHAPTEE YI. 
 
 MISTAKE. FRAUD. DUEESS. 
 
 General principles. Mistake as to the nature of tlie transaction ; as 
 to the subject-matter of the contract : identity : existence ; quantity : 
 quality. Mistake as to the price. Mistake of motive. Mistake as to the 
 identity of the other part}'. Dolus or fraud : what it includes : active 
 concealment : reckless ignorance as to truth of representations : innocent 
 non-disclosure. Effect of these on the validity of the contract. Metus 
 or duress, and its effects. Metus has a "wider operation than Dolus. 
 
 General A TKANSACTION which presents all the external indicia of 
 
 a valid contract may be void or voidable : (i) because the 
 consent of the parties or of one of them has been given in 
 ignorance of circumstances which, had they been known, 
 would have prevented the contract from being made at all, 
 or at any rate from having been made in the form in which 
 in fact it has ; or (a) because the consent of one party has 
 been obtained by misrepresentations made, or violence used, 
 or improper pressure exercised, by the other party. We 
 have here to consider the effect on a contract of sale of 
 those vitiating circumstances usually denoted by the terms 
 Mistake, Fraud, and Duress ^. 
 
 As to mistake, three preliminary observations must be 
 made. Firstly, we are speaking here of mistake or mis- 
 conception not brought about by any wilfully false 
 representations (or their equivalent) made by the other 
 party to the contract. For where that is the case, one can 
 regard either the mistake or the fraud: and inasmuch as 
 
 ' They are coupled together in the Code Civil, Art. 1109 : il n'y a 
 point de consentement valable, si le consentement n'a ete donne que 
 par erreur, ou s"il a ete extorque par violence ou surpris par dol. 
 
MISTAKE. PEAUD. DURESS. 51 
 
 where there has been dishonesty, it is only reasonable that 
 the guilty party should be made to suffer, the law as a rule 
 does not compel the one deceived to rely upon the mistake, 
 but allows him the option of either adopting the contract 
 or rescinding it on the ground of the fraud which has been 
 practised on him, because cases may occur in which it will 
 be to his interest that the contract should be upheld. In 
 the second place, we must distinguish between error which 
 humanly speaking is unavoidable, and error which might 
 have been avoided if the party labouring under it had 
 taken reasonable care, or made reasonable enquiries: for 
 while the former is in many cases a reason for holding the 
 contract entirely void, the latter does not in any way 
 relieve the negligent party from his liabilities except 
 where the other was aware of his mistake, and could easily 
 have corrected it^ Thirdly, it is not all mistake which 
 affects the validity of a contract, although there are loosely 
 worded dicta in the authorities^ which might seem to 
 warrant such a proposition. The following pages will 
 make it clear that mistake, as such, has no effect except 
 where it is of such a kind as presumably to exclude the 
 hypothesis of real consent". Such mistake is termed 
 essential or fundamental : non-essential mistake is usually 
 termed by writers on the Civil Law error concomitans. 
 
 Mistake may relate to the nature of the transaction : to 
 the subject-matter of the agreement, more particularly to 
 its identity, existence, quantity, or qualities : to the amount 
 of the purchase money: to the motives by which one is 
 
 ^ Dig. 18. I. 15. I. The rule that error attributable to one's own 
 negligence is no excuse is there stated only in reference to the pur- 
 chaser : but the reasons for it in his case are even stronger in the case 
 of the vendor. 
 
 ^ Dig. 2. I. 15 : 5. 1. 2 : 39. 3.20 : 50. 17. 116. 2 : Cod. 1. 18. 8 and 9, 
 ^ L'erreur n'est une cause de nullite de la convention que lors- 
 qu'elle tombe sur la substance meme de la chose qui en est I'object : 
 Code Civil, Art. mo. 
 
 E a 
 
52 MISTAKE. fEAUD. DURESS. 
 
 induced to enter into the contract: and to the person of 
 
 the other party. 
 Mistake (i) If the parties are entirely mistaken as to the nature 
 
 nature rf of the transaction, the one thinking of and meaning a sale, 
 the trans- f^^ other thinkinff of and meaning some other sort of 
 
 action : . 
 
 contract, it is absolutely void ' 
 as to the (3) Mistake as to the subject-matter of the contract, 
 matter of («) Identity (error in corpora). If the two parties are 
 the con- thinking of entirely different objects, the contract is void ^, 
 
 trftct ■ its o •' *' 
 
 identity: and no property passes by a conveyance made by either, 
 nor even such possession as can be converted into ownership 
 by usucapion ^. A mistake as to species, when the terms 
 of the contract refer to a thing only generically (as where 
 e.g. A agrees to buy a hundred sacks of corn, meaning 
 wheat, while B intends to sell him barley), is deemed to be 
 an error in corpore. If there is no doubt or confusion as 
 to the main object of the contract, but there is a mistake 
 as to the identity of an accessory, though it is certain that 
 both intended some accession or other, the contract stands, 
 and that accession must be delivered and taken which was 
 intended by the vendor *. It is hardly necessary to observe 
 
 ^ Si in ipsa emptione dissentient .... emptio imperfecta est : Dig. 
 18. I. 9. pr. : cf. Dig. 12. I. 18 : 44. 7. 3. I. ib. 57. E. g. A wishes to 
 buy a horse of B'a for the hunting season. B says he does not care to 
 sell the horse, but will let him for the season for £50. After some 
 negotiations it is agreed that A shall havathe horse for that sum : A 
 believes he has bought him : B has only intended to let him : cf. 
 Pothier, 37. 
 
 ' Si igitur ego me fundum emere putarem Cornelianum, tu mihi te 
 vendere Sempronianum putasti, quia in corpore dissensimus, emptio 
 nulla est : Dig. 18. i. 9. pr. The English law is the same : TJiornton 
 V. Kempster, 5 Taunt. 786 : Raff.es v. Wichelkaus, 2 H. & C. 906. 
 
 ° Dig. 41. 2. 34. pr. : 41. 4. 2. 6. 
 
 ■* Si in emptione fundi dictum sit aocedere Stichum servum, neqiie 
 intellegatur quis ex pluribus accesserit, cum de alio emptor, de alio 
 venditor senserit, nihilominus fundi venditionem valere constat : sed 
 Labeo ait eum Stichum deberi quern venditor intellexerit. Neo refert, 
 quanti sit aocessio, sive plus in ea sit quam in ipsa re cui accedat an 
 minus : plerasque enim res aliquando propter accessiones emimus, 
 
MISTAKE. FRAUD. DTJEESS. 53 
 
 that if the disagreement relates merely to the name of the 
 thing sold, the mistake is immaterial ^ 
 
 (6) Existence. The case in which the parties contract its exist- 
 for the purchase and sale of a specific article which, un- 
 known to both, has ceased to exist, either wholly or in part, 
 at the time at which the contract was made, has already 
 been discussed in a previous chapter ^, where the nullity of 
 the agreement was put upon a different ground. The 
 validity of the contract however is not affected if the object 
 of it ceases to exist only after it is entered into, for there is 
 no mistake whatever : the risk is with the purchaser, and he 
 has to bear the loss, for he might have protected himself by 
 some such stipulation as that, in the event of the object being 
 destroyed before conveyance, the bargain should be off ^■ 
 
 A thing which the law says cannot be the subject of a 
 contract of sale may, for that purpose, be deemed non- 
 existent. But in respect of free men and things which are 
 extra commercium the contract is saved from absolute 
 nullity by ignorance of the parties, or of the purchaser 
 only, as to the legal character of the object which they are 
 
 siouti cum domus propter marmora et statuas et tabulas pictas ematur ; 
 Dig. 18. I. 34. pr. Many authorities, however, are of opinion that for 
 ' venditor ' we should read ' emptor,' e. g. Treitschke, Kaufoontract, p. 
 73, note 2 : contra Vangerow, § 604, note. 
 
 ' Plane si in nomine dissentiamus, verum de corpore constet, nulla 
 dubitatio est quin valeat emptio et venditiu : nihil enim facit error 
 nominis, cum de corpore constat: Dig. 18. I. 9. I : of. Dig. 5. i. 80: 
 
 45- I- 32. 
 
 ^ P. 21 supr. 
 
 ' The English rule is the same. ' Where a contract of sale is made, 
 amounting to a bargain and sale, transferring presently the property 
 in specific chattels, which are to be delivered by the vendor at a future 
 day, there, if the chattels without the fault of the vendor perish in the 
 interval, the purchaser must pay the price, and the vendor is excused 
 from performing his contract to deliver, which has thus become im- 
 possible. That this is the rule of English law is established by the 
 case of Eugg v. Minet {11 East. 210) : ' per Blackburn, J. in Taylor v. 
 Caldwell, 3 B. & S. 826 : 32 L. J. Q. B. 164 : cf. Howell v. Cotipland, L.R. 
 9Q.B. 462: I Q.B.D. 258. C. A. 
 
54 MISTAKE. FEAUD. DURESS. 
 
 attempting to buy and sell. Where, for instance, both are 
 unaware that a supposed slave is in fact free, the better 
 opinion was that the contract was good^, at any rate so far 
 as to entitle the purchaser to damages in the event of the 
 man's freedom being established ^ : a fortiori if the vendor 
 knew that he was a slave, and the purchaser did not^. 
 That the law was the same in respect of res sacrae, 
 religiosae and publicae, is shown by another passage *, in 
 which it is said that a person who sold such things to an 
 ignorant purchaser was liable to him ex empto for such 
 damages as he had sustained, 
 its quau- (c) If the parties are thinking of different quantities, and 
 the vendor intends to sell a less quantity for the stipulated 
 price than the purchaser thinks he is buying, the contract 
 is void : in the converse case it holds good for the smaller 
 of the two quantities ^ There may also be a mistake as to 
 quantity in the performance of the contract. The vendor 
 may erroneously deliver more than he was bound to, in 
 which case he can recover the excess by condictio indebiti ^ 
 Or a man may buy a thing as a whole, the price to be paid 
 depending on the number of its constituent parts : if its 
 bulk has been stated erroneously, but in good faith, by the 
 vendor, restitution must be made of the excess, if possible : 
 if impossible or highly inconvenient, the vendor must put 
 up with an increase in the purchase money proportionate to 
 that excess, while if it is less than was stated, the purchase 
 money will be abated '. But if a man buys a thing as a 
 whole, and the price is to be paid for it as a whole, a 
 mistake of either party as to its bulk or extent is im- 
 
 ^ Dig. 1 8. I. 70. ^ Dig. 21. 2. 39. 3. 
 
 ' Dig. 18. I. 70 : Inst. iii. 23. 5. * Dig. 18. i. 62. i. 
 
 '' Arg. Dig. 19. 2. 52 : si decern tibi looem fundum, tu autem existi- 
 mas quinque te conduoere, nihil agfitur. Sed et si ego minoris me 
 locare sensero, tu pluris te conduoere, utique non pluris erit conductio 
 quam quanti ego putavi. 
 
 '^ Dig. 12. 6. 26. 4-6. ' Dig. 18. I. 40. 2. 
 
MISTAKE. FEAUD. DURESS. 55 
 
 material, though of course if the vendor has represented its 
 bulk as greater than it really is, he fails to perform his con- 
 tract by delivering less ^- If he has understated its quantity, 
 he cannot recover the excess : and if a third person estab- 
 lishes a superior title to a portion of the thing sold, the 
 vendor is liable to the purchaser on account of the eviction, 
 even though the part which the latter still has is not less 
 than what he stated the amount of the whole thing to be ^- 
 
 (d) Material, qualities or properties. If through a mistake its 
 for which he cannot be held to blame a man agrees to buy qualities' 
 a thing which is of a different material, or which possesses °^ P!"°" 
 
 ° _ , -^ perties. 
 
 different qualities or properties from what he supposed, the 
 mistake is deemed fundamental, and nullifies the contract, 
 only if, according to ordinary commercial usage in relation 
 to the article in question, the absence of the quality or 
 material wrongly supposed to exist places that article in a 
 different category from those which really possess it^. 
 There are numerous illustrations of this principle in the 
 authorities. Thus, for instance, if one buys an article 
 made of nickel under the impression that it is silver, and 
 which the vendor also believes to be silver, the contract is 
 voidr and the purchase money, if paid, can be recovered 
 back : the same is the case where the article is plated *. If 
 
 ' Dig. 19. I. 13. 14 : 21. 2. 69. 6. ^ Dig. 21. 2. 45. 
 
 ' Savigny, System, III. pp. 276 sqq. 
 
 * Pothier, 34: Dig. 18. I. 41. I : cf. ib. 9. 2. From Dig. ib. 10 it 
 would appear that if the metal is merely an inferior quality of that 
 which the purchaser intended to buy, the contract is not aifected. 
 Dig. ib. 14 is at variance with 41. i, already cited, unless we can take 
 ' inauratum' to mean not plated, but an alloy of gold. Dig. ib. 45 creates 
 some difficulty, for it seems to lay down a rule quite irreconcileable 
 with that stated in 41. I, unless (with Vangerow) we suppose that 
 Marcian was not considering the effect of mistake, but the question 
 how far the vendor was liable if he warranted the material or quality 
 of the thing he was selling, apart from the further question whether 
 the contract was void on the ground of mistake or not. For different 
 interpretations see Savigny, System, 11. pp. 295 sqq. : Treitschke, 
 Kauf contract, p. 85. 
 
56 
 
 MISTAKE. FRAUD. DURESS. 
 
 Mistake 
 as to the 
 price. 
 
 Mistake 
 of motive. 
 
 one buys vinegar, believing it to be wine, the case is the 
 same, but otherwise if the wine be merely sour ^ : and 
 similarly if one buys a female slave, believing her to be a 
 male, or vice versa : though the contract is good if she was 
 believed to be virgo, and is actually muher ^. A mistake as 
 to the species of wood of which furniture is made is deemed 
 to be non-essential ^ ; but an action will lie for damages if 
 the vendor represented it to be of a particular wood, of 
 which it is not, even though he did so in good faith. 
 Similar principles are applied if it is the vendor who is 
 under the mistake instead of the purchaser. If both are 
 in error, and the error is essential, it is obvious that the 
 contract is entirely void. 
 
 (3) A mistake of either party as to the price makes the 
 contract void*, provided that it could not have been 
 avoided by ordinary care, and that it operates to the dis- 
 advantage of the party who is in error. That is to say, 
 the purchaser cannot be compelled to buy at a higher 
 price than he intended, nor can the vendor be compelled to 
 sell at a lower : on the other hand, if the vendor believed 
 the purchaser was offering him less than he really was, and 
 agreed to sell at the price erroneously supposed to be 
 offered, he is bound to do so ^. 
 
 (4) The validity of a contract is not (except in one case) 
 affected by the fact that one is induced to enter into it by 
 
 1 Dig. 18. I. 9. 2. 2 j)jg jg_ j_ jj_ j_ 
 
 ^ Dig. 19. I. 21. 2. Some MSS., however, by reading emptionem )?o» 
 esse state an exactly opposite rule. 
 
 * Dig. 18. I. 9. pr. : of. 19. 2. 52 : Pothier, 36. 
 
 ^ Arg. Dig. 19. 2. 52. In PhiUlps v.Bistolli, 2 B. & C. 511, the defen- 
 dant, a foreigner, not understanding our language, was sued as pur- 
 chaser of some ear-rings, at auction, for the price of eighty-eight 
 guineas, and alleged in defence that he thought the bid made by 
 him was forty-eight guineas, and that there was a mistake in 
 knocking down the articles to him at eighty-eight guineas : Abbott, 
 C. J. left it to the jury to find whether the mistake had actually 
 been made, as a test of the existence of a contract of sale : Benjamin, 
 p. 6i. 
 
MISTAKE. FRAUD. DUEESS. 57 
 
 what may be best described as a mistake of motive ^. No 
 one, for instance, would think it reasonable that a pur- 
 chaser of a particular stock should be allowed to say that 
 his purchase was void merely because the stock had fallen 
 instead of having risen in the market, or because he 
 erroneously believed that the vendor had rendered him a 
 service. There is, however, an exception where on reason- 
 able grounds one believes that one is legally compellable 
 to sell a particular thing: for in that case, though if he 
 does sell it a man is technically bound by his contract, he 
 can resist an action when sued upon it, and can himself 
 take proceedings to procure his release ^. 
 
 (5) If one believes one is buying from or selling to a par- Mistake 
 ticular person, when he really is some one entirely different^ identity 
 the mistake, according to some eminent authorities ^, is °L*^® 
 non-essential. But this can only mean that such mistake party, 
 is, in perhaps the majority of sales, of absolutely no conse- 
 quence. There is authority for saying * that when one has 
 a special reason for contracting with a particular person, 
 such, for instance, as one's confidence in his honesty, 
 solvency, or business capacity, the law will not involve 
 one against one's will in a contract with some one else, and 
 it is difficult to believe that this rule had no application to 
 the contract of sale. The point is not discussed in the 
 Roman authorities on the subjects- 
 Deceit negatives the implied condition of good faith Dolus or 
 
 fraud. 
 
 ' Arg. Dig. 12. 4. 3. 7 : 12. 6. 65. 2. ^ Dig. 19. i. 5. i. 
 
 ' E.g. Treitschke, Kauf contract, § 27 : Gluck, Pandekten, 16. p. 18. 
 
 * E.g. Dig. 12. I. 32. 
 
 " In English law ' a mistake as to the ^jerson with whom the contract 
 is made may or may not avoid the sale according to circumstances. In 
 the common case of a trader who sells for cash, it can make no possible 
 difference to him whether the buyer be Smith or Jones, and a mistake 
 of identity would not prevent the formation of the contract. But where 
 the identity of the person is an important element in the contract of 
 sale, as if it be on credit, where the solvency of the buyer is the chief 
 motive which induces the assent of the vendor : or when the purchaser 
 
58 MISTAKE. TBAUD. DURESS. 
 
 upon which sale is founded along with the consensual con- 
 tracts in general. It is well known that until the time of 
 Cicero fraud was no defence whatever to an action on an 
 agreement expressed in solemn form, such as stipulation, 
 but that straightforward dealing was deemed essential to 
 the perfect validity of those other contracts which were 
 sued upon by actiones bonae fidei : thus it is said that a 
 covenant ' dolum malum a venditore abfuturum ' was 
 superfluous and unnecessary ^, and that the vendor (and 
 no doubt the purchaser equally) was unable to contract 
 himself out of the consequences which his fraud would 
 entail, because ' dolus semper abesse oportet in iudicio 
 empti, quod bonae fidei sit ^.' 
 Wiiat So far as the subject contains any difficulties, they relate 
 
 includes • ^'-' ^^^ questions : what kinds of conduct are to be in- 
 cluded under the notion of dolus, and what is the effect 
 upon the contract induced by it. 
 wilful Fraud in the narrower sense may be defined as a false 
 
 ments': statement made with knowledge of its falsehood, for the 
 purpose of inducing the other party, and actually inducing 
 him ^, to make the contract to his detriment * Thus it is 
 fraudulent for the vendor knowingly to state that the 
 
 buys from one whom he supposes to be his debtor, and against whom 
 he would have the right to set off the price : a mistake as to the person 
 dealt with prevents the contract from coming into existence for want 
 of assent ' : Benjamin, p. 63 : BonJton v. Jones, 2 H. & N. 564 : Lindsay 
 V. Cundij, 3 App. Cas. 459. 
 
 1 Dig. 18. I. 68. I : cf. 4. 3. 7- 3- 
 
 '^ Dig. 19. I. 6. 9. : ib. i. i. 
 
 ^ Dolus causam contractui dans is distinguished from dolus inci- 
 dens. The first is fraud without which the contract would not have 
 been made at all : the second is fraud which induces the contracting 
 party to make it in a particular form or with particular terms, though 
 lie would have made it in any case, fraud or no fraud. Le dol est une 
 cause de nuUite de la convention lorsque les manoeuvres pratiquies par 
 I'une des parties sont telles, qu'il est evident que sans ces manoeuvres 
 I'autre partie n'aurait pas oontraote : Code Civil, Art. 11 16. 
 
 * If the false representation causes no detriment, it does not affect 
 
MISTAKE. FEAUD. DURESS. 59 
 
 article which he is selling possesses qualities which it does 
 not 1, though statements made merely by way of puffing, 
 as to the truth of which the purchaser could easily inform 
 himself by examination, are not deemed dishonest ^ : to give 
 a false description of the acreage of ^ or charges on land*, 
 or to misrepresent the proportions of it which are meadow, 
 vineyard, or arable ^ : to hold himself out as the owner of 
 the property, when it is really not his at all ^ : to falsely 
 state that land is under lease to a tenant '', and so forth. 
 Moreover, what is termed ' active concealment ' is no less active con- 
 fraudulent than wilful misrepresentation : 
 
 dolum malum a se abesse praestare venditor debet, qui 
 non tantum in eo est qui fallendi causa obscure loquitur, 
 sed etiam qui insidiose obscure dissimulat * : 
 
 for instance, concealing from a purchaser the fact that 
 
 land is subject to a servitude ^ : with which may be classed 
 
 the conduct of a vendor who, knowing that a would-be 
 
 purchaser is under a serious misconception as to the nature 
 
 or character of what he is buying, does nothing to remove 
 
 it^". Moreover, on the broad principle that, so far as 
 
 civil liability is concerned, gross negligence is to be treated reckless 
 
 as equivalent to fraud ^^ it is deemed fraudulent for aastotiutli 
 
 vendor to make untrue statements about the subject- ^en'ts • 
 
 matter of the contract in reckless ignorance as to their 
 
 truth or falsehood ^^ : 
 
 tlie validity of the contract, Dig. 19. i. 7. 'Fraud vrithout damage 
 gives no cause of action ' : per Croke, J. 3 Bulst. 95 : cf. Pasley v. 
 Freeman, 3 T. R. 51. 
 
 .: 19. I. 13.4: ib. 34. 
 
 3 Dig. 19. 1. 13.4. 
 " Dig. ib. 30. I. 
 * Dig. 18. I. 43. 2. 
 " Dig. 19. I. II. 5. 
 " Dig. II. 6. I. I. : 17. I. 29. pr. : 47. 4. I. 2. 
 
 '^ ' I conceive that if a man, having no knowledge whatever on the 
 subject, takes upon himself to represent a certain state of facts to 
 exist, he does so at his peril : and if it be done either with a view to 
 
 ' Dig 
 
 18. 
 
 I. 
 
 43. pr. : 
 
 19. 
 
 • 13- 
 
 4: 
 
 ib. 
 
 2 Dig 
 
 18. 
 
 I. 
 
 43- pr- 
 
 
 
 
 
 *Dig 
 
 ib. 
 
 13 
 
 .6. 
 
 5 
 
 Dig. 
 
 ib 
 
 22 
 
 ' Dig 
 
 ib. 
 
 49 
 
 . pr. 
 
 
 
 
 
 "Dig 
 
 19- 
 
 I. 
 
 I. I : ib 
 
 39- 
 
 
 
 
6o MISTAKE. EEATJD. DUEBSS. 
 
 quid tamen si ignoravit quidem [servum] furem esse, 
 adseveravit autem bonae frugi et fidum et caro vendidit ? 
 videamus an ex empto teneatur. et putem teneri. 
 atqni ignoravit : sed non debuit facile quae ignorabat 
 adseverare . . . non debuit faoilis esse ad temerariam 
 indieationem ^. 
 
 And the same maxim finds an application in tbe rule, that 
 wherever the purchaser has such inadequate means of 
 informing himself as to the qualities, liabilities, and so 
 forth of the article which he is purchasing that he has 
 no alternative but to rely upon the statements of the 
 vendor, the latter is bound to give him the fullest possible 
 information within his own knowledge of these matters, so 
 innocent that even an entirely innocent non-disclosure of things 
 closure. known, and which ought to have been communicated, will 
 give the purchaser rights very similar to those which he 
 would have had if the case had been one of absolutely 
 fraudulent misrepresentation^. But this is a subject to 
 which we shall recur in considering the purchaser's rights 
 of rescinding in the chapter relating to modes of dis- 
 charge ^ 
 
 secure some benefit to himself, or to deceive a third person, he is in 
 law guiltj of a fraud, for he takes upon himself to warrant his own 
 belief of the truth of that which he so asserts,' per Maule, J. in Erans 
 V. Edmonds, 13 C. B. 786 : cf. Westeiti Bank of Scotland v. Addie, L. E. 
 I Sc. App. 145 : JReese Mirer Co. v. Smith, L. R. 4. H. L. 64. 79 : Weir v. 
 BeJI, 3 Ex. D. 238. C.A. 
 
 ' Dig. 19. I. 13. 3. 
 
 '^ E.g. Dig. 19. I. 21. I : ib.41. For the question how far the prin- 
 cipal is affected by the fraud of his agent see Dig. ib. 13. 7 : in English 
 Law, Benjamin, pp. 449-456. 
 
 ' En faisant Tapplication de ces principes au contrat de vente, il 
 s'ensuit que le vendeur est oblige de declarer tout ce qu'il salt touchant 
 la chose vendue a I'aoheteur qui a interet de le savoir, et qu'il peche 
 oontre la bonne foi qui doit regner dans oe contrat, lorsqu'il lui en 
 dissimule quelque chose : Pothier, 233. In 241 Pothier refers to 
 Cicero's question on the duty of a merchant who, arriving at Rhodes 
 during a famine, and having a number of other ships laden with corn 
 on the way, exposed his corn for sale : ought he to have informed 
 
MISTAKE. FEAUD. DURESS. 6 1 
 
 ine effect of any of these circumstances comprised under Effect of 
 the general head of fraud varies with the nature of the case, thrva"' 
 The contract is never void on the ground of fraud alone, Ijfe con' 
 unless the mistake brought about by the misrepresentation t^'^"*- 
 is essential or fundamental, for in that case there has been 
 no consent : fraud in itself does not exclude consent, but 
 merely supplies an erroneous motive for enterino; into the 
 contract ^. But if the party deceived would not have made 
 the contract at all had he known the truth of the matter, he 
 is entitled to avoid it, either by waiting until the other sues 
 him and resisting the action, or by bringing the ordinary 
 action ex empto or ex vendito for its rescission, for resti- 
 tution of the goods or the purchase money, as the case may 
 be ^, and for compensation for any ulterior damage which 
 the fraud may have entailed on him : 
 
 si quis virginem se emere putasset, cum mnlier venisset, 
 et seiens errave eum venditor passns sit, redhibitionem 
 quidem ex hac causa non esse, verumtamen ex empto 
 competere actionem ad resolvendam emptionem, et pretio 
 restitute mulier reddatur^. 
 
 It is clear, too, that if he may avoid the contract, he may, 
 without taking this course, content himself with an action 
 to recover such damages as he has sustained *. And this 
 action under the contract for damages is hifs only remedy 
 where the deceit has not actually and in itself induced him 
 
 buyers that a plentiful supply was close at hand ? Cicero appears to 
 have thought that he should do so, for to conceal his knowledge was 
 contrary to good faith. He adds ' la decision de Cioeron souffre beau- 
 coup de difl&culte, meme dans le for de la conscience. La plupart de 
 ceux qui ont ecrit sur le Droit Naturel ont regarde cette decision 
 comme outree.' 
 
 ^ For the proof see Vangerow, Pandekten, iii. § 605, note i. 
 
 " Dig. 19. I. 13. 27. 
 
 ^ Dig. 19. I. II. 5 : cf. Cod. 4. 44. 5 : ib. 10. 
 
 * Dig. 18. I. 43. 2 : ib. 68. I & 2 : 19. i. 4. pr. : ib. 6. 9 : ib. 13. 4 
 
 &5- 
 
62 MISTAKE. FRAUD. DURESS. 
 
 to enter into it, but merely relates to subordinate points 
 which are matters for compensation, because he would 
 still have made the contract had he known the truth about 
 them (dolus incidens) ^ : as where, for instance, one is in- 
 duced to give a higher price for an article than one would 
 have given otherwise by a false statement by the vendor as 
 to some non-essential quality or property. 
 
 If both parties have been guilty of fraud towards one 
 another, neither can sue the other vnth any effect ^ : and 
 if there has been performance by either he cannot, on the 
 principle 'in pari delicto potior est conditio defendentis,' 
 claim a return of either the goods or the purchase money, 
 or any kind of compensation ^. 
 
 Should the fraud be practised on one by another person 
 who is not a party to the contract at all, it is void if 
 the mistake which it produces is essential, and he can 
 recover for any damage which he may have sustained by 
 bringing an actio doli against the guilty person *. If the 
 mistake is non-essential, the contract is not even voidable 
 against the other party, he being entirely innocent, though 
 an actio doli for damages will lie against the one who 
 practised the fraud ° : and sometimes even the wrong may 
 be redressed by an action on the contract against the 
 other party ^. 
 
 ' Dig. 19. 1. 13. 4, &c. The rules of tlie Civil Law seem to be clearly 
 stated in the Saxon bilrgerliclies Gesetzbuch, §§ 833-835, cited by 
 Treitschke, Kaufcontract, p. loi, note I : 'if a contracting party is 
 induced to enter into a contract by fraud on the part of the other, he 
 can either ratify the contract or impeach its validity. If the fraud 
 relates to subsidiary matters, which are not essential in determining 
 him to make the contract, he is entitled only to sue for damages.' 
 
 "^ Dig. 18. I. 57. 3 : cf. ib. 34. 3. ^ j)ig_ c,o. 17. 154. 
 
 ' Dig. 4. 3. 7. pr. ^ Dig. 4. 3. 8. 
 
 * E. g. a merchant borrows some weights for the purpose of weighing 
 out a certain quantity of goods (say potatoes) which another person 
 has agreed to buy from him, and the lender knows them to be light : 
 the purchaser can sue ex empto for such an additional quantity as will 
 make up the right weight : Dig. 4. 3. 18. 3. 
 
MISTAKE. FRAUD. DUEESS. 6^ 
 
 Where a contract is procured by threats of some evil to Metus or 
 be inflicted on the person whose consent it is desired to an^its 
 obtain (Duress), the consent is deemed to be voluntary, effects. 
 or at any rate an actual consent i : but the conduct of the 
 party using such threats being contrary to the bona fides 
 which we have seen to be an essential condition of the 
 consensual contracts, the other has rights similar to but 
 more extensive than those which arise from fraud. The 
 conditions of those rights are twofold. In the first place, 
 the threat must have been of something unlawful^ and 
 something sufiiciently serious, and the chance of its being 
 actually inflicted must have been sufficiently near, to have 
 influenced a person of courage and resolution : for instance, 
 threats against one's life, one's chastity, or one's personal 
 liberty or security: threats to destroy valuable property, 
 and so forth : 
 
 metum autem non vani homiuis, sed qui merito et in 
 homine constantissimo cadat^ ad hoe edictum pertinere 
 dicemus^ : 
 
 and it is immaterial whether the person threatened is the 
 one whose consent it is desired to extort, or the husband, 
 wife, or some near relation *. In the second place, the 
 threats must have been used for the very purpose of in- 
 ducing the person directly or indirectly threatened to make 
 
 ' Dig. 4. 2. 21. 4 & 5 : 23. 2. 22. 
 
 ^ Arg. Dig. 47. 10. 13. I : iuris enim exeoutio non habet iniuriam. 
 
 ' Dig. 4. 2. 6 : cf. ib. 2-4 : 4. 6. 3 : Cod. 2. 20. 4 & 7. II y a violence 
 lorsqu'elle est de nature a faire impression sur une personne raison- 
 nable, et qu'elle pent lui inspirer la crainte d'exposer sa personne ou sa 
 fortune a un mal considerable et present. On a egard, en cette 
 matiere, a I'dge, au sexe et a la condition des personnes : Code Civil, 
 Art. 1 1 12. 
 
 * The authorities mention only children (Dig. 4. 2. 8. 3), but no doubt 
 as an example only. La violence est une cause de nuUite du contrat, 
 non seulement lorsqu'elle a ete exercee sur la partie contractante, 
 mais encore lorsqu'elle I'a ete sur son epoux ou sur son epouse, sur ses 
 descendans ou ses ascendans : Code Civil, Art. 1113. 
 
64 MISTAKE. FRAUD. DURESS. 
 
 the contract which he seeks to repudiate ; in other words, 
 one cannot avoid a contract which one may have made 
 as an ulterior consequence of threats used for a different 
 purpose ^. Assuming that these conditions are satisfied, 
 the person whose consent to a contract of sale has been 
 thus wrongfully obtained has the following remedies : — 
 (i) he can bring the ordinary action on the contract for 
 its rescission and for damages, or if sued upon it, he can 
 defeat the action by the exceptio metus : or, if he prefers 
 it, he can let the contract stand, and content himself 
 with an action for damages only ^ : (3) he can apply to the 
 courts for an in integrum restitutio on the ground of the 
 duress, the effect of which is to undo the contract with all 
 its consequences, and to replace him in statu quo ante 
 as regards third persons as well as the other contracting 
 party 3 : (3) in some cases he will obtain heavier damages 
 than by an action on the contract by bringing the actio 
 quod metus causa against the person who had used the 
 threats, and this is sometimes the more appropriate remedy, 
 especially in cases where one is induced to contract with 
 one person by duress practised by another: but being in 
 substance an action ex delicto it does not require further 
 mention in this connection. 
 Metus has It will thus be seen that duress confers more extensive 
 
 a wider 
 
 operation rights than traud. The latter is said to operate in 
 Dohis. personam only, the former in rem. That is to say, where 
 one has been induced to make a contract by threats of the 
 kind described, one can avoid its consequences even as 
 against innocent third parties who have acquired rights 
 through or under it ; and even where the compulsion, 
 though used with the direct object of inducing one to 
 make the contract, is exercised by a person who is not 
 a party to it at all, and without the knowledge of the 
 
 ^ Dig. 4. 2. 9. I. 2 Cod. 4. 44. I & 8 : 2. 20. 12. 
 
 ' Cod. 2. 20. 3 : Dig. 4. 2. 9. 4-6. 
 
MISTAKE. FEAUD. DUEESS, 65 
 
 person who is, one can nevertheless avoid it by an actio 
 quod metus causa against the latter, and claim restitution 
 of any benefit which he has obtained by its means ^- 
 
 It is perhaps hardly necessary to say that if a person 
 who had been induced to make a contract by duress 
 ratified it, either expressly or by implication, on becoming 
 released from the influence, the right of rescission was 
 lost 2. 
 
 If the threats by which a man is induced to make a 
 contract are not of the serious character indicated above, 
 he cannot avail himself of these remedies. If sued, however, 
 he can usually defeat the action by exceptio doli : he can 
 recover the purchase money or property transferred under 
 the agreement by condictio ex iniusta causa : and he can 
 get compensation for such other damages as he has sufiered 
 by an actio doli ^. 
 
 ' Dig. 4. 2. 14. 3 : 44. 4. 4. 33 : Cod. 2. 20. 3 & J. La violence 
 exercee centre celui, qui a contracte I'obligation, est une cause de 
 nuUite, encore qu'elle ait ete exercee par un tiers autre que celui au 
 profit duquel la convention a ete faite : Code Civil, Art. 1 1 1 1 . 
 
 ^ Cod. 2. 20. 2 & 4. Un contrat ne peut plus etre attaque pour 
 cause de violence, si, depuis que la violence a cesse, ce contrat a ete 
 approuve, soit expressement, soit tacitement, soit en laissant passer le 
 temps de la restitution fixe par la loi : Code Civil, Art. 11 15. 
 
 " Dig. 12. 5. 6 & 7 : 4. 2. 14. 3. It must not be infen-ed from -what 
 has been said above that there are no cases in which a man can be 
 compelled to sell particular property. Sometimes this is done in 
 pursuance of obligatory directions, as where a testator imposes on 
 his heir a trust to sell the inheritance, or some particular portion of 
 it or thing belonging to it, to a third party, or to buy something 
 which he does not want from a beneficiary under the will (e.g. Dig. 
 30. 49. 8 & 9 : ib. 66 : Pothier, 510). So too in time of famine people 
 might be compelled to sell grain of which they had no personal 
 need at a fair price (Cod. 10. 27. 2 : Pothier, 511), and other com- 
 pulsory sales for pubKc purposes, such as roads, are mentioned in the 
 authorities (Pothier, 1. c). The rescript of Antoninus Pius, compelling 
 inhuman masters to sell their slaves on advantageous terms, is famiKar 
 to readers of the Institutes (Gaius, i, 53 : Inst. i. 8. 2). Other illus- 
 trations will be found in Dig. 11. 7. 12. pr. : 20. 5. 2 : of. Beohmann, 
 Kauf, ii. §§ 187-195. 
 
CHAPTER VII. 
 
 RULES AS TO THE PRICE. 
 
 The price must be fixed in money. Consideration consisting partly in 
 money, partly in some other thing. The price must be fixed : no doctrine 
 of a 'reasonable price.' Agreement that the price shall be fixed by an 
 arbitrator or expert. Variation of the price. Fixing of the price where a 
 number of things are bought together. The price must be intended as 
 a bona fide equivalent for the goods. Fairness or adequacy of the price. 
 
 The price The first requirement of the price is one to which 
 
 must be iiii t ■ t • 
 
 fixed in reference has akeady been made, viz. that it must consist 
 money. -^ money (pecunia numerata) : the reason of the rule being 
 stated by Paulus ^, that otherwise it would be impossible to 
 tell which of the parties was vendor and which was pur- 
 chaser. If what is agreed to be given for the goods is 
 some other thing than money, the transaction is exchange, 
 and is governed by some rules fundamentally different 
 from those of sale '^. The question whether the price must 
 be fixed in current coin — coin, that is to say, which is legal 
 tender — or whether it might not also be in the coinage of 
 some other country, or in coins which have ceased to be 
 current, is not dealt with in the authorities, no doubt 
 because foreign money was rare, if not quite unknown, in 
 the time of the classical jurists ^. It is not, however, 
 
 ^ Dig. i8. 1. I. I : Inst. iii. 23. 2. 
 
 ^ Cod. 4. 64. 7 : see p. 5 supr. So too in English law ' the price 
 must be money, paid or promised, accordingly as the agreement may 
 be for a cash or a credit sale : but if any other consideration than 
 money be given, it is not a sale. If goods be given in exchange for 
 goods, it is a barter ' : Benjamin, p. 2. 
 
 ' Bechmann, Kauf, ii. § 152, is of opinion that on the principles of 
 
HULES AS TO THE PRICE. b^ 
 
 necessary to the contract that the purchaser should satisfy 
 the vendor in coined money, if it be otherwise provided, 
 for the difficulty of determining which was vendor and 
 which purchaser was met by the agreement that one was 
 to give money, and therefore they might, without in any 
 way altering the nature of the contract, agree afterwards 
 to substitute for the payment of the purchase money the 
 giving of some other thing ^ : and there seems no reason in 
 the nature of things why they should not agree upon this 
 at the outset, though no authority can be found for this 
 suggestion ^. Nor is it strictly necessary that the con- Consideni- 
 sideration should consist entirely in money : the purchaser sigting'^' 
 may promise, in addition to the price of an estate, to take v^'-'^'h m 
 
 ■' ^ ' ^ ' money, 
 
 a lease of other land from the vendor ^, or to give him a partly in 
 lease of the land which he has bought *, or to repair a thing, 
 house for him ^. But although it must be granted that so 
 long as any part of the consideration agreed upon is money 
 there is enough to differentiate the transaction from ex- 
 change, and to determine the r61es of the parties respectively 
 as vendor and purchaser, it is not at all clear that it will 
 on that account always be held to be a sale, and owing to 
 the scantiness of the authorities on the point the views of 
 the commentators are somewhat arbitrary and conflicting. 
 According to one view, the answer depends (in the absence 
 of express declaration by the parties) upon the relative 
 
 the modern Civil Law the price might be fixed in a currency -which 
 admits of reduction to that which is legal tender, such as that of a 
 foreign country with a regular known rate of exchange, but that 
 payment must be in coins which are legal tender. 
 
 1 Cod. 4. 44. 9 : 8. 45. 4 : Pothier, 30. 
 
 ^ E. g. if A and B agree to exchange two articles, as to the money 
 price of which they are also quite in accordance, and the two prices 
 exactly correspond, one might not unreasonably say that there are two 
 sales made with the intention that the purchase money of each is to be 
 set off against the other, 
 
 = Dig. 18. 1.79. * Dig- 19- I. 21.4. 
 
 ° Dig. 19. I. 6. I. 
 
 F 2, 
 
68 BULKS AS TO THE PRICE. 
 
 value of the two parts of the consideration ; for if that 
 part of it which is not money preponderates, it will not be 
 sale, but exchange^, while if they are of equal value, or if 
 their relative value is not precisely ascertainable, it will be 
 sale ^ But the passages upon which this view is based ^ 
 are far indeed from establishing it, for all that they say is, 
 that the nature of the contract of sale is not altered because 
 the purchaser is to do something for the vendor besides 
 paying the purchase money which has been agreed upon. 
 These promises to do other things are pacta adiecta, or 
 what an English lawyer would call terms in the contract, 
 and (notwithstanding the adverse opinion of some of the 
 earlier lawyers of the Empire*) are enforceable by the 
 ordinary action ex empto of ex vendito. It is, however, 
 worthy of notice, that none of the passages to which 
 reference has been made class as sale a transaction in 
 which some other thing is to be given in addition to 
 money ; they all relate to the doing of some act, or the 
 rendering of some service. It would seem, on the whole, 
 more in accordance with the Roman doctrine to say that it 
 is sale only where money, and money alone, is agreed to be 
 given for the merx or goods, though the nature of the 
 contract is not affected if it is agreed by a pactum adiectum 
 that either vendor or purchaser is to do something else for 
 the other ^. 
 Tlie price In the second place, the price must be fixed (certum) ^, 
 fixed . aud as a rule fixed by the agreement of the parties them- 
 selves : until so fixed there is no obligation, and therefore 
 no contract ''. The Eoman law knows nothing of a ' reason- 
 
 ' So Gluck, Pandekten, i6. p. 69. 
 '^ Thibaut, Pandektenrecht, § 857. 
 
 ' Dig. 18. I. 79 : 19. I. 6. I : ib. 21. 4. * Dig. 18. i. 79. 
 
 ^ See Treitsohke, Kaufcontract, § 114 : Bechmann, Kauf, ii. § 152. 
 ° Inst. iii. 23. I. 
 
 ' Le prix de la vente doit etre determine et designe par les parties : 
 Code Civil, Art. 1591. 
 
EXILES AS TO THE PEICB. 69 
 
 able price, which it is presumed the parties intended if no do<i- 
 they did not explicitly agree as to what was to be paid. 'reason- 
 Consequently, contracts of sale of a kind with which we ^^'* ^^'"^*'' 
 are so familiar, as where one goes to a shop and gets goods 
 on credit without asking the price, or directs the shop- 
 keeper to make one an article of a particular description 
 without asking what it will cost, are in the Civil Law not 
 contracts of sale at all, but innominate: the tradesman 
 who supplies the goods, or who makes and delivers the 
 article which has been ordered, sues for a money compeh-: 
 sation not by actio ex vendito but by actio praescriptis 
 verbis ^- Consequently also it is no sale if it is agreed that 
 the determination of the price shall be left absolutely to 
 one or other of the pai-ties themselves : 
 
 ilhid constat imperfectum esse negotium, cum emere 
 volenti sic venditor dieit : ' quanti velis, quanti aequura 
 putaveris, quanti aestimaveris, habebis emptum ^. 
 
 ■^ Arg.Dig. 19.5.22. InEnglishlaw.ifnothing has beensaidasto price 
 when a commodity is sold or agreed to be sold, the law implies an un- 
 derstanding that it is to be paid for at what it is reasonably worth : see 
 Chalmers, Sale of Goods, p. 12. This was settled in 1834 for executed 
 contracts by Acebal v. Leiyy, 10 Bing. 376, and for executory contracts 
 by Hoadley v. McLaine, ib. 482. What is a reasonable price is a ques- 
 tion for the jury, and will not necessarily be the current price as it was 
 at the date of the contract. The Scotch law appears to have started 
 ■\vith the Roman principle, but to have adopted the English one, at any 
 rate so far as executed contracts are concerned : ' Where the contract 
 has been conclusively settled by delivery of the goods sold, the parties 
 will be presumed in law to have had in contemplation the reasonable 
 value of the thing sold ' : Bell on Sale, p. 19 : Principles of the Law of 
 Scotland, § 92. 
 
 ^ Dig. 18. I. 35. I : Cod. 4. 38. 13 : Pothier, 23. 29. Some eminent 
 authorities, among the more recent being Windscheid, Lehrbuch, § 386, 
 note 6, dispute this rule, holding that such a contract is good, but that 
 if the party who is left to fix the price fixes it altogether unreasonably, 
 it can be rectified by reference to the judgment of a competent and 
 impartial man (boni viri arbitratus). The passages upon which this 
 view is based are Dig. 50. 17. 22. i : 18. i. 7. pr. : 17. 2. 6 : ib. 77 : ib. 79 : 
 19. 2. 24. pr. : Cod. 5. II. 3. It is to be observed that in Dig. 18. i. 35^ 
 I. cited the negotium is not said to be 'nullum,' but ' imperfectum.' 
 
yo -EULES AS TO THE PRICE. 
 
 Agree- Whether the contract was invalid because they agreed to 
 
 llUiUt that ir.- n 1 ■ 1 • 1-T 
 
 the piicu leave the fixing of the price to a determinate third person 
 fiird by or persons had been disputed from the commencement of 
 Hu arbi- fQ^Q Empire, if not earlier. Labeo and Cassius were of 
 
 trator or 
 
 cxpiTt. opinion that such an agreement was void as a 
 
 while the Proculians held it to be a valid sale subject to 
 the suspensive condition that the person named should as 
 a fact fix what the price should be^. The controversy 
 does not appear to have been set at rest until the time of 
 Justinian, who enacted that the contract should bind both 
 parties at the price named by the third person, but that if 
 he declined or was unable to fix it, it should be void ^. If, 
 while agreeing that the price should be fixed by a third 
 person, the parties did not or could not settle who he 
 should be, the contract was void^, and could not be 
 validated by consulting the opinion of anyone else, how- 
 ever competent and impartial he might be * : and if the 
 valuer named fixed an outrageously unfair price, it is very 
 generally held that it could be rectified by recourse to an 
 action '. On the principle 'id certum est quod certum reddi 
 potest,' a temporary subjective uncertainty of the parties 
 
 ' Gaius, iii. 140. There seems to be no authority whatever for a 
 view which might have been suggested, that the price could be fixed 
 boni viri arbitratu if it was not fixed at all by the valuer agreed upon. 
 
 ^ Inst. iii. 23. I : Cod. 4. 38. 15. (Le prix) peut cependant etre laisse 
 a I'arbitrage d'un tiers : si le tiers ne veut ou ne fieut faire I'estimation, 
 iln'y apointde vente : Code Civil, Art. 1592. It is held that under this 
 provision it is a good agreement that the price should be fixed by 
 experts, although none are named when the contract is made : Demante, 
 Cours analytique de Code Civil, vii. p. 32 : see the next note. 
 
 ' Arg. Dig. 19. 2. 25. pr. : si merces promissa sit generaliter alieno 
 arbitrio, looatio et conductio oontrahi non videtur : for by Justinian's 
 enactment in the Code last referred to there was to be no difference in 
 this respect between Sale and Hire. 
 
 * Cod. 4. 38. 15. 
 
 '' Arg. Dig. 17. 2. 79 : unde si arbitrium ita pravum ut manifesta ini- 
 quitas eius appareat, corrigi jjotest per iudicium bonae fidei : so Pothier, 
 24. Contra Bechmann, Kauf, ii. § 217, lajang stress on Justinian's 
 
EULES AS TO THE PEICE. 7 1 
 
 as to the amount of the price was immaterial, if -what they 
 intended admitted of immediate ^ ascertainment : 
 
 huiusmodi emptio ' quanti tu eum emisti,' ' quantum 
 pretii in area habeho,' valet : nee enim incertum est 
 pretium tam evident! venditione : magis enim ignoratur 
 quanti emptns sit, quam in rei veritate incertum est ^ : 
 
 though if the assumed possibility of fixing it was based on 
 a misconception as to something in the past the contract 
 fell to the ground : 
 
 si quis fundum iure hereditario sibi delatum ita vendi- 
 disset — ' erit tibi emptus tanti, quanti a testatore emptus 
 est ' — mox inveniatnr non emptus, sed donatus testatori, 
 videtur quasi sine pretio facta venditio, ideoque similis 
 erit sub conditione factae venditioni, quae nulla est, si 
 conditio defeeerit ^. 
 
 language .... omnimodo seoundum aestimationem eius .... vendi- 
 tionem ad effectum pervenire. The English law as to agreements for 
 the fixing of the price by third persons is much the same as the Civil 
 Law where the contract is executory (Thurnell v. Balbirnie, 2 C. B. 786, 
 and other cases cited by Benjamin, p. 90). But if the agreement has 
 been executed by the delivery of the goods, the vendor will be entitled 
 to recover the value estimated by the jury, if the purchaser should do 
 any act to obstruct or render impossible the valuation, as in Clarke v. 
 Westroppe, 18 C. B. 765, where the defendant had agreed to buy certain 
 goods at a valuation and the valuers disagreed, and the defendant 
 thereupon consumed the goods, so that a valuation became impossible : 
 Benjamin, loc. cit. 
 
 ^ The word ' immediate ' is emphatic, for it would not seem to be 
 allowable to have the price fixed by reference to some uncertain event 
 in the future, as e. g. in a purchase of stock ' at the carrying over price 
 at the next account ' : see Dig. 18. 1. 7. 2, and Bechmann, Kauf, § 216. 
 There is an apparent exception to the general rule established by a 
 rescript of Severus and Antoninus : ' potest ita fieri pignoris datio 
 hypothecaeve, ut, si intra certum tempus non sit soluta pecunia, iure 
 emptoris possideat rem iusto pretio tunc aestimandam,' Dig. 20. i. 16. 
 9 : but this is explained by regarding the agreement as a pactum 
 adiectum to a contract of pledge, not as an independent contract of 
 sale. Pothier, 27. 28. 
 
 2 Dig. 18. I. 7. I. ^ Dig. 18. I. 37. 
 
72 EULBS AS TO THE PRICE. 
 
 Variation Similarly, a minimum price might be agreed upon, with a 
 pii*'^^ covenant that it should be increased in the event of the 
 purchaser selling the goods at a profit ; for here, as Ulpian 
 says ^, the requirement of a ' fixed ' price is satisfied. There 
 was no reason why the price should not be altered by 
 mutual consent of the parties after the contract was con- 
 cluded, so long as there had not yet been performance, 
 though this was really the discharge of the original agree- 
 ment by the making of another whose terms were in- 
 consistent with it: 
 
 Paulus notat : si omnibus integris manentibus de augendo 
 vel deminuendo pretio rursum convenit, reeessum a priore 
 coutiactu et nova emptio intevcessisse videtur ^. 
 
 fixing of Where the subject-matter of a sale consists of, or may 
 where'a ^^ regarded as consisting of, a number of things, such as 
 number of g^jj estate of SO many acres, a herd of cattle of so many 
 
 things are . 
 
 bought head, a vintage of so many barrels, &c., there are two 
 ° ' methods of fixing the amount of the purchase money. It 
 may be agreed either that a lump sum shall be paid for 
 the whole, or that so much shall be paid for each acre, 
 head, barrel, and so forth. In the first ease the sale is 
 called emptio in aversione or per aversionem^, and the 
 purchase money is unaltered whether the number of indi- 
 viduals comprised in the aggregate prove more or less than 
 was expected, though of course if the vendor had stated 
 what the number was, and he cannot make it up, he must 
 allow of an abatement in the price *. In the second case, 
 which is called emptio ad mensuram, the purchase money 
 is deemed to be ' certum ' from the moment that the parties 
 
 ' Dig. i8. I. 7. 2. ^ Dig. 18. I. 72. pr. 
 
 " Dig. 18. I. 62. 2: 18. 6.4. I. 
 
 * Dig. 19. I. 2. pr. : ib. 4. I : ib. 6. pr. : ib. 38. pr. The apparent 
 contradiction in Dig. ib. 13.4. disappears if one distinguishes between 
 two cases, in one of which there is a fraudulent misrepresentation of 
 acreage, in the other one which is made in good faith. 
 
RULES AS TO THE PEICB. 73 
 
 have agreed as to what is to be paid for each acre, head, 
 barrel, &c., because it admits of practically immediate 
 ascertainment, and neither party can after that moment 
 repudiate the bargain : the sum actually due depends on 
 the number ascertained by counting, weight, or measure- 
 ment, and a statement made by the vendor as to that 
 number, unless fraudulent, is not taken as a warranty, but 
 rather as a rough and ready estimate for the information 
 of the purchaser^. There is a further difference between 
 the two cases in respect of the moment from which the 
 goods bought are at the purchaser's risk, which will be 
 considered in the next chapter. 
 
 No transaction will be held a sale in which the price The price 
 agreed upon is not intended by the parties to be a real intended 
 and bona fide equivalent for the thing pretended to be ^ ^ '"'".'' 
 purchased ^, or in which it is not intended that it shall valent for 
 be paid at all ^. Such simulated sales are not unfrequently 
 resorted to in order to evade the law (e.g. as to gifts 
 between husband and wife *, and conveyances in fraud of 
 creditors) : but even where there is no such object in view, 
 
 ' Dig. i8. 1.40. 2. Cf. the use of 'about,' 'say about,' 'more or 
 less,' in English contracts. These terms mean that the quantity is 
 not restricted to the exact number or amount specified, but that the 
 vendor is to be allowed a moderate and reasonable latitude or margin 
 in performance : Cross v. Eglin, 2 B. and Ad. 106 : Moore v. Campbell, 
 10 Ex. 323 : McConnell v. Murphy, L. R. J C. P. 203. 
 
 2 Ce que la doctrine entend par un prix non serieux, c'est une 
 somme d'une modicite derisoire par comparaison a la valeur de la 
 chose : Demante, Cours analytique de Code Civil, vii. p. 33. 
 
 ^ It is commonly said the pretium must be ' varum,' but this seems 
 to be hardly a Roman use of the epithet. Le prix doit etre un prix 
 serieux, et convenu avec intention qu il pourroit etre exige : c'est 
 pourquoi si une personne me vendoit une chose pour une certaine 
 somme, et que par le contrat il m'en fit remise, un tel acte ne seroit 
 pas une vente, mais une donation . . . il en seroit autrement si la 
 remise du prix n'avoit ete faite que ex intervallo : car il y a en ce 
 cas un prix que I'acheteur s'est veritablement oblige de payer : 
 Pothier, 18. 
 
 * Pothier, 39. 
 
74 BCLES AS TO THE PBICE. 
 
 althoag^ the eoniaact may be held a gift, a d^osit, a 
 mortgage, or (in short) whatsoever the parfa€S may have 
 really intended, it cannot prodaee the effects which the 
 law says shall result &om a sale^. Sneh sales as those 
 of an inheiitanee 'nummo nno' xmder a iamst before iJie 
 enactment of the Sc Trehelliannm ^. and sales for a piiee 
 which it was never intended to demand, were ^Ss, sad 
 were governed by the mles applying thereto^: no ae&sm^ 
 would lie for the pretended purchase money *. There was, 
 however, no reason why one should not sell a thing at a 
 lower price than one conld get for it in the open market 
 to oblige a £dend'^, tiion^ this would not be allowed if 
 the real object was to evade such roles as those prohibiting 
 ^fis betireeiL husband and wife: a sale between tliem at 
 half price, for instance, is half ^&, half sale, and v^id only 
 in respect of tiie latter*. It would also seem that if at 
 &e time when the contract was made it really was intended 
 to be a bona fide sale, and not a gift, its dharacter would 
 not be altered by the vendor's subsequently remitting a 
 portion or even the wbole of the purdiase money '^, for, as 
 Ulpian says, it is not the payment of the purchase mraiey, 
 bat the intention of the parties, whidi makes ilie contiact, 
 and determines its true nature *- 
 Fairness So far as the fairness or adequacy of the price goes, the 
 qoarr of fundamental principle of the law is to leave the pities to 
 the pne& ^aak& th^ own bargain. It is of Hhe v^j nature of flie 
 contract that they shall be at liberty to sell and buy dieap 
 or dear, provided of coarse that tiiere is no &and : 
 
 in emendo et vendendo natnialiter eoncesam est quod 
 
 ' Mg. 18. 1. 36 : ib. 55 : Cod. 4. 3& 3 & 9. * G^ns. iL 252. 
 
 ' Cod. g. 53. 34 : ib. 36. 3 : Pothiei;, 19L 39u ^ Cod. 4. 38. 91 
 
 ' Kg. 18. 1. 38 : Pcrfliier, 21. 
 
 * Mg. 24. I. 5. 5 : ib. 31. 3. 
 
 ■ Afg. TUg. igi 2. 5 : si tibi habitadonem loeaTero. mos penaonem 
 Femittam. ex locate et eondoeto agendum etit. 
 
 * Dig. 18. I. 2. I. 
 
EULES AS TO THE PRICE. 75 
 
 pluris sit minoris emere, quod minoris sit pluris vendere, 
 et ita invicem se circumseribere ^. 
 
 An early exception to this rule was the regulation of the 
 price of corn on grounds of public policy^: another is found 
 in Justinian's enactment ' providing that if one of two or 
 more joint owners of a slave one desires to manumit him 
 the others shall be compellable to sell him their shares, and 
 fixing the compensation to be paid according to the slave's 
 age and capacities *. But the most important departure 
 from the original principle was the enactment in A. D. 285 
 of Diocletian and Maximian, by which it was laid down 
 that if one sold a thing for less than half its real value 
 one could rescind the sale unless the purchaser would 
 make the price up to a fair one ^. Here, however, the sale 
 is not void, but merely voidable, and the subject will be 
 dealt with more fully, under the head of the vendor's right 
 of rescission, ia the chapter relating to modes of discharge. 
 
 ' Dig. 19. 2. 22. 3 : cf. 4. 4. 16. 4. 
 
 ^ E. g. by the lex Sempronia, e. c. 24. 
 
 ' Inst. ii. 7. 4 : Cod. 7. 7. 
 
 * Cod. 7. 7. I. 5 : 6. 43. 3. ^ Cod. 4. 44. 2. 
 
CHAPTEE VIII. 
 
 THE EFFECTS OF THE CONTEACT. 
 (a) Perieuluin and Commoduvi rei. 
 
 General rule as to the passing of the risk to the purchaser. Meaning of 
 perieulum rei. It pa.sses when the emptio is 'perfecta.' Grounds on 
 which it may be ' imperfecta :' (ij agi-eement not yet completely binding, 
 because the price is not fixed, or there is a suspensive condition, or the 
 purchaser has reserved the right of examining the goods : various cases 
 of this; (ii) the goods not yet specifically determined: meaning of 'weigh- 
 ing, counting, or measuring ' the goods : vendor's negligence in such cases. 
 Kule as to the risk when the vendor has the right of selection : in sales in 
 the alternative : and in sales of res alienae. Vendor's obligation to assign 
 rights of action where the goods are at the purchaser's risk. Exceptions 
 to the rule as to risk. Theories as to its rationale. Meaning of commo- 
 dum rei : the purchaser is entitled to fruits, and accessions, from the 
 moment the contract is concluded. 
 
 General The general principle is that on an absolute sale (and 
 
 to the'^ we may add on a sale subject to a resolutive condition) of 
 passing g, specificallv determined and existing thing, that thing is 
 
 of the risk t. •/ i i 
 
 to the at the risk of the purchaser from the moment that the 
 puic aser. ^^^^^.^^^^ -g concluded, even before it has been made his by 
 conveyance, and quite apart from the transfer of title : in 
 other words, if after the contract is once made, the thing is 
 lost, stolen, destroyed, or damaged without any fault of the 
 vendor, the latter is nevertheless entitled to the purchase 
 money, and the loss falls on the purchaser ^. Conversely, 
 
 ' Cum autem emptio et venditio oontracta sit, perieulum rei venditae 
 statim ad emptorem pertinet : Inst. iii. 23. 3 : of. Dig. 18. i. 34. 6 : 
 18. 5. 5. 2 : 18. 6. I. pr., ib. 4. i : ib. 8. pr. : Cod. 4. 48. 2. i., ib. 5. In 
 Pothier's time the law of France was the same : c'est un principe 
 etabli au titre du digeste de peric. et comm. rei rend, qu'aussitot que le 
 contrat de vente est parfait, la chose vendue devient aux risques de 
 
PERICULUM BEL 77 
 
 the profits, emoluments, fruits and benefits generally de- 
 rivable from it belong to the purchaser from the same 
 moment ^- The more precise meaning of these expressions, 
 and the bearing of this important and somewhat singular 
 principle on conditional sales, and sales in which the goods 
 or the amount of the purchase money are not yet exactly 
 determined, requires some further elucidation. 
 
 'Periculum' denotes any damage or injury, including Meaning 
 entire loss or destruction, which may befall the subject- cukim rei ; 
 matter of the contract after its conclusion : whether it is 
 due to natural causes or accident, or to human action, is 
 immaterial, though most of the illustrations which are 
 given of it are of the first kind ^- It is important further 
 to distinguish between the risk of destruction or entire 
 loss (periculum interitus) and the risk of mere damage or 
 depreciation not amounting to destruction (periculum de- 
 teriorationis ^), for, as we shall see, there are exceptional 
 eases in which one of the parties has to bear risk of the 
 one kind, and the other that of the other. As a rule, 
 however, they go together. 
 
 The property purchased is at the purchaser "s risk as it passes 
 soon as the emptio is ' perfecta.' The word ' perfecta ' emptio L 
 here means something more than that the parties are 'P'*'*''*^' 
 bound by the contract because they are agreed upon the 
 goods to be sold and the price to be paid : the contract 
 may be quite complete for the purpose of producing the 
 
 I'acheteur, quoiqu'elle ne lui ait pas encore ^te livree, 307. By the 
 Code Civil, Art. 1 583, an agreement to sell or buy ' lorsque la vente est 
 pure et simple, et qu'elle a pour objet un corps certain ' ipso facto 
 transfers property in the goods sold to the purchaser ' a I'egard du 
 vendeur,' and they are at his risk on the simple ground that ' damnum 
 sentit dominus.' 
 
 ^ Nam et commodum eius esse debet cuius peiiculum est: Inst, 
 loo. cit. 
 
 ^ Dig. 18. 6. I. pr. and i : ib. 8 : ib. 12: ib. 16. In Dig. ib. 15. i 
 there, is a case of theft. 
 
 ' Dig. 18. 6. I. pr. : ib. 4. pr. and I : ib. 8. pr. 
 
78 
 
 PERIOULUM EBI. 
 
 Grounds 
 on which 
 it may be 
 ' imper- 
 fecta ' : 
 (i) agree- 
 ment not 
 yet com- 
 pletely 
 binding, 
 liccause 
 the price 
 is not 
 fixed, 
 or there 
 is a sus- 
 pensive 
 condition, 
 
 obligations which ordinarily result from it, and yet not 
 ' perfect ' for the purpose of transferring the risk from the 
 vSndor to the purchaser ^ : 
 
 necesfario sciendum est, quando perfecta sit emptio : tune 
 enim sciemus, cuius periculum sit : nam perfecta emp- 
 tione periculum ad emptorem respieiet. et si id quod 
 venierit appaveat, quid, quale, quantum sit, sit et pretium, 
 et pure venit, perfecta est emptio ^- 
 
 The contract may be imperfecta, and the risk be still 
 with the vendor, on two grounds. 
 
 I. Because the agreement is not yet completely binding 
 in itself. For instance, the parties may have come to terms 
 about the goods to be bought, but have differed in opinion 
 as to what would be a fair price, and agreed to refer this 
 to a third party, who has not yet said what ought to be 
 paid ^ : or the contract may have been made subject to 
 a suspensive condition, or condition precedent, which has 
 not yet been satisfied*, as where one agrees to buy a 
 particular horse at a certain price if he shall win a par- 
 ticular race : for until satisfaction of the condition there 
 is no obligation'. In this case, if the subject-matter of 
 the sale is entirely destroyed before the condition is satis- 
 fied, the loss falls on the vendor, and the purchase money, 
 if paid, can be recovered back, because the contract has 
 never come to anything : whereas if it is merely damaged 
 by accident, or becomes less valuable through the operation 
 of natural causes or by the act of man without the vendor's 
 fault, the loss falls on the purchaser if the condition is in 
 fact satisfied, and he cannot refuse to pay the purchase 
 money in fuU, or recover back any portion of it, if it has 
 
 ' See Code Civil, Art. 1585, cited infra. 
 
 '' Dig. 18. 6. 8. pr. : Pothier, 308. ' p. 70 supr. 
 
 * Cod. 4. 48. 5. 
 
 •'' Ante conditionem non recte agi, cum nihil ad interim debeatur; 
 Dig. 20. I. 13. 5. 
 
PERICULTJM RBI. 79 
 
 been paid, because the condition relates back to the moment 
 at which the provisional agreement was concluded ^ : 
 
 qnod si sub conditione res venierit, si quidem defecerit 
 conditio, nulla est emptio, sicuti neo stipulatio : quod si 
 exstiterit, Proeulus etOctavenus emptoris esse perieulum 
 aiunt : idem Pomponius libi-o ix probat. quod si pendente 
 conditione . . . res tradita sit, emptor non poterit eam 
 usueapere pro emptore, et quod pretii solutum sit repe- 
 tetur: et fructus medii temporis venditoris sunt, sicuti 
 stipulationes et legata conditionalia perimuntur, si pen- 
 dente conditione res extincta fuerit. Sane si exstet res, 
 licet deterior efiecta, potest diei esse damnum emptoris^. 
 
 It need hardly be pointed out, that if the contract is 
 made subject in the alternative to two suspensive conditions 
 which are absolutely contradictory and admit of no third 
 possibility '', it is deemed to be an absolute contract, on the 
 principle that 'qui sub conditione stipulatur quae omni- 
 modo exstatura est pure videtur stipulari *.' If the sale is 
 unconditional, and by a subsequent agreement a suspensive 
 condition is annexed, this does not make the original 
 contract ' imperfect ' by relation back, so that if before 
 the annexation of the condition the goods have perished 
 unknown to the parties, the loss has to be borne by the or tiie 
 purchaser ^. Lastly, the contract may not be as yet abso- has reser- 
 lutely binding because the purchaser has reserved the right Jfght'of 
 of examining, testing, or sampling the goods ^, so that its examining 
 
 the goods : 
 
 ' Conditio existens ad initium negotii retrotraHtur : retrotrahitur 
 impleta conditio ad conventionis diem : Dig. 20. 4. ii. i : 46. 3. i6 : 
 30. 69. I : 50. 17. 18. 
 
 " Dig. 18. 6. 8. pr. : cf. Dig. 23. 3. 10. 5 : Pothier, 311. 
 
 ' Dig. 18. 6. 8. I. * Dig. 46. 2. 9. I. 
 
 ' Dig. 18. 5. 7. pr. 
 
 ° This condition is implied in sales of certain descriptions of goods 
 by the Code Civil, Art. 1587 : a I'egard du vin, de Ihuile et des autres 
 choses que Ton est dans I'usage de goMer avant d'en fairs I'achat, il n'y 
 a point de vente tant que I'acheteur ne les a pas goiitees et agr^ees. 
 In the French law of Pothier's time (310) it would seem that, following 
 
8o PEEICULUM JBBI. 
 
 various perfection may be said to depend on the condition of his 
 
 cuyes of . ™ t* T ' T • ■ • 
 
 tiiis. approval, ihe precise form of this condition varies m 
 
 different cases according to the language or the presumed 
 intention of the parties, and the answer to the question at 
 whose risk the goods are, in respect both of destruction 
 and of deterioration, turns on the form in which it is 
 expressed or intended by them. There are three possible 
 alternatives. The goods may be agreed to be bought 
 (a) subject to the fulfilment of a suspensive condition 
 (e.g. 'si placuerit, erit tibi emptus^'): or (b) subject to 
 a resolutive condition proper (e. g. ' si displicuerit, erit tibi 
 inemptus ^ ') : or (c) subject to a pactum displicentiae (e. g. 
 ' ut res si displicuerit redderetur ^ '), that is, a resolutive 
 condition not operating i2:)so facto to avoid the sale, but 
 entitling the purchaser to return the goods and so avoid 
 it if he shall so choose. 
 
 In the case of (a) a suspensive condition, the goods, as 
 has been pointed out, are at the vendor's risk in respect of 
 deterioration no less than of destruction pendente con- 
 ditione, until the purchaser signifies his approval of them, 
 and his discretion in this matter is absolute *. If, how- 
 ever, a time has been fixed within which he must express 
 himself satisfied with the goods, if he wishes to do so at 
 all, and he is disabled from doing so by the vendor's fault, 
 the goods remain at the risk of the latter : 
 
 si quis vina vendiderit et intra diem certum degustanda 
 
 the Civil Law, the right of testing must be expressly reserved, though 
 no doubt in sales of this kind very slight expressions would be con- 
 strued as indicative of the required intention. 
 ^ Inst. iii. 23. 4 : Dig. 19. 5. 20. i. 
 
 ^ Dig. 18. I. 3. 3 J)ig jg 5 g 
 
 * The Code Civil, Art. 1588, enacts 'la vente faite a I'essai est 
 toujours presumee faite sous une condition suspensive ' : and a ' vente 
 a I'essai ' is defined by Demante (Cours analytique de Code Civil, vii. 
 p. 15) as ' une vente faite avec cette clause que I'acheteur usera de la 
 chose pendant un certain temps, et qu'il declarera ensuite si la chose 
 lui convient ou no lui convient pas.' 
 
PEEIOULUM EEL 8 1 
 
 dixerit, deinde per venditorem steterit, quominus degus- 
 tarentur, . . . arbitror debere diei emptionem manere, peii- 
 culum autem ad venditorem respicere etiam ultra diem 
 degustando praefinitum, quia per ipsum factum est ^■ 
 
 If, on the other hand, the fault in such a case is with 
 the purchaser himself, the prevailing view is that the risk 
 is transfen-ed to him as soon as the day has passed, but 
 it would certainly seem more in consonance with the 
 general theory of suspensive conditions to say that the 
 whole contract falls to the ground through failure of the 
 condition ^ : and if the goods have been delivered to 
 the purchaser for inspection or trial, and he fails to express 
 his disapproval and return them within the period fixed, 
 his conduct will apparently be deemed an acceptance by 
 implication ^. If no time has been fixed at all within 
 which the purchaser is to try or examine the goods, he 
 must try them as soon as an opportunity to do so is given 
 him by the vendor : and if when such opportunity is given 
 he does not do so and declare himself within a reasonable 
 time, the condition is taken to have failed, and the vendor 
 may sell them to some one else or otherwise dispose of them 
 as he may please *. The putting of a seal upon goods, or 
 marking them in any other way, is not construed as evi- 
 dence of approval by the purchaser, but is to be taken 
 merely as a means of identification ^, and in itself does not 
 suffice to transfer the risk to him from the vendor ®. 
 
 ' Dig. i8. 6. 4. pr. ^ So Vangerow, iii. p. 437. 
 
 * Arg. Dig. 19. 5. 20. pr. 
 
 * 'krg. Dig. 18. 6. 4. 2 : Treitschke, Kaufcontract, p. 196. 
 = Dig. 18. 6. 1.2. 
 
 " Dig. 18. 6. I. pr. A similar question tas arisen in England, 
 ■whether marking goods with his name by the purchaser, or by some 
 one else with his consent, is a sufficient acceptance to satisfy § 17 of 
 the Statute of Frauds : it is held to be an ' acceptance ' but not • a 
 ' receipt,' Bill v. Bament, 9 M. & W. 36, and other cases cited by Ben- 
 jamin, p. 157. Does marking goods with the buyer's name divest the 
 
 G 
 
82 
 
 PEBICULUM EEI. 
 
 a resolu- 
 tive con- 
 dition 
 proper : 
 
 a pactum 
 ilisplicen- 
 tiae. 
 
 In the case of (&) a resolutive condition proper, the goods 
 are at the purchaser's risk, so far as entire loss or destruc- 
 tion goes, from the moment the contract is concluded, while 
 the risk of damage or deterioration remains with the vendor, 
 because in the event of such damage or deterioration the 
 purchaser may say that he wQl not have them, and so 
 rescind the contract. If a term has been fixed within which 
 he must (if at all) avoid the contract by expressing his 
 disapproval, and the time elapses without his doing so, 
 and there is no default in the vendor, the condition is 
 deemed to have failed, and the contract ceases to be void- 
 able : if no such term has been fixed, the failure of the 
 purchaser to test the goods, or (if he has tested them) to 
 express his dissatisfaction within a reasonable time, pro- 
 duces the same effect. 
 
 In the case of (c) a pactum displicentiae, if a term has 
 been fixed within which the purchaser may return the 
 goods and cancel the sale, he is at liberty to do so and 
 redemand his purchase money (if paid) at any moment 
 until such term has elapsed, and during that period the 
 goods are entirely at the risk of the vendor ^. If no such 
 term has been agreed upon, the law allows one of sixty 
 days, after the lapse of which, unless the goods have been 
 
 vendor's lien ? Goodall v. Skelton, 2 H. Bl. 316 : Dixon v. Yateg, 5 B. & 
 Ad. 313 : Benjamin, p. 817. 
 
 It is obyious that if the purchaser reserves no right of examining or 
 testing the goods, they are entirely at his risk from the moment of the 
 purchase (Dig. 18. 6. i. pr. : ih. 4. i), though the passages referred to 
 say that there is an exception to the rule if the vendor has expressly 
 undertaken the risk (i. pr.). In this case it is said that the risk is with 
 him for so long as has been agreed upon, or until the goods have been 
 approved by the purchaser. But why, when there has been no condi- 
 tion of approval, should the perfection of the contract depend on such 
 approval being signified ? One solution consists in supposing that in 
 a purchase of wine in bulk such approval is an implied term in the 
 contract : but this seems irreconcileable with Dig. 18. 6. 15. 
 
 ' Dig. 21. I. 31. 24 : cf. ib. 47. i & 48. 
 
PEEIOULUM EEI. 83 
 
 returned, the contract ceases to be voidable, and the risk 
 passes to the purchaser ^. 
 
 II. The risk may still be with the vendor because the The goods 
 goods which are the subject matter of the contract are not Tpecfficaiiy 
 specifically ascertained or defined, or because the exact ^^^I^t^ . 
 amount of the purchase money is not yet determined. The 
 simplest illustration is an agre'ement to buy such or such 
 a weight, measure, or number of a certain article at present 
 defined only generically, and the goods have not yet been 
 weighed, measured, or counted. The distinction has been 
 drawn in the preceding chapter between a purchase of a 
 number of things in the aggregate for a single price (emptio 
 per aversionem) and a purchase of a number of things, or 
 even of a single thing consisting of similar parts (such as 
 a cask of wine or an estate) at so much for each thing or 
 part^. In the first case the whole is at the purchaser's 
 
 ' Dig. 21. I. 31. 22 & 23. Most of the illustrations given in the 
 authorities of this ' emptio ad gustum ' are drawn from the wine 
 trade, and Cato (de re rust. 148) says that purchases of wine in bulk 
 were seldom made without some such condition. According to 
 Vangerow (iii. p. 434), following Goldschmidt, this particular case of 
 wine was governed by special rules, which he states thus : 
 
 (i) Tlie presumption is in favour of the 'gustus' being a resolutive 
 condition (Dig. 18. I. 34. 5), so that in the absence of evidence to the 
 contrary the periculum interitus is with the purchaser. 
 
 (ii) The purchaser may not reject the wine arbitrarily, but only 
 because the trade would pronounce it to be of inferior quality (Dig. 18. 
 6. I. pr. ; ib. 4. pr. & i : ib. 15 : of. Cato, loc. cit. : ' viri boni arbitratu 
 degustato '). 
 
 (iii) If a time is agreed upon within which the wine is to be tasted, 
 and through the vendor's fault it is not done, the contract is not avoided, 
 and the vendor has still to bear the risk of deterioration (Dig. 18. 6. 4. 
 pr.). If the fault is with the purchaser, or if he tastes the wine hut 
 still does not signify his disapproval within the time fixed, the con- 
 tract ceases to be voidable, and the whole risk is with him. If no 
 time has been fixed at all, he must taste the wine and make up his 
 mind as soon as the vendor gives him an opportunity : if he does not 
 do so, the condition is taken to have failed. 
 
 ^ Pothier, 309, lays down three rules for determining whether a sale 
 
 G a 
 
84 .PEEIOULUM REI. 
 
 risk as soon as they are agreed upon the amount of the 
 
 purchase money : 
 
 ill his quae pondere, numero, mensurave constant, veluti 
 frumento, vino, oleo, argento, modo ea servantur, quae in 
 ceteris, ut, simul atque de pretio convenerit, videatur per- 
 fecta venditio . . . nam si omne vinum, vel oleum, vel 
 frumentum, vel argentum, quantumeunque esset, uno 
 pretio venierit, idem iuris est quod in ceteris rebus ^. 
 
 In the second case it is otherwise : the sale is imperfect, 
 so far as the transfer of the risk to the purchaser is con- 
 cerned, until the counting, weighing, or measuring has 
 taken place (' quia venditio quasi sub hac conditione vide- 
 tur fieri 2).' It is immaterial whether the purchase is of 
 the whole estate, or of the whole stock of goods, at so much 
 
 is per aversionem or ad mensuram. It is ad mensuram (a) lorsque le 
 prix est expressement convenu pour chaquo mesure : soit que le con- 
 trat ports qu'on vend tant de muids de bled qui sont dans tel grenier, 
 a raison de tant par muid : soit qu'il porte qu'on vend un tas de bled 
 qui est dans un tel grenier qui contient dix muids, a raison de tant le 
 muid : (&) lorsqu'on vend tant de mesures d'une telle chose, comme 
 lorsqu'il est dit qu'on vend dix muids de bled pour cinq cent Kvres, ce 
 prix etant cense n'etre que le total des prix pour lesquels chaque muid 
 est vendu. It is per aversionem lorsqu'on vend pour un seul prix, non 
 tant de mesures d'une telle chose, mais une telle chose qu'on dit contenir 
 tant de mesures, comme lorsqu'il est dit qu'on vend pour la somme de 
 mille livres un tel pre qu'on assure etre de la contenance devingt arpens. 
 ' Dig. 18. I. 35. 5 : Cod. 4. 48. 2. Mais si ces choses n'ont pas ete 
 vendues au poids ou a la mesure, mais ijer aversionem, c'est-a-dire, en 
 bloc, par un seul et meme prix, en ce cas la vente est parfaite deS 
 I'instant du contrat, et des ce temps ces choses, de meme que toutes les 
 autres, sont aux risques de I'acheteur : Pothier, 308. 
 
 ■^ Lorsque des marohandises ne sont pas vendues en bloc, mais au poids, 
 au compte ou a la mesure, la vente n'est point parfaite, en ce sens que les 
 choses vendues sont aux risques du vendeur jusqu'a ce qu'elles soient 
 pesees, comptees ou mesurees, mais I'acheteur pent en demander la 
 delivrance ou des dommag-es et interets, s'il y a lieu, en cas de I'inex^- 
 cution de I'engagement. Si au contraire, les marchandises ont ete 
 vendues en bloc, la vente est parfaite, quoique les marchandises 
 n'aient pas encore ete pesees, comptees, ou mesurees : Code Civil, Arts. 
 1585, 1586. 
 
PERICULUM EEI, 85 
 
 per unit^ (so much an acre, so much a gallon, so much 
 a quarter, &c.), or of so many units out of the whole (as 
 ' sixty gallons of your stock of brandy ') either at a lump 
 sum or at so much per unit. For instance, in the latter 
 case one may buy a hundred quarters of wheat from a 
 stock in a given granary, but the whole stock is at the 
 vendor's risk until the hundred quarters have been mea- 
 sured out and appropriated to the purchaser (unless the 
 latter hinders the vendor from doing it), for until that has 
 been done it is uncertain what particular part of the stock 
 the purchaser is to have ^- Thus the rule is, that whenever 
 
 ■^ In this case, under tlie Code Civil, the goods belong to the purchaser 
 from the moment the contract is concluded, and yet they are at the 
 vendor's risk until measured, weighed, or counted. ' La vente est faite 
 sous une condition suspensive, o'est-a-dire, subordonnee a I'operation du 
 pesage, du oompte ou du mesurage. Les risques alors retombent, en 
 vertu des principes, sur le vendeur dehiteur du corps certain promis, et 
 cela n'empeche pas I'acheteur de devenir proprietaire sous cette con- 
 dition' : Demante, Cours analytique de Code Civil, vii. p. 10. 
 
 ^ Dig. 18. I. 35. 7 : Pothier, 308. Demante is of opinion that if the 
 whole stock perishes without the vendor's fault before the selec- 
 tion has been made, the periculum interitus ought to fall on the pur- 
 chaser in the ratio of the proportion of what he agreed to buy to the 
 whole : ' que les risques soient pour le vendeur tant qu'il n'a peri 
 qu'une partie des marchandises parmi lesquelles devaient etre prises 
 celles qu'il fallait livrer, c'est I'application a I'espece des theories sur 
 les dettes de quantite. Pourquoi le oreanoier ne perd-il pas sa creance 
 quand le debiteur de quantite a perdu les choses qui lui appartenaient 
 et qui faisaient partie du genre promis ? C'est qu'il reste d'autres objets 
 du genre promis, que le debiteur n'avait pas specialement promis les 
 choses qui lui appartenaient, et que son obligation peut encore etre 
 executee. Mais si le genre venait a perir tout entier, par exemple a 
 etre retire du commerce, le debiteur serait libere. Dans I'espece qui 
 nous occupe, la dette a pour objet une chose faisant partie d'un genre 
 limite, non pas 10 moutons ou 10,000 kilogrammes de charbon ingenere, 
 mais 10 des moutons qui font partie de telle bergerie, 10,000 kilo- 
 grammes de charbon qui se trouvent dans telle cave. Le genre, ce n'est 
 pas tous les moutons ou tout le charbon existant sur la terre, c'est 
 une petite collection restreinte de moutons ou de charbon, ceux qui 
 sont dans telle bergerie ou dans telle cave : c'est un genre hmite. Si 
 done tous les moutons de la bergerie.ont peri, ou tout le charbon de la 
 
86 PEEICTILUM EEI. 
 
 a contract of sale requires for its perfection the counting, 
 weighing, or measuring of the article bought, for the pur- 
 pose of determining either what part of a given whole the 
 purchaser is to have, or what is the size or quantity of the 
 aggregate or portion of an aggregate bought, and how much 
 consequently has to be paid, the risk of deterioration no 
 less than of destruction is with the vendor until that has 
 been done ^. 
 
 Another possible case, which does not appear to have 
 occurred to the Roman lawyers, is the sale of a determinate 
 quota of the goods in a given stock or warehouse for a 
 lump sum — e. g. of one quarter of all the wines now in my 
 cellar for the sum of £ioo. It may be conjectured that 
 this would be regarded as a purchase per aversionem of 
 an undivided share : the sale would be ' perfecta,' and the 
 risk with the purchaser in the ratio which the share he has 
 bought bears to the whole stock ^ 
 111, -ailing When it is said that the sale is not perfect until the 
 !'„„ eountJ goods have been weighed, counted, or measured, the mean- 
 lui;. or ^„ Qf these expressions is not entirely obvious. The view 
 ins ■ the that it is enough for the vendor himself and alone to weigh, 
 count, or measure them, without the presence of the pur- 
 chaser or of any one acting on his behalf, has little to 
 recommend it : the authorities speak of the ai"ticle being 
 arfnumerata, ac?pensa, admensa, and against it also is 
 the mention of 'mora emptoris in mensura faciendaV 
 
 cave, les risques doivent peser sur I'acheteur comme dans I'hypothese 
 de la vente en bloc ' : Cours analytique de Code Civil, vii. pp. ii. 12. 
 
 ' Cod. 4. 48. 2. 
 
 ' La perte d'une partie des marcliandises serait subie pourmoitie par 
 racbeteur, car la obese vendue ayant ete non pas telle ou telle partie 
 materielle du bloc de marchandises. maisla moitie abstraite de ce bloc, 
 la perte d'une partie des objets contenus dans le magasin doit produire 
 par rapport a I'acbeteur le meme effet, proportion gardee, que s'il a^ait 
 achete en bloc toutes les marchandises : Demante, Cours analytique de 
 Code Civil, vii. p. 13. 
 
 » Dig. 18. 6. 5: Cod. 4. 48. 2. 
 
 goods : 
 
PEETCULUM RE I. 87 
 
 Almost equally untenable is the theory that the vendor 
 must have performed his part of the contract by sending 
 or delivering the goods to the purchaser, though this is 
 supported by the word 'tradantur' in the passage of the 
 Code last referred to : and the true meaning of the texts 
 appears to be that they must be weighed, counted, or mea- 
 sured in the presence of the purchaser or of some one 
 acting on his behalf, so that he is enabled to examine them 
 and see whether they are free from defects, and are of the 
 kind contemplated by the contract. 
 
 The vendor is not excused from the obligation of taking vendor's 
 care of the thing because it is not yet at the purchaser's Tufufh'"''' 
 risk \ for the contract, even though not ' perfect ' in the ''^^''^■ 
 sense of this chapter, imposes on both parties the usual 
 duties which arise from it : in other words, if it is damaged 
 or destroyed in the meanwhile, and the vendor is in any 
 way to blame, he not only loses his claim to the purchase 
 money (as in the case of damage or destruction brought 
 about by accident or the operation of natural causes), but 
 he must also indemnify the purchaser for all loss which 
 his misconduct or negligence may have .occasioned him : 
 and the degree of care which he must show is that ordi- 
 narily required from vendors and purchasers alike. If, 
 however, the purchaser, by his own delay or negligence, 
 has hindered the due weighing, measuring, or counting 
 which would transfer the risk to him from the vendor, the 
 latter is no longer required to display such care : he be- 
 comes answerable only for wilful misconduct and gross 
 negligence ^. The purchaser must also indemnify him for 
 all loss or damage which he may suffer through such delay 
 or negligence : full illustrations of this principle are cited 
 below from the authorities ^. 
 
 ' Dig. 18. 6. I. I. : ib. 2. i. ^ Dig. 18. 6. 5 : ib. 18. 
 
 ' Licet autem venditori vel effundere vinum, si diem ad metiendum 
 praestituit, nee intra diem admensum est : eifundere autem non statim 
 poterit, priusquam testando denuntiet emptori, ut aut toUat vinum, 
 
88 
 
 PERIOTJLUM EEI. 
 
 Rules as to 
 the risk 
 when the 
 vendor 
 has the 
 . right of 
 selection, 
 in sales 
 in the al- 
 ternative, 
 
 The principles are the same in purchases of a thing 
 determined only by genus, which has to be specifically 
 ascertained by the vendor's selection^, and in purchases 
 concluded in the alternative. In the latter the vendor's 
 right of selection continues only so long as the exercise of 
 it remains possible, and if the various articles from which 
 one was to be chosen are reduced by natural causes, or 
 otherwise without the vendor's fault, to one, that one is 
 forthwith at the purchaser's risk ; and the rules are pre- 
 cisely the same if the selection had been given by agreement 
 to the purchaser himself: 
 
 si emptio ita facta fuerit : ' est mihi emptus Stichus aut 
 Pamphilus,' in potestate est venditoris, quem velit dare, 
 sicut in stipulationibus, sed uno mortuo qui superest 
 daiidus est. Et ideo prioris periculum ad venditorem, 
 posterioris ad emptorem respicit, sed et si pariter de- 
 cesserunt, pretium debebitur : unus enim utique perieulo 
 emptoris vixit. idem dieendum est etiam, si emptoris fuit 
 arbitrium quem vellet habere ^. 
 
 aut sciat futurum utvinum elFunderetur. Si tamen, cum posset effundere, 
 non effundit, laudandus est potius. Ea propter mercedem quoque do- 
 liorum potest exigere, sed ita demum, si interfuit eius inania esse vasa, 
 inquibus vinum fuit, veluti si locatums ea fuisset, vel si necesse habuit 
 alia conducere dolia. Commodius est autem oonduoi vasa, nee reddi 
 vinum, nisi, quanti conduxerit, ab emptore reddatur : aut vendere 
 vinum bona fide, id est, quantum sine ipsius incommode fieri potest 
 operam dare, ut quam minimo detrimento sit ea res emptori. Si doliare 
 vinum emeris, nee de tradendo eo quioquam convenerit, id videri actum, 
 ut ante evacuaretur, quam ad vindemiam opera eorum futura sit 
 necessaria : quod si non sint evacuata, faciendum, quod veteres puta- 
 verunt, per corbem venditorem mensuram facere, et effundere. Veteres 
 enim hoc propter mensuram suaserunt, si quanta mensura esset non 
 appareat, videlicet, ut appareret, quantum emptori perierit. hoc ita 
 verum est, si is est venditor, cui sine nova vindemia non sint ista va.sa 
 necessaria, si vero mercator est, qui emere vina et vendere solet, is dies 
 spectandus est, quo ex commodo venditoris tolli possunt : Dig. i8. 6. i. 
 3 & 4 : ib. 2. 
 
 ' If such contracts are really sales at all on Roman principles : see 
 p. 29 supr, 
 
 " Dig. 18. I. 34. 6 : Pothier, 312. 
 
PEEICPLUM REI. 89 
 
 Nor, except in one case, is there any deviation from the and in 
 general rule where the property which the vendor has sold alienae. 
 was not his to sell. If it is destroyed without any fault on 
 his part before delivery to the purchaser, the loss falls on 
 the latter, and he must nevertheless pay the purchase 
 money. For if the article had been in fact delivered, and 
 then had been destroyed before the rightful owner proved 
 his title to it, it is well established that he would have had 
 to pay it^, and the vendor's rights are not prejudiced by a 
 postponement in delivery for which he is not to blame. 
 But where he has fraudulent y represented the property to 
 be his own, this rule does not apply ^. 
 
 If, while the goods are at the purchaser's risk, they are Vendor's 
 
 obligation 
 
 lost, destroyed, or damaged by the acts of third persons for to assign 
 which the vendor cannot be in any way held answerable, ^clion ° 
 the latter is bound to assist the purchaser to the best of where the 
 
 '■ _ _ goods are 
 
 his ability in recovering them if lost, or in obtaining at the pur- 
 damages in cases of destruction or injury, and therefore to rigj;. 
 assign to him all rights of action, whether in rem or in 
 personam, which may be vested in him and by which any 
 of those objects is attainable ^ If he cannot bring such 
 actions through not having been owner of the goods, and 
 had not informed the purchaser of this fact, he must 
 indemnify the latter as fully as if he had been evicted by 
 legal process * though if they are confiscated by the State 
 before delivery he is bound only to return the purchase 
 money ^ 
 
 Supposing the vendor sells the same article to two 
 persons in succession, and it is accidentally destroyed 
 before delivery to either, the loss falls on the second 
 purchaser, and he must pay the purchase money, because 
 
 • Dig. 21. 2. 21. pr. & I : Cod. 8. 45. 3 & 26. 
 ^ Dig. 21. 2. 21. pr. : 19. I. 30. 1. 
 
 ' Inst. iii. 23. 3 : Dig. 18. 6. 14 : 19. I. 3». pr. 
 
 * Dig. 18. 1. 35. 4- '' I'ig- 19- 2. 33- 
 
90 PERICULUM BEI. 
 
 the vendor cannot assert any rights against a first pur- 
 chaser after selling to a second, whether the second sale 
 was fraudulent as against the first, or was made in good 
 faith ^. But if the sale to the second purchaser is fraudulent 
 as against him, the loss will fall on the vendor^. 
 Exeep- The general rule which throws .the risk on the purchaser 
 
 the rale as from the moment that the contract is ' perfect ' may be 
 *** ^''' ■ overridden by express agreement to the effect that it shall 
 remain with the vendor up till the moment of delivery ^ : 
 and it has no application where the loss, destruction, or 
 depreciation of the goods might have been avoided if the 
 vendor had taken due care of them *, or where the vendor 
 makes delay in delivery, and the damage or loss results 
 from such delay ^. 
 Theories The rcason why the civil law made such a departure 
 
 as to its n 1 1 • • 1 c • • 1 • 1 
 
 rationale, from fundamental principles" in casting the risk, as a 
 general rule, on the purchaser from the moment that the 
 contract was concluded, has been much debated. According 
 to one view'', the basis of the rule was Equity. If the 
 vendor is bound to show the greatest possible care in the 
 charge of the property from the moment that the contract 
 is binding, so that he is answerable for any loss, damage 
 or deterioration which the exercise of such care could have 
 prevented, it is only reasonable that if it is lost, destroyed, 
 or damaged before delivery Avithout his fault, he should 
 nevertheless be entitled to the purchase money. Pothier's ' 
 
 ^ So Windscheid, Lehrbuch, § 390, note 17. Vangerow, iii. p. 439, 
 thinks lie may demand the purchase money from either at his option, 
 but not from both. 
 
 ^ Arg. Dig. 21. 2. 21. pr. : 19. i. 30. i. 
 
 ' Dig. 18. I. 35. 4 : 18. 6. I. pr. 
 
 * Inst. iii. 23.3 : Dig. 18. 6. 12 : 19. i. 36. 
 
 = Cod. 4. 48. 4 & 6. 
 
 ° Usually expressed in the maxims, damnum sentit dominus : res 
 perit domino. • 
 
 ' Gluck, Pandekten, 17. p. 132 sq. * Pothier, 307. 
 
PEBICULUM RET. 9 1 
 
 explanation is the consensual character of the contract : 
 the purchaser promises to pay the price in exchange, not 
 for the vendor's conveyance, but for his promise to convey, 
 and if the vendor is disabled from performing that promise 
 by causes beyond his control, there is no reason why the 
 purchaser also should be released from a duty whose 
 performance remains perfectly possible. Others^ regard 
 the rule as a survival of the time when the contract of sale 
 is believed by them to have been Real, not Consensual, or 
 base it on a fiction that the property has actually been 
 delivered^, which looks very like giving the rule as a 
 reason for itself Probably Windscheid^ is correct in 
 attributing it to the alienatory character of the contract : 
 so far as the parties are concerned, the goods even before 
 delivery are deemed to have ceased to be the vendor's, and 
 to have become the purchaser's, for (as between the parties) 
 a man is regarded in law as already having that for which 
 he can bring an action : id ' apud se ' quis ' habere ' videtur, 
 de quo habet actionem : habetur enim quod peti potest *. 
 
 ' E. g. Pernice, Labeo, i. p. 457 sq. 
 
 ' Mommsen, Beitrage zum Obligationenrecht, i. p. 349. 
 
 ^ Lehrbuch, §§ 321, 390. 
 
 ■* Dig. 50. 16. 143. The English law as to the question at whose risk 
 the goods are is in substance much the same as the Civil Law, but the 
 principle ia different. In respect of sales, as of other matters, we 
 follow the maxim ' res perit domino,' and whether the goods are 
 at the risk of the purchaser depends on whether (quite apart from 
 delivery) the property in them has passed to him — a point which 
 will be dealt with in connection with the next chapter. In Simmons 
 V. Stcift (5 B. & C. 862) Bayley J. said ' generally, where a bargain is 
 made for the purchase of goods, and nothing is said about payment 
 or delivery, the property passes immediately, so as to cast upon the 
 purchaser all future risk, if nothing remains to be done to the goods.' 
 For examples of buyer's risk see Bugg v. Minet, 11 East, 210 : Sweeting 
 V. Turner, L. R. 7 Q. B. 310: of seller's, Simmons y. Swift, cit. : Head 
 V. Tattersall, L. R. 7 Ex. 14: Elphick\. Barnes, 5 C. P. D. 326. But 
 in the sale of a specific chattel conditionally, the property and the 
 risk remain with the vendor till the condition is satisfied, unless the 
 purchaser either expressly or by implication assumes the risk from an 
 
92 COMilODDM EEI. 
 
 Meaning It remains to consider more precisely what is meant by 
 dum'reTr the tei-m ' commodum ' when it is said, for instance, 
 
 post perfectam emptionem omne commodum ac incom- 
 modum, quod rei venditae eontingit, ad emptorem 
 pertinet ^. 
 
 The purchaser's rights in respect of ' commodum rei ven- 
 ditae' may be dealt with under the heads of fruits and 
 accessions, 
 the pur- He is entitled to aU the fruits of the property which he 
 entitled to has purchased. Fruits which have acquired an independent 
 fraits and g^istence by separation before the perfection of the contract 
 from the are the property of the vendor ^ : fruits not yet separated, 
 the con- such as unbom lambs or calves, or standing crops, or 
 concluded, hanging gTapes, belong, whether ripe or umipe, to the 
 purchaser ^, so that if he is disabled from gathering them 
 through the vendor's delay in making delivery he is en- 
 titled to damages *- The right to what are termed ' fructus 
 
 earlier moment, as in Mariineau ■• . KUching, L. R. 7 Q. B. 436 : and 
 where delivery has been delayed through the default of eitlier buyer 
 or seller the goods are at the risk of the party making default as re- 
 gards such loss as would not have occurred but for such default : 
 Maiiitieaii v. Kitching, cit. at p. 456 : Chalmers, Sale of Goods, p. 35. 
 
 .Scotch law on the subject is practically in all respects the same as 
 that of Rome. ' That the risk of the thing is vrith the buyer does not, 
 as in England, proceed on the ground that the property is transferred : 
 but the engagement of the seller being to deliver the thing sold, and 
 the right of the buyer being ad rem specif cam, the engagement is dis- 
 charged, and the right extinguished, by the thing perishing without 
 fault . , . . But the risk is continued on the seller, where there is undue 
 delay in making delivery without fault on the buyer's part, where there 
 IS an express or implied undertaking of the risk by the seller, as to 
 deliver at a certain place, or where anything remains to be done in 
 completing, ascertaining, or identifying the thing to be delivered': 
 Bell's Principles of the Law of Scotland, §§ 87, 88. 
 
 " Cod. 4. 48. 1 : Inst. iii. 23. 3, cited p. yy supr. 
 
 ^ Cod. 4. 49. 2. 2. 
 
 ^ Cod. 4. 49. 13, ib. 16 : Dig. 19. i. 13. 10. 
 
 ' Arg. Dig. 19. I. 21. 3. 
 
COMMODITM EEI. 93 
 
 civiles' — money paid for the use of a thing corporeal or 
 incorporeal, moveable or immoveable — is not so simple a 
 matter. If at the time at which the contract was made 
 the property was under lease or hire to a third person, it 
 would seem that a distinction must be drawn, according as 
 the thing is one which can be used always and at any 
 time, such as a house, a slave, or a carriage, or one which 
 produces its fruits fi-om which the rent is paid at regular 
 intervals, such as a vineyard or land otherwise under 
 cultivation. In the first case apparently the hire money 
 will belong to the vendor before, and ' to the purchaser 
 after, the perfection of the contract^. In the second case 
 the authorities strongly support the view that the rent 
 belongs to the vendor throughout the currency of the 
 lease ^, though the reason given for this by the com- 
 mentators ^, viz. that the purchaser can break the lease, 
 obviously applies to the one case no less than to the other. 
 Others * hold that if the contract was perfected after the 
 gathering of the fruits, the rent belongs to the vendor, but 
 that all rent accruing thereafter in the future belongs to the 
 purchaser. It seems to be assumed by these writers that 
 in the passage cited Ulpian is speaking only of rent 
 actually due ®, and that in no case could rent subsequently 
 accruing belong to the vendor: but there would be no 
 injustice in this if the purchase money were reduced in 
 consideration of the land being subject to a lease, upon 
 which the purchaser would naturally insist if he was 
 aware of the facts ; while if he was not, and was kept 
 
 ' Arg. Dig. 19. I. 13. 13 : cf. 7. i. 26. 
 
 ^ Si in locatis ager fuit, pensiones utique ei cedent qui loca- 
 verat . . . nisi si quid nominatim oonvenisse proponatur : Dig. 
 19. I. 13. II. 
 
 ^ E. g. Cujacius, Obss. xxv. c. 3 1 . 
 
 * E. g. Grluck, Pandekten, 17. p. 196. 
 
 ^ Denn das Pachtgeld ist als ein Surrogat der natiirliclaen Frtichte 
 zu betracMen, Gluck, 1. c. 
 
94 COMMODUM EEI. 
 
 in the dark by the vendor, the latter would be liable 
 to him in damages^. It may be the case that Ulpian 
 was not considering to whom the rent will really belong, 
 but who can sue for it ; and though no doubt no one 
 but the lessor-vendor can do this, still it is quite possi- 
 ble that he may be bound to hand it over, or to assign 
 his rights to be paid or to sue for it if unpaid, to the 
 purchaser ^. 
 
 The purchaser is also entitled to all accessions which 
 may accrue to the property which he has bought from and 
 after the moment at which the contract is perfect so as to 
 throw the risk on him. Among these are included aU 
 benefit of increased value, all additions of soil by alluvion 
 to land *, children born of female slaves, and all property 
 acquired through slaves of either sex*, such as the in- 
 heritance of anyone who has died since the making of the 
 contract, and who has appointed the slave his heir^. 
 Whether treasure which has been found on land before it 
 has been conveyed to the purchaser, but after the perfection 
 of the contract, belongs to him or to the vendor is a much- 
 disputed question. Some authorities hold that it would go 
 to the vendor, as being still owner of the property, relying 
 upon the enactment of Hadrian, which was confirmed by 
 Justinian^, and by which it was provided that treasure 
 should belong to the owner of the land, if found by him, 
 and should be divided between him and the finder if 
 accidentally found by anyone else. But after the conclu- 
 sion of the contract the vendor is owner only in relation to 
 third parties, and consequently it would seem more correct 
 to say that even if the vendor found the treasure himself 
 
 ' P. 59 supr. 
 
 ^ The words ' nisi si quid nominatim convenisse proponatur ' axe, 
 however, very much against this hypothesis. 
 
 ^ Dig. i8. 6. 7. ■* Dig. 22. I. 4. 1. 
 
 ^ Dig. 19. 1. 13. 18. ° Inst. ii. I. 39. 
 
COMMODTJM EEI. 95 
 
 he was entitled only to half as finder, and to none as 
 owner ^. 
 
 ' In English law the commodum, like the periculum, is with the 
 party who has the property in the goods. ' Any calamity hefalling the 
 goods after the sale is completed must be borne by the purchaser, 
 and, by parity of reasoning, any benefit to them is his benefit, and not 
 that of the vendor ' : per Blackburn J. in Sweeting v. Twner, L. R. 7 
 Q. B. at p. 313. 
 
CHAPTER IX. 
 
 THE EI'JFBCTS OP THE CONTRACT. 
 
 (b) Duties of the Parties. The Vendor. 
 
 Performance by each party is a concurrent condition of performance by 
 the other. Duty of the vendor to deliver. What constitutes delivery. 
 Time and place of performance by the vendor. The possession delivered 
 must bo ' vacua.' Vendor under no obligation to give a title as owner ; 
 strictness of this rule, and theories as to its rationale. Effect of discoveiy 
 that land is subject to servitudes or charges undisclosed by the vendor. 
 Vendor's obligation to take due care of the goods pending delivery. Delay 
 in delivery. No property passes by the contract. Vendor's implied covenant 
 of quiet enjoyment. History of the obligation to compensate the purchaser 
 on eviction. Meaning of ' eviction.' Modes in which it may take place. 
 The flaw in the purchiiser's title must have existed when the contract was 
 made. Eviction must not be attributable to purchaser's own fault. 
 Eviction by a third person proving rights less than ownership. Necessity 
 of the purchaser's notifying the vendor that the title is called in question : 
 exceptions to this rule. Variation by contract of the vendor's liability for 
 eviction : stipulatio duplae : pactum de evictione non praestanda. Mea- 
 sure of the vendor's liability. Purchaser's right to retain the purchase 
 money when the title is disputed. Partial eviction. Sumhiary of cases 
 in which there is no right to compensation on eviction. Subsidiary reme- 
 dies of the pui-chaser. Note A : Scotch, English, and French Law as to 
 the effect of the contract in passing the property. Note B : Scotch and 
 Engli.sh Law as to implied warranty of title on a sale of goods. 
 
 Perform- In the absence of agz-eement to the contrary (exemplified 
 each party in the common case of a sale on credit), each of the parties 
 current ^^ hound to perform his side of the contract immediately 
 condition it jg concluded : performance by one is not conditional on 
 
 of per- 
 formance performance by the other ^. At the same time, as it would 
 
 by the - 
 
 other. 1 "piig jTjig ig ^]^Q same in the laws of England, Scotland, and France. 
 
 For England : ' unless otherwise agreed, delivery of the goods and pay- 
 ment of the price are concurrent conditions, that is to say, the seller 
 must be ready and willing to give possession of the goods to the buyer 
 
THE VENDORS DUTIES. 97 
 
 be uni-easonable to compel either to execute before the 
 other, if either ia sued for non-performance before he has 
 received the consideration, he can defend himself by the 
 exceptio doll (in this case called by the moderns exceptio 
 non adimpleti contractus) whereby he is enabled to refuse 
 performance on his side ^ unless the plaintiff can show by 
 replication that he has either performed, or has been ready 
 and wiUing to perform throughout^, or has been disabled 
 from performance by impossibility arising from causes 
 entirely beyond his control. In brief, neither party can 
 succeed in an action against the other for non-perform- 
 ance unless he has either performed himself, or has been 
 willing to perform on receiving performance from the other 
 party. 
 
 The duties of the vendor may be what the parties may 
 please to agree, so long as they are not at variance with 
 
 in exchange for the price, and the buyer must he ready and willing 
 to pay the price in exchange for possession of the goods : Chalmers, 
 Sale of Goods, p. 46 : Benjamin, p. 580, sqq. . Morton v. Lamb, 7 T. R., 
 125 : Rau'son v. Johnson, l East, 201 : Wilki-v. Atkinson, i Marshall, 
 412. For Scotland, 'When the bargain is simple and without special 
 stipulation, the buyer's obligation is to pay immediately, and the seller 
 is entitled to demand and have action for payment on offering delivery 
 of the thing, or proving the delivery made, or on showing that the 
 thing has perished by accident. The delivery must be immediately 
 on the buyer performing all the conditions stipulated : ' Bell's Prin- 
 ciples of the Law of Scotland, §§ 100, 115. For the French Law see 
 Demante, Cours analytique de Code Civil, vii. p. 70. 
 
 ^ Si argentarius pretium rei, quae in auctione venierit, persequatur, 
 obicitur ei exceptio, ut ita demum emptor damnetur, si ei res, quam 
 emerit, tradita esset, quae est iusta exceptio : Gaius, iv. 126 : qui pen- 
 dentem vindemiam emit, si uvam legere prohibeatur a venditore, 
 adversus eum petentem pretium exceptione uti poterit : si ea pecunia, 
 qua de agitur, non pro ea re petitur, quae venit, neque tradita est : 
 Dig. 19. I. 25. : cf. Dig. 44. 4. 5- 4 : Cod. 8. 44. 8. 
 
 2 Offerri pretium ab emptore debet, quum ex empto agitur, et ideo, 
 si partem pretii offerat, nondum est ex empto actio (i. e. he cannot 
 sue with effect) : venditor enim quasi pignus retinere potest eam rem, 
 quam vendidit : Dig. 19. I. 13. 8. 
 
 H 
 
98 THE tendor's duties. 
 
 the fundamental and unalterable principles of the con- 
 tract^: but here we shall deal more particularly with 
 those liabilities which it imposes on him of its very nature, 
 and without the necessity of express stipulation : 
 
 et imprimis sciendum est in hoc iudicio id demum deduci, 
 quod praestari convenit : cum enim sit bonae fidei iudi- 
 eium, nihil magis bonae fidei congruit quam id praestari 
 quod inter eontiahentes actum est : quod si nihil con- 
 venit, tunc ea praestabuntur quae naturaHter insunt 
 huius iudicii potestate ^. 
 
 Duty of The first of these duties is to deliver the goods to the 
 
 the vendor , . ... , , , , 
 
 to deliver, purchaser : imprimis ipsam rem praestare venditorem opor- 
 tet, id est, tradere ^. With it he must deliver aU its be- 
 longings and appurtenances*, even though no mention 
 
 1 E.g. Dig. 12. 4. 16. ' Dig. 19. 1. II. I. 
 
 ' Dig. 19. I. II. 2. Le vendeur a deux obligations principales, celle 
 de delivrer et celle de garantir la chose qu'il vend : Code Civil, Art. 
 1603. 
 
 * La chose doit etre delivree en I'etat ou elle se trouve au moment 
 de la vente. Depuis ce jonr, tons les fruits appartiennent a I'acquereur. 
 L'obligation de delivrer la chose comprend ses accessoires et tout ce 
 qui a ete destine a son usage perpetuel : Code Civil, Arts. 1614, 1615 : 
 cf. Pothier, 47 : ' l'obligation de livrer une chose renferme aussi celle de 
 livrer toutes les choses qui en font partie, ou en sont des accessoires.' 
 The appurtenances which pass on a sale are denoted by the term causa : 
 alienatio cum fit, cum sua causa dominium ad alium transferimus, quae 
 esset futura si apud nos ea res mansisset, idque toto iure civili ita se 
 habet, praeterquam si aliquid nominatim sit constitutum : Dig. 18. I. 
 67. They include (i) all the natural appendages of the property 
 bought, such as standing crops (Dig. 19. i. 13. 10), shrubs, trees, under- 
 wood, hedges, and alluvial deposits. (2) Things which though they 
 can be separated from the property without injury or change of 
 nature are clearly designed to further its proper use and enjoyment, 
 and (in short) to belong to it ; e.g. the metallic fastening of tiles on a 
 roof (Dig. 50. 16. 242.3), bolts and keys (Dig. 19. i. 17. pr.), manure, 
 vine stakes, &c., intended for use on the land sold (ib. 2), water pipes 
 (ib. 8), the buckets and windlasses of wells (Dig. 18. i. 40. 6), &c. (3) 
 Servitudes appendant to land or houses (Dig. 18. i. 47-49). Whether 
 the ' instrumentuni ' of a landed estate, i.e. the stock, implements, 
 vehicles, and other things used in its cultivation (Dig. 33. 7. 8. pr.) 
 
THE VENDORS DUTIES. 99 
 
 may have been made of them in the contract, except so far wiiat con- 
 stitutes 
 
 delivery. 
 
 as they have been expressly reserved by the vendor i. He |^*'*"'^'' 
 
 is bound to put the purchaser in actual possession of the 
 property, and he is deemed to do so by giving him the 
 means of immediately appropriating it-, as in the well- 
 known instance of dehvering to him the keys of a ware- 
 house in which it is secured ^ ; and where the articles are of 
 great bulk they are deemed to be delivered by the vendor's 
 allovring the purchaser to put his mark upon them * The 
 obligation of delivery is an obligation to deliver so as to 
 
 pass with it on a sale has been disputed, but the better opinion seems 
 to be in the negative. On the whole subject reference may be made 
 to Wachter, Pandetten, § 65, appendix 2 : Dig. 18. i. 29-31 : ib. 40. 
 5 & 6: ib. 47-49: ib. 51 : ib. 67 : ib. 76 : Dig. 19. i. 13 (10. 11. 13. 16. 
 18) : ib. 14-17. 5 : ib. 17. 7-10 : ib. 18 : ib. 38. 2: ib. 52. 3 : ib. 53. 
 
 ^ Among such things not uncommonly reserved are standing crops 
 (Dig. 18. 1.80. pr.): minerals (Dig. 19. i-. 17.6): quarries (Dig. 18. I. 77): 
 therightof dwelling in a house (Dig. 19. 1. 13. 30: ib. 21.6: ib. 53. 2), and 
 the right of interring dead bodies in a burial ground (Dig. 19. i. 53. i). 
 
 ^ Le vendeur satisfait pleinement a son obligation de livrer la chose, 
 lorsqu'il a fait ce qui dependoit de lui de sa part, pour que I'acheteur 
 put, quand il voudroit, enlever la chose : "enlevement est I'affaire de 
 Tacheteur : Pothier, 46. La delivrance est le transport de la chose 
 vendue en la puissance et possession de I'acheteur. L'obligation de 
 delivrer les immeubles est remplie de la part du vendeur lorsqu'il a 
 remis les clefs s'il s'agit d'nn batiment, ou lorsqu'il a remis les titres de 
 propriete. La delivrance des effets mobiliers s'opere ou par la tradition 
 resile, oa par la remise des clefs des batiments qui les contiennent, ou 
 meme par le seul consentement des parties, si le transport ne pent pas 
 s'en faire au moment de la vente, ou si I'acheteur les avait dejaenson 
 pouvoir a un autre titre : Code Civil, Arts. 1604-1609. Under English 
 law the seller's duty to deliver the goods is satisfied by his affording to 
 the buyer reasonable facilities for taking possession of them at the 
 place where they are at the time the contract of sale is made, or, in 
 the case of goods to be manufactured, at the place of manufacture : 
 Chalmers, Sale of G-oods, p. 47 : Wood v. Tassell, 6 Q. B. 234 : Benjamin, 
 p. 683 sq. 
 
 ' Dig. 18. I. 74 : Pothier, 45. 
 
 * Videri autem trabes traditas, quas emptor signasset : Dig. 18. 6. 
 14. 1. It is otherwise with articles as small as wine casks or jars. Dig. 
 ib. I. 2. 
 
 H 3 
 
lOO THE VENDORS DUTIES. 
 
 enable the purchaser to have and hold the property as his 
 own in perpetuity, so that, if he is deprived of it by some 
 one who has a better title than the vendor, the latter is 
 bound ^ to indemnify him — a liability which will be con- 
 sidered in detail in a later part of this chapter. Moreover, 
 although he may have the possession, the purchaser may 
 not be able to derive from the property all the advantages 
 which an owner would, and, if this is so, he is entitled to 
 compensation from the vendor : thus, if he buys a slave 
 whom the latter had no right to sell, and whom he had 
 himself intended to manumit, he can recover damages for 
 the loss of rights of patronatus ^ ; or if a woman gives a 
 slave, whom she had bought from a vendor who had no 
 right to sell him, to the real owner by way of dowry, she 
 can sue the vendor because she becomes dowryless ^- 
 Time and The rule that, in the absence of agreement to the con- 
 
 ItlilCG of • 
 
 iK'ifurm- trary, the time of performance is the time at which the 
 thevondf.r Contract is made* is of course subject to the necessary 
 exception, that where the goods bought are not yet ready 
 for delivery, as where one employs a goldsmith to make 
 one a ring, or where the vendor still has something to do 
 to them, the vendor is entitled to such time as is reasonably 
 required for the work which has to be done °. If a place 
 has been agreed upon for performance, it should take place 
 there : the purchaser is not obliged to accept it, nor the 
 vendor to make it, anywhere else ". Otherwise, as is obvious 
 in the case of land, the proper place of performance is the 
 place where the property is at the time when the contract 
 is concluded'', and nowhere else *: and if the vendor is sued 
 
 ^ Quae res, si quidem dominus non fuit venditor, tantum evictionis 
 nomine venditorem obligat : Dig. 19. i. 11. 2. 
 ^ Dig. 19. I. 43 : ib. 45. 2. ' Dig. 21. 2. 24. 
 
 * Dig. 50. 17. 14. 
 
 ° Dig. 50. 17. 186 : Inst. iii. 15. 5 ; ib. 19. 27 : Pothier, 49. 
 ^ Pothier, 51. ' Potliier, 52: Benjamin, p. 684. 
 
 " Dig. 19. I. 3. 4. 
 
'JCHE VENDORS DUTIES. lOI 
 
 at some other place for non-delivery, this is taken into 
 account in fixing the damages ^ 
 
 The possession delivered must be undisturbed (vacua) : The pos- 
 not only in the sense that there must be no third person ifvered 
 who alleges a contrary right to the immediate possession, f"""* ^"r 
 but in the sense also that the purchaser must be able to 
 establish his own possessory title to it as superior to that 
 of all other persons : 
 
 vacua possessio emptori tradita non intelligitnr, si alius 
 in ea legatovum fideive commissorum servandorum causa 
 est, aut creditores bona possideant. idem dicendum est, 
 si venter in possessione est : nam et ad hoc pertinet vacui 
 appellatio ^. 
 
 idem Neratius ait, venditorem in re tradenda debere prae- 
 stare emptori, ut in lite de possessione potior sit, sed 
 Jnlianus libro xv Digestorum probat nee videri traditum, 
 si superior in possessione emptor futurus non sit. erit 
 igitur ex empto actio, nisi hoc praestetur^. 
 
 Consequently, if the goods are in mortgage or pawn, the 
 vendor must redeem them : 
 
 praedium aestimatum, in dotem a patre filiae suae 
 nomine datum, obligatum creditori deprehenditur : quae- 
 situm est an filius, qui hereditatem paths retinet, cum ab 
 ea se filia abstinuisset dote contenta, aetione ex empto 
 teneatur, ut a creditore lueret, et marito liberum prae- 
 staret ? respondit, teneri *. 
 
 If the vendor is disabled from delivering the goods through 
 no fault of his own, as where he is violently dispossessed 
 by a third person, he is bound to assign to the purchaser 
 
 ^ Dig. 13. 4. 2. pr. 
 
 2 Dig. 19. I. 2. I. ' Dig. 19. I. II. 13. 
 
 * Dig. 19. I. 52. 1. Here an estate is conveyed to a husband byway 
 of dos, appraised at a certain value, and therefore he is deemed a pur- 
 chaser : aestimatio enim pro venditione est, Dig. 23. 3. 10. 4 & 5, so 
 that he can require his father-in-law's heir to redeem it on its being 
 found to be mortgaged : cf. Cod. 8. 44. 5 : Pothier, 42. 
 
to give a 
 title as 
 o\vnei' 
 
 I02 THE VENDORS DUTIES, 
 
 his rights of action against the wrongdoer, so as to enable 
 him to recover the possession for himself by legal process ^- 
 Delivery of incorporeal things being impossible, its place 
 is taken, in the case of servitudes, by a special and inde- 
 pendent covenant entered into by the vendor that he vs^ould 
 do nothing to hinder the purchaser in the exercise and 
 enjoyment of them^, and in the case of other rights or 
 choses in action by a simple assignment coupled with 
 delivery of the documents, if any, by which they are 
 proved ^- 
 Veiidor Being bound to give only undisturbed possession of the 
 
 f.iiligation property, the vendor is under no obligation to give a title 
 as owner : the purchaser cannot refuse to take the goods 
 on discovering that they are not his, nor can he sue him, or 
 claim to rescind the contract, merely because the property 
 has not become his, though, as has been observed, he can 
 do so if he is rightfully deprived of possession by some 
 other person having a superior title : 
 
 qui vendidit, necesse non habet fundum emptoris facere, 
 ut cogitur qui fundum stipulanti spopondit*: 
 
 and a purchaser to whom the goods had been delivered had 
 no remedy against his vendor on discovering that he had 
 no right to sell them until the true owner had proved his 
 title : 
 
 qui rem emit et possidet, quamdiu evicta non est, auctorem 
 suum propterea, quod aliena vel obligata res dicatur, 
 conveiiire noa potest ^. 
 
 ^ Dig. 19. I. 31. pr. ^ Dig. 19. i. 3. 2. 
 
 " Pothier, 316. 
 
 * Dig. 18. I. 25. 2 : cf. Dig. 19. i. 11. 2 : ib. 30. i : 19. 4. i. pr. : Cod. 
 8. 44. 3. C'est pourquoi, si quelqu'un m'a vendu de bonne foi un 
 heritage qui ne lui appartient pas, dent il m'a mis en possession : quoi- 
 que je vienne a decouvrir par la suite qu'il n'en etoit pas le proprie- 
 taire, neanmoins je n'ai aucune action contra lui, tant que je ne suis 
 trouble par personne : Potbier, 48. 
 
 = Cod. 8. 44- 3- 
 
THE VENDORS DUTIES. IO3 
 
 No doubt the intention of the parties almost invariably 
 is that the property shall pass ^, and delivery of possession 
 will ipso facto pass it if the vendor as a fact is owner ^, or 
 has authority to sell : indeed, if there were an agreement 
 that property should not vest in the purchaser at all, the 
 contract could not be sale ^. So strong, however, is the strictness 
 rule that the vendor's obligation is to give undisturbed rule,^'' 
 possession only, that, according to Celsus, if one party gave 
 money as the consideration for the vesting of ownership in 
 him by the other, the agreement was to be deemed not 
 sale, but exchange *. 
 
 To English lawyers this rule of the Roman system seems and the- 
 so anomalous that an explanation of it is demanded : but its ration- 
 to continental exponents of the Civil Law, or of modern *'**' 
 systems based upon the Civil Law into which it has been 
 adopted, it would seem to so commend itself as natural 
 and reasonable that its rationale is seldom if ever enquired 
 into. In its mature form it is probably a rule resting on 
 the convenience of commerce, though in origin it is more 
 likely to have been connected with the uncertainties of 
 title which are inevitable under a highly complex and 
 formal method of transfer or alienation. It is beyond the 
 scope of a work like the present to discuss the source of. 
 the vendor's liability in duplum if he sold a thing by 
 mancipation to which he had no title, and which was 
 recovered from the buyer by the, rightful owner : but that 
 there was such a liability under the Twelve Tables is 
 
 ^ See Dig. 18. i. 20. Si Ton eonsulte, en effet, I'intention probable 
 des parties, dont il faut toujours tenir compte pour apprecier una con- 
 vention, on pent dire que, presque toujours, I'acheteur pretend aoquerir 
 une creance de propriete, et que le vendeur sait qu'il s'oblige a trans- 
 ferer una propriete : Demante, Cours analytique de Code Civil, vii. p. 2. 
 
 2 Dig. 19. I. II. 2. " Dig. 18. I. 80. 5. 
 
 * Dig. 12. 4. 16. Paulus hardly seems to agree on this point : he says 
 (in Dig. 19. 5. 5. i) et si quidem pecuniam dem ut ram aecipiam, 
 emptio et venditio est : but he probably does not mean ' ut alter rem 
 meam faeiat.' 
 
I04 THE VBNDOES DUTIES. 
 
 beyond all question^ Too little is known of the gradual 
 substitution in actual practice of simple delivery for man- 
 cipation to enable one to say more than that any reason 
 there was for establishing such a liability in mancipatory 
 sales was tenfold greater if the goods were merely delivered. 
 It is doubtful whether one could always pass the property 
 in res nee mancipi by simple delivery, even though they 
 were one's own : it is certain that one could not do so if 
 the thing happened to be ' mancipi.' If the law held a 
 sale to be void, or even voidable, simplj' because the vendor 
 did not give a good title as owner to the buyer, it is clear 
 that many transactions would not be entered into at all, 
 because the vendor had a reasonable doubt as to his title, 
 and that still more would be avoided because the vendor 
 subsequently discovered that he had not become owner of 
 the goods by their delivery. By the rule which the Romans 
 actually followed commerce was no doubt helped forward 
 and facilitated. In effect, the law said that the object of 
 a purchase was to vest the enjoyment and use of the goods 
 in the purchaser, and that therefore until he was disturbed 
 by some one having a better title he could do nothing to 
 the vendor : it protected him against all substantial loss 
 or injustice, while at the same time it prevented litigation, 
 and removed the obstacles which the opposite rule must 
 have placed in the way of free and ready trading ^- 
 
 ^ Cic. pro Mur. 2. 3 : Paul, sent. rec. 2. 17. 3 : Voigt, Zwolf Tafeln, 
 § 87 : Muirliead, Roman Law, pp. 280. 281. 
 
 ^ ' Est ist das offenbar eine Begiinstigung des Waarenumlaufs in 
 Handel und Wandel,' Kuntze, Cursus des romischen Rechts, § 682. A 
 somewhat diiferent explanation is given by Unterholzner (Soliuldver- 
 haltnisse, ii. p. 294, § 481), wlio holds that the distinction diawn 
 between the vendor, who is not bound to give a good title to the 
 goods, and the purchaser, who is bound to do so in respect of the pur- 
 chase money, is ' natural ' : for the money can properly be used only 
 by being paid away, and if the vendor learns that the money did not 
 belong to the purchaser, and therefore is not his either, he dare not 
 make any use of it in that way, for it would be theft (Inst. ii. 6. 3). But 
 the purchaser is not in this predicament : what he wants is to keep 
 
THE VENDOR S DUTIES. 1 05 
 
 Whether the vendor of land is liable co the purchaser if Effect nf 
 
 disco v^i'V 
 
 it be found to be subject to praedial servitudes of which no that iai)d 
 information was given by the former is not quite clear. J.^ ^"j.':j^':^ 
 There can of course be no doubt of his liabiHty if he has t"<les or 
 
 , charges 
 
 expressly represented the land as ' optimus maximus — free undisclos- 
 from such burdens ' — or if he knew of the existence of the yendor. 
 servitude and dishonestly concealed his knowledge from 
 the purchaser with a view to getting a better price ^. But 
 where there has been nothing in the nature of a repre- 
 sentation or warranty, and nothing which amounts to 
 fraud, two views are possible on the authorities. According 
 to one the vendor is under no liability whatever ; according 
 to the other, he must pay damages equivalent to the sum 
 by which the purchase money would have been abated had 
 the existence of the servitude been known to the purchaser 
 when he entered into the contract. Of these the first finds 
 most support in the Roman texts. Ceisus says ^ that unless 
 there is a warranty on a sale of land, 'non Hberum, sed 
 quails esset, fundum praestari oportere,' and this is con- 
 firmed by Venuleius * and by less unmistakeable passages 
 from Pomponius ^ and Neratius *. In respect of personal 
 servitudes the rule was different, for they involved a dis- 
 
 and use the goods rather than to dispose of them to some one else, and 
 if he originally acquired possession in good faith, his right to use 
 them is beyond all doubt, so that until he is evicted by some one with 
 a superior title he is as well off as though he had been made owner. 
 
 Dr. Hunter (Roman Law, 2nd ed. p. 369) finds the reason of the rule 
 in a desire to open the door to transactions by peregrini, ' who could 
 not give a good title to the ownership.' But this suggestion raises 
 historical questions touching the rights of aliens at Rome upon which 
 it is impossible to enter here, and the simplest answer to it would 
 seem to be that at any rate the alien could own the goods as com- 
 pletely as he could own the money with which he paid for them, and 
 the purchaser was bound— whether citizen or alien — to make the 
 money the vendor's property. 
 
 '' Dig. 18. I. 59: 21. 2. 75 : 50. 16. 90 & 169. 
 
 2 Dig. 19. I. I. I : 21. 2. 69. 5. ' Dig. 18. i. 59. 
 
 * Dig. 21. 2. 75. ^ Dig. 18. I. 66. pr. * Dig. 21. 2. 48. 
 
I06 THE VENDOk's DUTIES. 
 
 turbance of the possession, which could not be said to be 
 'vacua' if the property were subject to a usus or usus 
 fructus ^. Nor is the vendor bound to inform the purchaser 
 of servitudes appurtenant to the land, so that if they are 
 subsequently lost by non-exercise, owing to the purchaser's 
 ignorance of his rights, he is free from liability, unless his 
 silence amounts to fraud. Similarly, he is under no obli- 
 gation to state the taxes or other charges on land of the 
 same kind which are matters of ordinary knowledge ^, 
 though he will be answerable if he sold it as free from 
 them, or understated their amount ^ : but of extraordinary 
 charges information should be given * : if he Avas aware of 
 them, he must compensate the purchaser in full for all 
 damages which his silence may have entailed upon him ; if 
 not, he must allow a proportionate abatement of the pur- 
 chase money. A term in the contract that the vendor 
 should be liable for all taxes charged on the property sold 
 was void °- Where the subject matter of the sale is land, 
 it is also tho vendor's duty to point out its boundaries to 
 the purchaser, unless they have been akeady defined in 
 writing, or by the instrument of sale °, and to deliver up 
 to him such documents as receipts for land tax, without 
 which he might be made liable for charges already satisfied ''. 
 Vendor's As it is part of the vendor^s duty to deliver the property 
 
 obligation ,...,.,. ,. , 
 
 to take due m the state and condition in which it was at the time when 
 
 soods ^ ^^^ ^^^® "^^® concluded, the rule is that he is liable in 
 
 pending damages for any injury or deterioration which it may 
 
 sufler thereafter, except so far as it is attributable to 
 
 accident, to human action beyond his control, or to changes 
 
 ' Dig. i8. 1. 66. pr. The passage upon which the opposite \'iew is 
 based are Dig. 45. i. 38. 3 : 8. 4. 6. 3 : 21. i. 61 : 21. 2. 15. i. For an 
 examination of them see Vangerow, § 610, note 3 : cf. Windscheid, 
 Lehrbueh, § 391, note 28. 
 
 ^ See Pothier, 194-199. ' Cod. 4. 49. 9. 
 
 * Dig. 19. 1. 21. I : ib. 41. ^ Cod. 4. 47. 1-3. 
 
 * Dig. 18. I. 63. I : 19. I. 48. ' Dig. 19. i. 52. pr. 
 
THE VENDOES DUTIES. I07 
 
 incident to its very nature : for these in general he has to 
 answer only if he has been guilty of wrongful delay in 
 making delivery ^. Similarly, if he disables himself^ either 
 wilfully or by his own negligence, from performing his 
 contract or any term in it, he is liable in damages ". He 
 is, in short, responsible ^ for all loss, destruction, damage, 
 or deterioration, which might have been prevented had he 
 taken precautions which would have suggested themselves 
 under the circumstances to a circumspect man of business, 
 used to dealing with goods or property of the kind in 
 question (diligentia boni patris familias *). It will perhaps 
 suffice to give one concrete case in illustration. The vendor 
 of a house, which is threatened with damage owing to the 
 unsafe condition of an adjoining tenement, is bound to 
 require from its owner a covenant for indemnification in 
 the event of the anticipated damage actually occurring 
 (cautio damni infecti '), because the purchaser cannot 
 demand such security for himself before the house has 
 been delivered to him. On the other hand, if the goods 
 sold, being specific and ascertained, perish either in whole 
 or part without the vendor's fault before deliveiy, he is 
 pro tanto excused from performance^. If, however, the 
 purchaser wrongfully delays acceptance of the goods, the 
 
 ^ Dig. 18. 6. 4. pr. : Cod. 4. 48. 4. 
 
 2 Dig. 18. I. 68. 2 : 19. I. 13. 16. ^ Pothier, 53. 
 
 * Dig. 18. I. 35. 4 : 18. 6.2.1: ib. 3 : 19. I. 31. pr. : ib. 36 : ib. 54. 
 pr. 
 
 '^ Dig. 19. I. 36. 
 
 « In English law, when the property has passed, the buyer must pay 
 the price according to the terms agreed on, even if the goods are de- 
 stroyed in the vendor's possession. The goods are at the buyer's risk : 
 the vendor simply holds them as bailee for him in such a case, Benja- 
 min, p. 716 : and so it is said by Chalmers, Sale of Goods, p. 35, that 
 though the goods are at the risk of whichever of the parties has the 
 property in them, this will not affect the duties or liabilities of either 
 seller or buyer as a bailee of the goods of the other party ; the cases 
 referred to are Head v. Tattersall, L. R. 7, Ex. 7 : Elphick v. Barnes, 5 
 C.P.D. 321. 
 
I08 THE vendor's DUTIES. 
 
 vendor is no longer bound to exhibit any high degree of 
 care in the charge of them ; he becomes answerable only 
 for wilful misconduct and gross negligence ^ Where the 
 property is stolen while under his charge, the presumption 
 is that he could have made it secure from theft by taking 
 such precautions as his duty of diligence imposes on him, 
 though he may rebut this by showing that he took all the 
 care of it that the law could require - : if it is taken from 
 him b}' force or robbery, the presumption is the other 
 way ^, though it is open to the purchaser to prove that by 
 his negligence he contributed to the result, which might 
 have been avoided if he had taken proper precautions. 
 Where he is not to blame, his duty is satisfied by his 
 assigning to the purchaser any actions which he may have 
 against other persons by whose act the property has been 
 taken away, destroyed, or damaged* 
 
 ^ Dig. iS. 6. 15. pr. : ib. 18. PotHer says (55) 'par exemple. depuis 
 que le marcliand a qui j'ai veudu mon vin est en demeure de I'eulever : 
 quoique le vin soit sur ses risques, et que je ne sois plus oblige de veillei" 
 a sa consen'ation. neanmoins si Ton vient m'avertir qu'il est en danger 
 imminent de se perdre, et qu'etant sur le lieu, et ayant la facilite d"y 
 faire apporter remede, je neglige de le iaire : c'est de ma part une 
 negligence crasse, une negligence ali'ectee qui tient de la malice, qui 
 me doit rendre responsable de la perte.' In English law. • Wben the 
 seller is ready and willing to deliver the goods, and requests the buyer 
 to take deliyerj', and the buyer does not within a reasonable time after 
 such request take delivery of the goods, he is liable to the seller for 
 any loss occasioned by his neglect or refusal to take delivery, and also 
 for a reasonable charge for the care and custody of the goods : " Chal- 
 mei's. Sale of Goods, p. 55 : Greaves v. AsMiii, 3 Camp. 425 : ci.Bloxani 
 V. Sanders, 4 B. & C. 941. 
 
 ■ Dig- 47- 2. 14, pr, ' Dig, 19. i. 31, pr. 
 
 * Utique tamen vindicationem rei et condictionem exhibere debebit 
 emptori, quia sane qui nondum rem emptori tradidit, adhuc ipse do- 
 minus est, idem est etiam de furti et de damni iniuriae actione : 
 Inst. iii. 23. 3 : cf. p. 89 supr. 
 
 The authorities say generally (e.g. Dig. 18, 6. 2, i) that the vendor 
 is answerable for custodia^?p)i« between the conclusion of the contract 
 and delivery. It is true that in Inst. iii. 23. 3, Justinian speaks as if 
 the obligation of custodia would be incurred only by an express pro- 
 
THE VENDORS DUTIES. lOQ 
 
 Delay in delivery by tlie vendor entitles the purchaser Delay in 
 to such damages as he can show he has thereby sustained ^, 
 either on account of depreciated value, or in the form of 
 profit on a resale^, or of any kind of use, benefit or enjoy- 
 ment of which he may have been deprived ^ : and such 
 damages may even sometimes exceed the amount of the 
 purchase money*. Indirect and more problematical profits, 
 however, such as gains which the purchaser might reason- 
 ably have calculated on making in other ways if he had 
 had the money to be derived from a resale, and more 
 remote damages, which are not the natural and ordinary 
 consequence of the vendor's default, are not considered °. 
 No damages of course are recoverable for delay in delivery 
 if the purchaser cannot show that it has entailed any loss 
 on him, though if he has paid the purchase money he is 
 entitled to interest on it from the time at which delivery 
 ought to have been made ^- 
 
 It is hardly necessary to say that the vendor is bound 
 
 mise to that effect made by the vendor, and was not an ordinary inci- 
 dent of the contract : but it is plain that what he is considering is 
 whether in any case the periculum rei remains with the vendor — 
 whether, in other words, he would in any case have to suffer for pure 
 accident. Treitschke (Kaufcontract, p. 305, note i) holds correctly 
 that in this passage custodia means periculum, but he is clearly wrong 
 in supposing that the remark must be confined to the case of a run- 
 away slave : Justinian expressly says, ' idem et in caeteris aninialibus 
 caeterisque rebus intelligimus.' 
 
 1 Pothier, 58. ^ Dig. I9- i- 3- 3- 
 
 ' Dig. 19. I. I. I : Cod. 4. 49. 4. 10 & 12. 
 
 * Di". 19. I. I. pr. E.g. the goods may have risen over 100 per cent, 
 in value, and then gone back to their original price before the pur- 
 chaser can get hold of them. 
 
 ^ Cum per venditorem steterit, quominus rem tradat, omnis utilitas 
 emptoris in aestimationem venit, quae modo circa ipsam rem consistit : 
 neque enim si potuit ex vino puta negotiari et lucrum facere, id aesti- 
 mandum est, non magis quam si triticum emerit et ob eam rem, quod 
 non sit traditum, familia eius fame laboraverit : nam pretium tritici 
 non servorum fame necatorum consequitur : Dig. 19. i. 21. 3. 
 
 " Dig. 19- I- 47- 
 
no 
 
 THE VENDOES DUTIES. 
 
 No pro- 
 perty 
 jjasses by 
 the con- 
 tract. 
 
 Vendor's 
 implied 
 covenant 
 I if quiet 
 enjoy- 
 ment. 
 
 to deliver the property sold according to its description as 
 given by himself. It must be as large as he described it 
 to be ^, and it must possess the qualities and accessions 
 with which he undertook to sell it. This obligation of 
 making his representations good, which has already been 
 touched upon in a previous chapter, may indeed be re- 
 garded as a branch of the general liability to answer for 
 nonperformance of his contract, whether it be due to wilful 
 breach or to negligence: for he either knew that the goods 
 were not of such a kind, or did not possess such appurten- 
 ances, as he represented, or in describing them as he did he 
 must have been guilty of a carelessness for which the law 
 holds him responsible ^ 
 
 At the risk of repetition it is well to point out that even 
 where the vendor is owner of the goods, or otherwise has 
 authority to dispose of them, property in them passes to 
 the purchaser only by delivery, and not in virtue of the 
 contract: traditionibus et usucapionibus dominia rerum, 
 non nudis pactis transferuntur ^. 
 
 We have still to consider a duty of the vendor which is 
 treated at considerable length in the authorities*, and 
 which, as a complement of the rule that he is not bound 
 
 ' Code Civil, Arts. 1616-1624 : Pothier, 250-258. 
 
 ^ Applications : a statement that land is of a certain acreage, Dig. 
 ig. I. 2. pr. : that there are certain servitudes appurtenant to it, ib. 6. 
 6 : that it is free from servitudes, ib. 8. I . that a slave shall have his 
 peculium, ib. 23 : that the rent due from the tenant of land sold shall 
 belong to the purchaser, 18. i. 68. pr. : accessions promised, 19. i. 11. 
 17, such as a specific number of casks in a vineyard, ib. 26 & 27 : ib. 
 54. I. 
 
 ' Cod. 2. 3. 20. Le contra.t de vente ne peut pas produire par lui- 
 meme cet effet : les contrats ne peuvent que former les engagements 
 personnels entre les contractans : ce n'est que la tradition qui se fait 
 en consequence du contrat, qui peut transferer la propriete de la chose 
 qui a fait I'objet du contrat : Pothier, 318. For the Scotch, English, 
 and French law relating to the transfer of the property see note A at 
 the end of this chapter. 
 
 * Dig. 21.2: Cod. 8. 45 : de evictionibus. 
 
THE VENDOE S DUTIES. 1 1 1 
 
 to give a title as owner, is of great practical importance. 
 It has been pointed out more than once that the vendor is 
 bound to guarantee the purchaser undisturbed possession ^, 
 and that if the property is recovered from the latter by 
 some third person on the strength of a superior title the 
 vendor must fully indemnify him. In such a case the 
 purchaser is said to be 'evicted,' and the vendor's duty is 
 said to be to guarantee him against eviction ^ ; as an English 
 lawyer would say, he is under an imphed covenant for 
 quiet enjoyment. It is a duty which we find in other 
 cases, besides that of sale : as a rule, in fact, it is an 
 ordinary incident of every transaction whereby one creates 
 or transfers legal rights for valuable consideration, such as 
 marriage settlements, compromises, exchanges^, partition 
 of inheritances * and of other property held in common ^. 
 
 As an incident of the contract of sale, the obligation to History of 
 compensate on eviction originated in the JiEdilician Edict tjon to 
 (itself, in this matter, based upon a still older rule relating g"™'^.^" 
 to sales by mancipation^). By the provisions of this edict, purchaser 
 the vendor was compellable in many cases ^ to enter, on tion. 
 the purchaser's demand, into a stipulation, that is a distinct 
 
 ^ He is bound ' praestare emptori rem habere licere : ' Dig. 21. 2. 8 : 
 19. I. 30. I. So too we have the expression ' evictionem praestare,' 
 Dig. 19. I. 10. &c. 
 
 ^ Quoique lors de la vente il n'ait ete faite aucune stipulation sur la 
 garantie, le vendeur est oblige de droit a garantir I'acquereur de 
 I'eviction qu'il souffre dans la totalite ou partie de I'objet vendu, ou 
 des charges pretendues sur cet objet, et non declarees lors de la vente : 
 Code Civil, Art. 1626. L'obligation de garantie se decompose en trois 
 obligations : 1° s'abstenir de tout acte qui tendrait a evincer I'ache- 
 teur : 2" proteger I'acheteur contre les tentatives d'eviction, le defendre 
 dans les proces qui peuvent lui etre intentes, prendre son fait et cause : 
 30 si Ton n'a pas reusai a proteger I'acheteur, I'indemniser de la perte 
 qu'il a faite : Demante, Cours analytique de Code Civil, vii. p. 83. 
 
 "• Dig. 19. 4. I. I : Cod. 4. 64. i. * Cod. 3. 36. 14. 
 
 = For the subject generally, and not in relation to sale only, see 
 Gluck, Pandekten, 20. § 11 17. 
 
 6 Paul. sent. rec. 2. 17. 3. ' Dig. 21. 2. 37. 
 
112 THE VENDORS DUTIES. 
 
 and independent contract, to that effect, the obligation 
 undertaken being usually to return double the purchase 
 money if the purchaser had to surrender the property to a 
 third person on the ground of superior title (stipulatio 
 duplae ^) ; and if the vendor refused to undertake the 
 guarantee it would be implied ^. Eventually it became a 
 fundamental principle that, in the absence of express 
 stipulation, he was bound by the nature of the contract to 
 indemnify the purchaser in full if he were thus deprived 
 of the possessions- 
 si in venditione dictum non sit, quantum venditorem pro 
 evictione praestare oporteat, nihil venditor praestahit 
 praeter simplam evictionis nomine, et ex natura ex 
 empto actionis hoe quod interest *. 
 
 Meaning The conditions of the vendor's liability require to be 
 tion.' somewhat more precisely determined. There must have 
 been an eviction: that is to say, as a general rule, some 
 third person must have proved, by fair legal process, that 
 he has a better right than the purchaser to the possession 
 of the property sold : until he has been evicted, the latter 
 cannot turn upon the vendor '. If, however, a man sells to 
 an innocent and unwitting purchaser property from which 
 
 ^ Dig. 21.2. 37. pr. & I : ib. 56. pr. 
 
 ^ Si dupla non promitteretur, et eo nomine agetur, dupli oondem- 
 nandus est reus : Dig. 21. 2. 2. 
 
 ■^ For the history of this development see Beohmann, Kauf, I. §§ 93- 
 97 • Muirhead, Roman Law, pp. 282-286. 
 
 * Dig 21. 2. 60 : cf. Cod. 8. 44. 6 ; ib. 25. 
 
 " Qui rem emit, et post possidet, quamdiu evicta non est, auotorem 
 suum propterea, quod aliena vel ohligata res dicatur, convenire non 
 potest : Cod. 8. 44. 3. By an enactment of the Emperor Zeno a person 
 who claimed to be owner of or to have a hypothec over property sold 
 or otherwise transfer-red by the Treasury was to have no rights against 
 the purchaser or alienee, but was entitled to sue the Treasury 
 for damages within four years of the transaction : Inst. ii. 6. 14 : Cod. 
 7. 37. 2. The rule was extended by Justinian to alienations by or on 
 behalf of the Emperor or Empress. 
 
ilaee. 
 
 THE VENDORS DUTIES. II3 
 
 he knows he is liable to be evicted, the purchaser is not 
 bound, on discovering the fraud, to wait until the rightful 
 owner has actually proved his title, but can sue at once for 
 such damages as the eviction will entail upon him ^- Nor 
 is it necessary that the purchaser should have been put in 
 possession: for he may have resold the property before 
 delivery to him, and the vendor may by his instructions 
 have delivered it to the subvendee, who is evicted ^, and 
 wherever his own alienee can sue him for eviction, he can 
 sue his own vendor ^. 
 
 The mode in which the eviction takes place is immaterial, modes in 
 In the majority of cases, no doubt the third person who may take 
 claims title to the property will be plaintiff against the P^^ 
 purchaser in possession, and will recover judgment against 
 the latter, whereby be will have to surrender possession or 
 pay damages as the price of retaining it*: but there is 
 equally an eviction when a third person is in possession, 
 who is sued for it by the purchaser, and whose superior 
 title, as defendant and possessor, is proved in the action : 
 
 ^ Dig. 19. 1. 30. 1. ^ Dig. 21. 2. 61. 
 
 ' Dig. 21. 2. 39. I : ib. 61 : ib. 22. i. II n'importe que oe soit a 
 I'aclieteur lui-meme, a qui la chose vendue soit evincee, ou a son suc- 
 cesseur en la dite chose, pour que I'acheteur ait Taction de garantie. 
 C'est pourquoi si je vous ai vendu un heritage, que vous I'ayez revendu 
 a Pierre, et que Pierre en soit evince : vous aurez action de garantie 
 centre moi, comme si c'etoit vous-meme qui en fussiez evince : car 
 je vous I'ai vendu pour vous et tous vos ayant cause ; je me suis engage 
 de vous en faire jouir, vous et tous vos ayant cause : et vous avez in- 
 teret que je defende Pierre de cette eviction, dontvous etes vous-m§me 
 tenu de le garantir : Pothier, 97. For the measure of damages in such 
 a case see Pothier, 146-148. 
 
 * It is possible that the vendor himself might be plaintiff, and then 
 the purchaser will be able to defeat his action by pleading the facts 
 in the form of an exoeptio. For instance, after selling a res alienathe 
 vendor may become its owner by inheritance or otherwise, and then 
 sue his own purchaser to recover it : quern de evictione tenet actio, 
 eundem agentem repellit exceptio : Pothier, 165. Similarly if after 
 becoming its owner he sells it to a third party, who sues the purchaser 
 in possession : the latter can set up the same plea : ib. 166. 
 
 I 
 
114 THE VENDORS DUTIES. 
 
 duplae stipulatio eommitti dieitur tunc, cum res restituta 
 est petitori, vel damaatus est litis aestimatione, vel 
 possessor ab emptore eonventus absolutus est\ 
 
 In order, however, to ground the purchaser's claim for 
 damages, it is further necessary that if he has been suc- 
 cessfully sued he shall have delivered the property up, or 
 otherwise satisfied the judgment, for until then he is not 
 really deprived of the advantages which the vendor is 
 bound by the contract to guarantee to him^. There is 
 again an eviction if the true owner obtains possession 
 without legal proceedings, so that he cannot be compelled 
 to surrender the property again : as where a woman buys 
 land in good faith and gives it to her husband by way of 
 dowry, and then he is discovered to have in fact been its 
 rightful owner throughout ^. Similarly, if after purchasing 
 a res aliena unawares a man acquires a title to it, either 
 for valuable consideration, or by gift, legacy, or inherit- 
 ance, although he could not sue the vendor under a stipu- 
 latio duplae, the action on which, being strict! iuris, would 
 not lie except where there had been an actual eviction, he 
 can bring an action ex empto to recover the purchase 
 money * : and if before actual eviction and before having 
 
 ^ Dig 21. 2. i6. I. ^ Dig. 21. 2. 57. pr. : Potliier, 88. 
 
 ' Dig. 21.2. 24. 
 
 * Si alienum fundum mihi vendideris, et hie ex causa luorativa 
 nieus factus sit, niiilominus ex empto milii adversus te actio competit : 
 Dig. 19. I. 13. 15 : cf. 21. 2. 9 : ib. 41. i. En voici la raison. Lors- 
 qu'apres avoir achate de vous une chose qui ne vous appartenoit pas, ou 
 qui ne vous appartenoit pas pour toujours, je succede a quelque titre que 
 ce soit a celui a qui elle appartient, c'est en vertu de ce nouveau titre 
 que je retiens desormais cette chose : ce n'est plus en vertu de la vente 
 que vous m'en avez faite : vous cessez done des-lors de remplir envers 
 moi votre obligation, non jam praestas mihi rem habere licere : et pa,r 
 consequent vous me devez rendre le prix que vous avez refu : Pothier, 
 96. L'aoheteur devient heritier du vrai proprietaire, il conserve par 
 consequent la chose sans craindre d'etre trouble a I'avenir. Mais ce 
 n'est pas la vente qui lui fait cette situation. Elle resulte uniquement 
 
THE VENDOE S DUTIES. 1 1 5 
 
 paid the purchase money he enters into an arrangement 
 "With the true owner in order to retain possession, whereby 
 the latter agrees to waive or abandon his action, the vendor 
 cannot demand payment, for although there has been no 
 technical eviction, because the purchaser retains possession, 
 yet he has it in virtue not of his contract with the vendor, 
 but of the second contract with the rightful owner ^- 
 
 The result of the investigation then, so far as we have 
 proceeded, is that there must have been an actual eviction ^, 
 and that that eviction, in order to ground an actio evictionis 
 proper as distinct from an actio ex empto for recovery of 
 purchase money, must have resulted from a fair and bona 
 fide trial at law, or from some equivalent to which the 
 purchaser could have been compelled ^. Two other prin- 
 ciples require to be stated. Firstly, it is essential that the The flaw 
 flaw in the purchaser's title shall have existed at the time p^^- 
 when the contract was made : in other words, the vendor chaser's 
 
 ' title must 
 
 will not be answerable for defects of title which arise have 
 subsequently, except for those which are due to his own when the 
 act *- The necessity of this last qualification is obvious : ^°^g*J^ade 
 otherwise the vendor might hypothecate the property to 
 
 de ce qu'il a acquis les droits de celui qui pouvait I'evincer : Demante, 
 Cours analytique de Code Civil, vii. p. 82. 
 
 ^ Dig. 21. 2. 29. pr. 
 
 ^ Hence the purchaser has no remedy if through no fault of the 
 vendor the property perishes before eviction : Dig. 21. 2. 21. pr. & i : 
 Cod. 8. 44. 26 : but the vendor will be liable to an action for fraud if 
 he knowingly sold the property as his own : Dig. 21. pr. cit. 
 
 ^ Therefore there is no remedy where the purchaser is not evicted 
 by process of law, but is violently dispossessed by a third person (Cod. 4. 
 49. 17) or has the property taken from him by the State (Dig. 21.2. 11. 
 pr.). So too if the judgment against him is erroneous, owing to either 
 the judge's dishonesty or incompetence (Dig. 21. 2. 51. pr. : Pothier, 
 94), for here the presumption is that he could have got it set aside by 
 resorting to an appeal. 
 
 * Les evictions dont la cause n'a commence d'exister que depuis le 
 contrat, donnent lieu a la garantie lorsque cette cause precede du fait 
 du vendeur : autrement elles n'y donnent pas lieu : Pothier, 90. 
 
 I 3 
 
Il6 THE TENDOES DUTIES. 
 
 a third person after the sale, but before delivery, to the 
 purchaser, without being liable to the latter on his being 
 Eviction evicted by the hypothecary creditor. Secondly, there can 
 be attri- be no claim against the vendor if the eviction is in any 
 butable to ^^y attributable to the purchaser's own fault or negligence, 
 chaser's n might be so attributable in a variety of ways. The 
 
 own 
 
 fault. purchaser might fail to defend ^ or to properly defend ^ the 
 action brought against him by the adverse claimant, or to 
 appeal from a judgment which there was good reason to 
 believe might be reversed ^. He might lose the possession 
 by consenting to refer the question of title to a private 
 arbitration instead of to a properly constituted court : for 
 he was not bound to go to an arbitrator*. Similarly, if 
 he voluntarily parted with the possession, and on being 
 compelled to sue for its recovery failed to prove his title in 
 the Q'ole of plaintiff, when if he had retained it he could 
 not have been deprived of it by action brought against 
 him ^ : or if in defiance of his vendor's instructions he 
 brought the wrong action for recovery of the property * : 
 or if he allowed an interruption in his usucapion, by which 
 the rightful owner's title might have been extinguished'', 
 or suffered another to complete a usucapion commenced 
 before the sale of the property to him ^ ; or if he preferred 
 to rely on some other title than that of his vendor', or 
 failed in his action to recover it by reason of a plea in 
 defence personal to himself, and which could not have been 
 set up against his vendor ^''. 
 
 ' Dig. 21. 2. 56. 1. It seems clear howeverfromDig. 19. I. II. 12. that 
 if the adverse claimant's title was indisputable the purchaser's resist- 
 ance to it was not a necessary condition of his claim to indemnification : 
 of. Pothier, 95. 
 
 ^ Dig. 21. 2. 55. pr. ' Dig. 21. 2. 63. I & 2. 
 
 * Dig. 21. 2. 56. I. ^ Dig. 21. 2. 29. I. 
 
 * Dig. 21.2. 66. pr. ' Dig. 21.2. 56. 4. 
 ' Pothier, 93. " Dig. 21. 2. 76. 
 
 '" Dig. 21. 2. 27 & 28. 
 
THE vendor's duties. ifj 
 
 For the sake of simplicity it has hitherto been assumed Eviction 
 that the vendor's liability arises only when a third person ^l^a per- 
 proves the property to be his, and deprives the purchaser ^"^ P.™^" 
 
 ■P j-"U • ■*- Jr ins riffhts 
 
 ot the possession on the ground of his dominion. But the less than 
 law is the same when any similar right over the property, sTip^'" 
 of whatever kind, is proved by such third person. The 
 vendor guarantees by implication not only that the property 
 IS his to sell, but also that no one else has any adverse 
 right by which the purchaser can be deprived of the 
 possession, whether such right be a right of possession i 
 merely, or a personal servitude ^, or mortgage ^, or a right 
 to partition of property jointly owned ^ to in integrum 
 restitutio ^ or to bring a noxal action ^ But the proof by 
 a third person of a servitude over the property which does 
 not deprive the purchaser of the possession, such as a right 
 of way or of ancient lights, is not sufficient to found a 
 claim for eviction'. 
 
 A second condition of the vendor's liability, in addition The pur- 
 to the actual eviction, is that he shall have received notice musT 
 from the purchaser of the action in which he is involved '^°*''P *''** 
 
 vendor 
 
 (litis denuntiatio). If the latter embarked upon the litiga- t^at the 
 tion and allowed the case to be decided adversely to himself called in 
 without giving such notice, he lost all remedy against the i"®^*'°" • 
 vendor : 
 
 si cum posset emptor auetori denuntiare, non denuntiasset, 
 idemque victus fuisset, quoniam parum instructus esset, 
 
 ' Dig. 19. I. II. 13. ^ Dig. 18. I. 66. pr. : 21. 2. 49 : ib. 62. 2. 
 
 ' Dig. 21. 2. 34. 2 : ib. 35 : ib. 63. i. 
 
 * Dig. 21. 2. 34. I. 
 
 ° Dig. 21. 2. 39. pr. : ib. 66. I. ^ Dig. 19. i. 11. 12. 
 
 ' Si rheritage vendu se trouve greve, sans qu'il en ait ete fait de 
 declaration, de servitudes non apparentes, et qu'elles soient de telle 
 importance qu'il y ait lieu de presumer que I'acquereur n'aurait pas 
 aobete s'il en avait ete instruit, il pent demander la resiliation du con- 
 trat, si mieux il n'aime se contenter d'une indemnite : Code Civil, Art. 
 1638. See p. 105 supr. : and Vangerow, Pandekten, § 610, note 3. 
 
Il8 THE VENDORS DUTIES. 
 
 hoc ipso videtur dolo fecisse et ex stipulatu agere non 
 potest ^. 
 
 emptor fundi, nisi auctori aut heredi eius denuntiaverit, 
 evicto praedio, neqne eK stipulatu, neque ex dupla, neque 
 ex empto actionem contra venditorem vel fideiussorem 
 eius habet ^. 
 The reason why such notice was a condition of the pur- 
 chaser's remedy over is that he is not so likely as the 
 vendor to know the past legal history of the property, or 
 what defences may be set up against claims alleged in 
 respect of it by third persons, so that it will be his own 
 fault if he is deprived of the possession by defending such 
 actions alone, when if he had known and relied upon a 
 defence of which the vendor could have informed him they 
 would probably have been decided the other way ^. The 
 object of the notice accordingly is to enable the vendor, if 
 he wishes, to support or even to take upon himself the 
 purchaser's case *, and to protect himself against possible 
 collusion between the latter and the adverse claimant : and 
 
 ^ Dig. 21. 2. 53. I. In relation to this obligation to compensate the 
 purcliaser on eviction the vendor was called auctor (Dig. 50. 17. 175. i : 
 21. 2. 28 : ib. 51. pr. : ib. 64. 2) : any one who by contract made him- 
 self liable in the event of e^'iction, although not himself the alienor, 
 was called auctor secundus (Dig. 21. 2. 4. pr.). The terminology is 
 derived from mancipation, for if a purchaser was evicted from property 
 which had been conveyed to him in this manner there was an actio 
 auotoritatis to recover double the purchase money : Muirhead, Roman 
 Law, p. 136 : Beohmanu, Kauf, i, §§ 11-13. To call upon one's vendor 
 to assist in defending one's title is called in the Corpus iuris ' auctorem 
 laudare ' : Dig. 19. i. 6. 5 : 21. 2. 63. i : Cod. 8. 44. 7 & 14. 
 
 2 Cod. 8. 44. 8. 
 
 ° La garantie pour cause d'eviction cesse lorsque I'acquereur s'est 
 laisse oondamner par un jugement en dernier ressort, ou dont I'appel 
 n'est plus recevable, sans appeler son vendeur, si celui-oi prouve qu'il 
 existait des moyens suffisans pour faire rejeter la demande : Code Civil, 
 Art. 1640. 
 
 * Intei'pellare venditorem, sive successorem eius debes, ut tibi assis- 
 tant causamque instruant : Cod. 8. 44. 21. i. The procedure closely 
 resembles the vouching to warranty in a common recovery for the pur- 
 pose of barring an entail before the Fines and Recoveries Act of 1833. 
 
THE VENDORS DUTIES. II9 
 
 on this ground, saving some exceptions which will presently 
 be stated, it is a necessary condition of the purchaser's 
 remedy over in the event of the adverse claimant establish- 
 ing his title 1. The notice must be given to the immediate 
 vendor, that is to say, to the person liable in law to the 
 purchaser whose title is called in question ^ ; but no notice 
 need be given to his sureties °, if he has any, because they 
 are for the purchaser's security merely, and the reason of 
 the doctrine of notice has no application to them. The 
 purchaser whom it is sought to deprive of possession could 
 not validly give notice to anyone except his own vendor, 
 unless there had been an assignment to him of some 
 
 ' Nam si denuntiasti ei qui tibi vendidit, intellegit evictionis peri- 
 culum : Cod. 3. 19. I. Pothier says (107) 'il y a a cet egard une diffe- 
 rence entre le Droit Komain et notre pratique Fran9oise. Par le Droit 
 Romain I'aolieteur aussitot qu'il etoit trouble, soit par une demande 
 en revendication, soit par quelqu'autre demande, avoit seulement la 
 facuKe de denonoer au vendeur cette action qui etoit intentee contra 
 lui, pour que le vendeur prit sa defense sur cette action, s'il le jugeoit 
 a propos : mais ce n'etoit qu'apres la condamnation intervenue centre 
 Facheteur sur cette action, qu'il pouToit intenter contre son vendeur 
 Taction de garantie pour le faire condamner a I'indemniser de la con- 
 damnation, et c'etoit devant le Juge du domicile du vendeur que cette 
 action devoit etre intentee. Dans notre pratique Fran9oise on evite 
 ce circuit : I'acheteur en meme temps qu'il denonce au vendeur Taction 
 en revendication, ou autre par laquelle il est trouble en sa possession, 
 et qu'il le somme de prendre son fait et cause sur cette action, et d'y 
 defendre pour lui, pent aussi former en meme temps son action en 
 garantie contre son vendeur devant le Juge pardevant qui est pendante 
 la demande originaire, quoiqu'il ne soit pas le Juge du domicile du 
 vendeur, et conclure contre le vendeur, a ce que faute par lui de pouvoir 
 le defendre, et dans le cas auquel le demandeur originaire obtiendroit 
 a ses fins, le dit vendeur soit en mfime temps et par la meme sentence 
 condamne a I'indemniser.' 
 
 2 So strict is this rule, that if a slave sells something out of his pe- 
 culium, he, and not his master, must be notified : Dig. 21. 2. 39. i. 
 Notice to the vendor's agent suffices only if he himself is absent and it 
 is given with his knowledge : Dig. ib. 56. 4. For sales by pupilli see 
 
 ib. 56. 7. 
 
 3 Cod. 8. 44, 7 : Pothier, ill. 
 
I20 THE VENDORS DUTIES. 
 
 intermediate person's remedy over, or unless the remoter 
 auctor had given an hypothecary security against eviction^: 
 and if the property had been sold by two or more persons 
 as joint vendors, or if the vendor had died leaving two or 
 more coheirs, notice must be given to all ^, and all were 
 answerable in respect of their respective shares, although 
 the obligation to defend the action after notice had been 
 given was indivisible ^. As to the time at or within which 
 the notice must be given no precise rules are to be found. 
 Pomponius* says that any time would suffice, provided 
 that the vendor had a fair opportunity of defending the 
 title and that the notice was not given ' prope ipsam con- 
 demnationem ' : and many authorities are of opinion that 
 the vendor might be first notified on appeal, because 
 evidence and arguments were allowed in the appellate 
 court which had not been brought forward in the court 
 below '. On the other hand Labeo ^ requires that the 
 notice must be given ' ante indicium acceptum,' that is to 
 say, before the close of the preliminary proceedings (in 
 Pomponius and his day before the Praetor) which ended 
 with joinder of issue. The apparent contradiction between 
 the two writers disappears if we remember that when they 
 wrote the judge could listen to no pleas which were not 
 inserted in the formula of the action, which was formally 
 settled at the time of joinder of issue, so that notice given 
 to the vendor ' post indicium acceptum ' would practically 
 be given ' prope ipsam condemnationem.' 
 exceptions The exceptional cases in which the purchaser could 
 rule/ recover damages for eviction, notwithstanding his having 
 given the vendor no notice that his title was disputed, are 
 as follow : — ■ 
 
 ' Dig. 21. 2. 59. ^ Dig. 21. 2. 62. I. 
 
 * Dig. 45. I. 85. 5 : ib. 139. See Demante, Cours analytique de Code 
 Civil vii. pp. 84 & 85. 
 
 * Dig. 21.2. 29. 2. " Cod. 7. 63. 4. ° Dig. 32. 29. 3. 
 
THE VENDOES DUTIES. 12 1 
 
 (i) Where by a term in the contract the vendor has 
 waived his right to such notice^. The purchaser is of 
 course not disentitled by such waiver from requiring the 
 vendor to defend his title, nor is the vendor himself dis- 
 entitled from voluntarily undertaking it 2- 
 
 (2) Where it is through the vendor's fault that the 
 notice is not given: for instance, if he is away, and the 
 purchaser is unable to discover his whereabouts ^, or if he 
 takes steps to prevent the notice reaching him *. 
 
 (3) Where the vendor knowingly sells property which is 
 not his own : for here he is liable in any case on account of 
 his fraud ^- 
 
 (4) Where the title of the third party is so clear and 
 indisputable that to call upon the vendor to dispute it 
 would be quite useless : though the purchaser must be able 
 to make out that no different result could have ensued 
 had the vendor received the fullest and promptest notice ^. 
 
 If on receiving notice of the adverse claim the vendor 
 professed himself willing to defend the title, he must be 
 content to have the cause tried by the court before which 
 it had been brought, and might not assert any privilege 
 which would ordinarily have exempted him from its juris- 
 diction ■'. He was also bound to carry on the action in the 
 stage in which it was when he was notified, whether he 
 joined himself as a party with the purchaser, or took his 
 place and acted as his attorney for the conduct of the 
 defence^, but he could not take his place absolutely without 
 
 ^ Dig. 21.2. 63. pr. 
 
 2 Cod. 8. 44. 20. ^ Dig. 21. 2. 55. I : ib. 56. 6. 
 
 * Dig. 21. 2. 56. 5. ^ Dig. 19. I. 30. 1. 
 
 * Arg. Dig. 19. I. II. 12: cf. 21. 2. 53. I. Windsolieid (Lehrbuch, 
 § 391, note 12) denies the absolute necessity of notice as a condition 
 of the purchaser's remedy over, mainly on the ground that there are 
 cases in which the purchaser need not resist the third party's claim, 
 p. 116, n, I supr. : but the weight of textual authority against him is 
 almost overwhelming. 
 
 ^ Dig. 5. I. 49. pr. ° Dig. 21. 2. 21. 2. 
 
122 THE VENDORS DUTIES. 
 
 the other party's consent ; if that were given the effect was 
 a novation, and the purchaser was discharged as a party to 
 the action whether he assented to it or not ^. If judgment 
 went against the vendor while representing the purchaser, 
 he could not recover from the latter, his nominal principal, 
 any damages which he might be ordered to pay in default 
 of the property being delivered up to the successful 
 claimant ^. If, on the other hand, he paid no attention to 
 the notice given him by the purchaser, or denied his 
 obligation to assist him, his liability could be determined 
 only by an action for damages after satisfaction of the 
 judgment given in favour of the rightful owner. 
 Variation Before proceeding to define more precisely the limits, 
 tract of under different circumstances, of the vendor's general 
 the veil- liability in cases of eviction, it may be convenient to 
 
 dors ha- •' ' •' 
 
 biiity for briefly consider how that abstract liability may be varied 
 by contract between the parties. 
 
 stipulatio It has been already stated that the purchaser was by law 
 entitled to exact from the vendor a stipulatio duplae, double 
 the market value, or dupli pretii, double the purchase 
 money, to be paid to him if deprived of the possession by 
 a third person having a better title to it than his own. 
 This right might however be modified by evidence of local 
 usage ^, and though the general law did not in any case 
 require a promise of more than a double penalty *, it might 
 be made a term in the contract of sale itself^ that the 
 vendor should undertake a threefold or even fourfold 
 liability if eviction actually took place. 
 
 The rights of the purchaser however must be taken with 
 the qualification that even the stipulatio duplae could not 
 be required in sales of articles of small value : 
 
 ' Solutione vel iudicium pro nobis accipiendo et inviti et ignoi-antes 
 liberari possumus : Dig. 46. 3. 23. 
 ^ Dig. 21. 2. 66. 2. s Dig. 21. 2. 6. 
 
 * Dig. 21. 2. 37. pr. = Dig. 21. 2. 56. pr. : ib. 37. pr. 
 
THE VENDOE's duties. 1 23 
 
 quod autem diximus, duplam promitti oportere, sic erit 
 accipiendnm, ut non ex omni re id accipiamns, sed de his 
 rebus, quae pretiosiores essent: si margarita forte, aut 
 ornamenta pretiosa, vel vestis serica, vel quid aliud non 
 conlemptibile veneat ^. 
 
 It might, on the other hand, be made a term in the pactum de 
 contract that the vendor should not be liable in case ofnlnpiat 
 eviction 2, and such a term was implied if the purchaser ^*'""^''- 
 was aware at the time of the sale that the title to the 
 property was disputed*, and in certain cases of emptio 
 spei *- If it were simply agreed that the vendor should be 
 free from the ordinary liability (pactum de evictione non 
 praestanda), Julian -was of opinion that he was nevertheless 
 bound to repay the purchase money if the purchaser was 
 in fact evicted, because otherwise the equity which was of 
 the essence of the contract would be offended against ' : 
 but this view was rejected by Ulpian^, and is generally 
 admitted to have been untenable ''. If however the vendor 
 
 ^ Dig. 21. 2. 37. I. Besides the articles mentioned in the passage 
 cited, the res pretiosiores include land, slaves, and horses. In cases of 
 doubt it would probably be for a Court to decide whether the value was 
 suiEcient to entitle the purchaser to the stipulation. 
 
 ^ L' obligation de garantie est bien de la nature du contrat de vente, 
 elle y est toujours sous-entendue quoiqu'elle n'y soit point expriniee : 
 mais quoiqu'elle soit de la nature de ce contrat, elle n'est pas de son 
 essence : il pent y avoir un contrat de vente sans obligation de garantie, 
 et elle pent par consequent etre exeluse du contrat par une clause 
 particuliere : Pothier, 181. 
 
 ' Cod. 8. 44. 27. 
 
 * Dig. 18. I. 8. I : Pothier, 186 : Code Civil (cited inf.), Art. 1629: 
 Demante, Cours analytique de Code Civil, vii. p. 89. 
 
 ' Ibidem ait idem [Julianus] esse dicendum et si aperte in vendi- 
 tione comprehendatur nihil evictionis nomine praestatum iri, pretium 
 quidem deberi re evicta, utilitatem non deberi : neque enim bonae 
 fidei hac' patitur conventione, ut emptor rem amitteret, et pretium 
 venditor retineret : Dig. 19. i. 11. 18. 
 
 ^ Sed in suprascriptis conventionibus contra erit dicendum, nisi 
 forte sciens alienum vendit : Dig. loc. cit. 
 
 ' See Gliick, Pandekten, 20. p. 297. sqq. : Vangerow, Pandekten, § 
 
124 
 
 THE VENDOR S DUTIES. 
 
 Measure 
 of the 
 vendor's 
 liability. 
 
 knowingly sold property which was not his own, and 
 attempted to protect himself by a pact of this kind, it was 
 held not to bind the purchaser by reason of his fraud ^ ; 
 and consequently it is obvious that no such compact could 
 discharge the vendor from liability for an eviction due to 
 any act of his own, whether done before or after the making 
 of the contract ^. 
 
 In considering the precise extent of the vendor's liability, 
 it will be best to consider first the general law by which 
 it was determined in the absence of express stipulation. 
 
 He is bound to indemnify the purchaser for all loss 
 which he may sufier through being deprived of the pos- 
 session : and the measure of the damages in general is the 
 market value of the property at the time of e-viction : 
 
 evicta re, ex empto actio non ad pretium duntaxat recipi- 
 endum, sed ad id, quod interest, competit ^- 
 si in venditione dictum non sit, quantum venditorem pro 
 evictione praestare oporteat, nihil venditor praestabit 
 praeter simplum, evictionis nomine, et ex natura ex empto 
 actionis hoc quod interest *. 
 
 6lo, note 4 : contra Pothier, 185 : his view is adopted in the Code 
 Civil, Art. 1629. cited inf. 
 
 ^ Dig. 19. I. 6. 9 : ib. 11. 18. ad fin. 
 
 ^ The provisions of the Code Civil on the subject, Arts. 1627-1629, 
 are as follow : les parties peuvent mSme convenir que le vendeur ne 
 sera soumis a aucune garantie. Quoiqu'il soit dit que le vendeur ne 
 sera soumis a aucune garantie, il demeure cependant tenu de celle qui 
 resulte d'un fait qui lui est personnel : toute convention contraire 
 est nulle. Dans le meme cas de stipulation de nou-garantie, le ven- 
 deur, en cas d'eviotion, est tenu a la restitution du prix, a nioins que 
 I'acquereur n'ait connu, lors de la vente, le danger de I'eviction, ou 
 qu'il n'ait achete a ses perils et risques. 
 
 " Dig. 21.2. yo. 
 
 * Dig. 21. 2. 60 : cf. ib. 8 : 19. I. 43 : Cod. 8. 44. 23. Lorsque la 
 garantie a ete promise, ou qu'il n'a rien it6 stipule a ce sujet, si I'ac- 
 quereur est evince, il a droit de demander contre le vendeur la restitu- 
 tion du prix, celle des fruits, lorsqu'il est oblige de les rendre au 
 proprietaire qui I'evince, les frais faits sur la demande en garantie de 
 I'acheteur, et ceux faits par le demandeur originaire : enfin les dom- 
 
THE vendor's duties. 1 25 
 
 inus if at the time of eviction the property was worth 
 less than the sum which had been given for it, the actual 
 value only, and not the whole of the purchase money, could 
 be recovered ^ : if it was worth more, the vendor was liable 
 in the enhanced value, because the purchaser could have 
 got that for it if he had been able to retain possession ^. 
 Whether there was not some limit to the sum recoverable 
 as damages in relation to the price actually paid is a matter 
 of dispute. Let it be supposed that a man gives j£''5 for 
 a copy de luxe of a particular book, and that owing to the 
 accidental destruction of all the other copies it becomes 
 worth i^5° ill ^^6 market, can he recover the whole of this 
 from the vendor in the event of eviction ? A passage of 
 Paulus ^ would lead one to suppose that the enhanced value 
 
 mages et interets, ainsi que les frais et loyaux couts du contrat : Code 
 Civil, Art. 1630. 
 
 ' Dig. 19. I. 45. pr. : 21. 2. 70. This rule is disputed at great lengtli 
 by Pothier, 6g, who in the face of the texts contends that the purchase 
 money must certainly be restored entire, irrespective of loss of value 
 in the property from which the purchaser is evicted, except so far as 
 such loss of value has gone into the purchaser's pocket. He says: C'est 
 pourquoi n'ayant contracte envers mon vendeur 1' engagement de lui 
 payer le prix, qu'autant qu'il ne manqueroit pas au sien, et mon ven- 
 deur y aya.nt manque, par faute de me defendre de 1' eviction que j'ai 
 souflFerte : I'obligation que j'avois contractee envers lui de lui payer le 
 prix, de meme que le droit qui resultoit a son profit de cette obligation, 
 se resolvent : mon vendeur cesse des-lors d'avoir aucun droit au prix 
 que je me suis oblig^ de lui payer : d'ou il suit qu'il ne pent en rien 
 exiger, et que s'il a ete paye, il n'en pent rien retenir, et que je le puis 
 repeter en entier, condictione sine causa. D'ailleurs il est manifeste- 
 ment contre I'equite, que mon vendeur qui est en faute, en me vendant 
 une chose qui ne lui appartient pas, et qui me trompe, profite de cela 
 pour gagner sur moi une partie du prix.' His view is adopted in the 
 Code Civil, Art. 1631 : lorsqu'a I'epoque de I'eviction la chose vendue 
 se trouve diminuee de valeur, ou considerablement deterioree, soit par 
 la negligence de I'acheteur, soit par des aocidens de force majeure, le 
 vendeur n'en est pas moins tenu de restituer la totalite du prix. 
 
 ^ Pothier, 132. 
 
 ' Plane si in tantum pretium excessisse proponas, ut non sit cogita- 
 tum a venditore de tanta summa, veluti si ponas agitatorem postea 
 
126 THE VENDOE's DUTIES. 
 
 was not wholly recoverable if it so far exceeded the pur- 
 chase money that it could not be believed that the vendor 
 had so great a liability present to his mind at the time of 
 the sale, and Africanus^ suggests the inference that the 
 purchaser could in no case recover more than double the 
 sum which he had paid for the property : an inference 
 which is strengthened by a consideration of Justinian's 
 own enactment as to the measure of damages^. On the 
 other hand it is contended ^ that such passages as that of 
 Africanus relate only to the stipulatio duplae, and that 
 the suggested limitation can be accepted only in cases 
 where the vendor sold the property for less than half its 
 real value *- 
 
 Where the value of the property has been in fact in- 
 creased or even merely maintained by pecuniary outlay 
 made upon it by the purchaser, such outlay must be reim- 
 bursed to him on eviction by the vendor, unless he is able 
 to recover it, as will frequently be the case, on the ground 
 of his bona fide possession from the rightful owner when 
 the latter sues him ^ : 
 
 illud expeditius videbatur, si mihi alienam aream vendi- 
 deris, et in earn ego aedificavero, atque ita earn dominus 
 
 factum vel pantomimum, evictum esse eum qui minimo veniit pretio, 
 iniquum videtur, in magnam quantitatem obligari venditorem : Dig. 
 19. I. 43. 
 
 1 Dig. 19. I. 44. 
 
 ^ Cum pro eo quod interest dubitationes antiquae in infinitum produc- 
 tae sunt, melius nobis visum est buiusmodi prolixitatem prout possibile 
 est in angustum coartare, sanoimus itaque in omnibus casibus, qui 
 certam habent quantitatem vel naturam, veluti in venditionibus et 
 looationibus et omnibus contractibus, hoc quod interest dupli quan- 
 titatem minime excedere : Cod. 7. 47. pr. & i. 
 
 ^ E. g. Treitsobke, Kaufcontract, p. 254, note 4. 
 
 * Pothier, 132. Si la chose vendue se trouve avoir augments de 
 prix a I'epoque de I'eviction, independamment meme du fait de I'ac- 
 quereur, le vendeur est tenn de lui payer ce qu'elle vaut au-dessus du 
 prix de la vente : Code Civil, Art. 1633. 
 
 * E.g. Inst. ii. I. 30-32. 
 
THE VENDORS DUTIES. I 27 
 
 evineit : nam, quia possim petentem dominum, nisi 
 impensam aedificiorum solvat, doli mali exceptione sum- 
 movere, magis est ut ea res ad periculum venditoris non 
 pertineat, quod et in servo dicendum est, si in servitutem, 
 non in libertatem evinceretur, ut dominus mercedes et 
 impensas praestare debeat. quod si emptor non possideat 
 aedificium, vel servum, ex empto habebit actionem i- 
 
 But where he is unable to recover from the true owner, 
 for instance, through not having been in possession, or 
 because the owner is insolvent, or because the outlay came 
 under the head of impensae voluptariae, not those of im- 
 pensae necessaiiae or utiles, or where a supposed slave 
 whom he has bought has his freedom established by action 
 — in all these and similar cases the purchaser can recover 
 these damages from the vendor himself ^ : and the vendor 
 is absolutely liable, whether the true owner is or not, if he 
 sold the property knowing that he had no right to dispose 
 of it 3. 
 
 If the increase in the value of the property is not due 
 to the purchaser's outlay, but to the operation of natural 
 causes (as in the favourite illustration of an addition of soil 
 by alluvion) or is what is now called ' unearned increment,' 
 the true owner is of course under no liability to the pur- 
 chaser, who can recover from the vendor only *. The latter 
 must also compensate him for any sums which he may 
 have to pay the owner on account of fruits, and must pay 
 interest on the purchase money from the date of the con- 
 tract, unless (and except so far as) the purchaser has 
 
 ' Dig. 19. I. 45. I : cf. Cod. 8. 44. g & 16 : Pothier, 133. 
 
 2 Pothier, 134, 135. 
 
 ^ Le vendeur est tenu de rembourser ou de fairs rembourser a I'ac- 
 quereur, par celui qui Tevince, toutes les reparations et ameliorations 
 utiles qu'il aura faites au fonds. Si le vendeur avait vendu de niauvaise 
 foi le fonds d'autrui, il sera oblige de rembourser a I'acquereur toutes 
 les depenses, meme voluptuaires ou d'agrement, que celui-ci aura faites 
 au fonds : Code Civil, Arts. 1634, 1635 : Pothier, 137. 
 
 * Dig. 21. 2. 16. pr. 
 
128 THE vendor's DUTIES. 
 
 derived an equivalent from fruits consumed, for which, as 
 possessor in good faith, he would not be liable to the 
 owner : he must compensate him for the loss of profits 
 which, had he not been evicted, he would certainly have 
 secured through and by means of the property ^, such as 
 the inheritance of a deceased person to whom a slave, 
 whom the vendor is found to have had no right to sell, 
 has been made heir ^ ; and he must pay aU expenses and 
 costs incurred by him inJihC action by which the question 
 of title is determined^ : but,^f he can procure the property 
 from the third party after he has proved his title to it, and 
 delivers it to the purchaser, he can relieve himself of all 
 liability except that for the costs, and any other damage 
 which the purchaser may have suffered through being tem- 
 porarily deprived of the possession *. 
 
 A purchaser who had bought two or more things simul- 
 taneously from the same vendor, from one or some only of 
 which he was evicted, was entitled to recover damages 
 precisely as if he had bought it or them alone, even though 
 the residue from which he was not evicted had so much 
 increased in value as to be worth as much as he had given 
 for the whole : 
 
 si duos servos quinis a te emam, et coram alter evin- 
 catur, nihil dubii fore quin recte eo nomine ex empto 
 acturus sim,quamvis alter decern dignus sit : nee referre, 
 separatim singulos, an simul utrumque emerim ^. 
 
 Pur- It need hardly be said that if the purchaser had not vet 
 
 right to paid the purchase money at the time of the eviction, or 
 purchase'' ^'^^^ °^ receiving notice of the adverse claim, he might 
 ™f "^^^xi, liold it as security for his own claim against the vendor S- 
 
 when the '^ 
 
 title is dis- Nor did he lose his rights against the latter if after eviction 
 
 puted. 
 
 ^ Pothier, 138. 
 
 ^ Dig. 21. 2. 51. 3. ' Cod. 8. 44. 17. 
 
 * Dig. 21. 2. 67 : 44. 4. 15. « Dig. 21. 2. 47 : cf. ib. 72. 
 
 * Dig. 21. 2. 29. pr. : 18. 6. 19. I : Cod. 8. 44. 5 & 24. 
 
THE VENDORS DUTIES. 1 29 
 
 the owner made him a present of the property, or if he 
 succeeded to it as heir or legatee ^. It has alreadj' been 
 pointed out that if he acquired such new title before being 
 evicted^, he could not sue upon a stipulatio duplae, but 
 could recover his purchase money by actio ex empto, an 
 actual adverse judgment being an indispensable condition 
 of the condictio on the penal stipulation ^. 
 
 The sum secured by such stipulation, whether twice, 
 thricej or four times the amount of the purchase money, 
 could of course be recovered in case of actual eviction*, 
 without the necessity of taking into account any rise or 
 fall in value which the property may have had since the 
 contract was concluded ^. If, however, the purchaser is Partial 
 not evicted from the whole of the property, but only from 
 a portion of it, it is necessary to distinguish whether that 
 portion is ideal (or undivided) or specific. It is ideal, for 
 instance, when one of two joint-owners of an estate sells 
 the whole of it, and then the other sues the purchaser to 
 recover his undivided moiety. If, in this case, the property 
 has diminished in value since the time at which it was 
 sold, the vendor is liable under his stipulation only for the 
 lower value * : if it has increased, he is liable only for the 
 value as it was when the contract was made '' : if part has 
 
 ^ Dig. 19. I. 13. IS : 21. 2. 9 : ib. 41. i & 2. 
 
 ^ Dig. 21. 2. 57. I. " P. 114 supr. : Pothier, 96. 
 
 * Except where the Treasury was the vendor : the Treasury being 
 under no obligation ever to repay -more than the purchase money 
 actually received, even though its officials had expressly promised 
 more : Dig. 49. 14. S- pr. 
 
 5 Dig. 21. 2. 64. pr. 
 
 ^ E. g. j1 sella S an estate of 1000 acres, four-fifths of which really 
 belong to him, and the rest to C. After the conveyance, 200 acres are 
 washed away by a flood, and then C claims and recovers his undivided 
 fifth (e. g. 160 acres). A is liable for these 160 only : duplae stipulatio 
 pro parte quinta, non quarta praestabitur : Dig. 21.2. 64. pr. : Pothier, 
 
 154-157- 
 ' Quod si modo terrae inl;egro, qui fuerat traditus, ducenta iugera 
 
 per alluvionem accesserunt, ac postea pro indiviso pars quinta totius 
 
 K 
 
130 THE VEKDOES DUTIES. 
 
 become more valuable and part less, the diminution in 
 value is taken into account, while the increase is not^. 
 The portion is specific, where it is ascertained by metes 
 and bounds, or where the part claimed by the evicting 
 owner is clearly distinguished by marks from the rest, so 
 that its own precise market value is determinable : and 
 here the vendor's liability on eviction is ascertained not 
 by the ratio of size, but by reference to its actual quality 
 and consequent value as at the time of the sale ^ : 
 
 ceterum quum pro diviso pars aliqua fundi evincitur, 
 tametsi eertiis numerus iugerum traditus sit, tamen non 
 pro mode, sed pro bonitate regionis praestatur evietio ^. 
 
 It is otherwise, however, if the property was not bought 
 in the aggregate for a lump sum, but so much was given 
 for each portion of it separately : for here the compensation 
 due to the purchaser depends on the price actually paid 
 for the portion from which he is evicted *. Finally, it 
 should be pointed out that where the purchaser sues on 
 account of the eviction ex empto, under the general law, 
 
 evicta sit, perinde pars quinta praestabitur, ac si sola ducenta de illis 
 mille iugeribus, quae tradita sunt, fuissent evicta, quia allmdonis peri- 
 culum non praestat venditor: Dig. 21. 2. 64. I : Pothier, 158. 
 
 ^ Dig. 21. 2. 64, 2 : Pothier, 159, 160. 
 
 " Dig. 21. 2. 13 & 14: Pothier, 142, 143. 
 
 ' Dig. 21. 2. 64. 3. 
 
 * Si fundo tradito pars evincatur, si singula iugera venierint certo pre- 
 tio, tunc non pro bonitate. sed quanti singula venierint quae evicta fue- 
 rint praestandum, etiam si ea quae meliora fuerint evicta sint : Dig. 21.2. 
 53. pr. This question of eviction from part of the property bought is 
 thus regulated by the Code Civil, Arts. 1636, 1637 : Si I'acquereurn'est 
 evince que d'une partie de la chose, et qu'elle soit de telle consequence, 
 relativement au tout, que I'acquereur n'eut point aehete sans la partie 
 dent il a ete evince, il pent faire resilier la vente. Si, dans le cas de 
 I'eviotion d'une partie du fonds vendu, la vente n'est pas resiliee, la 
 valeur de la partie dont I'acquereur se trou\e evince lui est remboui'see 
 Buivant I'estimation a I'epoque de I'eviction, et non proportionellement 
 au prix total de la vente, soit que la chose vendue ait augmente ou 
 diminue de valeur. 
 
THE VENDORS DUTIES. I3I 
 
 and not upon an express stipulation, the damages are 
 assessed on the principle of putting the plaintiff, so far as 
 possible, in the position in which he would have been had 
 the eviction not taken place, so that increase and decrease 
 of value between the sale and the eviction are uniformly 
 taken into consideration ^. 
 
 It may be convenient here to summarise the cases in Summaiy 
 which, contrary to the general rule, the purchaser is not whTcir "* 
 entitled to compensation from the vendor on eviction, **^'^'? J^, , 
 
 '■ ' no right to 
 
 though some of them have been incidentally mentioned compen- 
 already. They are as follow : — ( i ) Where the action brought eviction, 
 to determine the right to the possession is decided against 
 the purchaser in consequence of his own fault or negligence, 
 for instance, by his suing in the wrong form ^. (2) If he 
 is deprived of the possession by a decision of the court 
 which is clearly wrong ^ : the onus of proving this is on 
 the vendor, who cannot escape his ordinary liability if he 
 omitted to appeal, having the opportunity of doing so ■*. 
 (3) If the property perishes or is destroyed through no 
 fault of the vendor before eviction, even though judgment 
 be subsequently given against the purchaser ^. (4) If the 
 roperty is bought with knowledge that the vendor intends 
 to use the purchase money for gambling purposes''. (5) 
 Where the sale comes under the description of venditio 
 spei '. (6) Where it has been provided by a term in the 
 contract that the vendor shall not be liable : for the limits 
 within which such a term will bind the purchaser it is 
 sufficient to refer to what has been said already ^- (7) If 
 mortgaged property is sold by the mortgagee in order to 
 satisfy the debt, and the purchaser is evicted, the latter has 
 no remedy against his immediate vendor, because he sells 
 
 ' Dig. 21.2. 8: ib. 15. i: Pothier, 139-141. 
 
 ^ Examples in Dig. 21. 2. 66. pr. : ib. 55. pr. : ib. 63. 2 : p. 116 supr. 
 = Dig, 21.2. 51. pr.: Cod. 8. 44. 15. * Dig. 21. 2. 63. i. 
 
 " Dig. 21. 2. 21. pr. * Dig. 44. 5. 2. I. 
 
 ' Dig. 18. 4. 10 & II : p. 123 supr. " P. 123 supr. 
 
 K 2 
 
132 THE VENDOE S DUTIES. 
 
 as agent for the mortgagor : the same principle applies to 
 all sales by agents if the relation of agency is disclosed. 
 (8) If the purchaser had been informed by the vendor or 
 otherwise was aware that he had no right to sell the 
 property, or that other persons had rights over it which 
 might entitle them to deprive him of the posseS^sion, the 
 vendor was not liable^ : for they were in pari delicto^, and 
 in any case it must be assumed that in fixing the amount 
 of the purchase money the chance of being evicted was 
 taken into consideration. If, however, though the property 
 is not subject to the rights of third persons at the time of 
 the sale, there is a possibility of such rights subsequently 
 attaching, as e.g. where the vendor, being an heir, sells a 
 thing which is bequeathed to another subject to the fulfil- 
 ment of a suspensive condition, and this is known to the 
 purchaser, he is entitled on eAdction to recover his purchase 
 money, but no more ^ : and if at the time of the sale the 
 vendor informs him that the property is subject to a mort- 
 gage, but understates its amount, the diflTerence can be 
 recovered in the event of eviction*. (9) If the subject- 
 matter of the sale is a universitas iuris, such as a peculium 
 or an inheritance, the vendor, though liable to the vendor 
 if he is evicted from the universitas, is not liable in respect 
 of separate pieces of property which he has delivered in 
 the erroneous belief that they were part and parcel of it*. 
 If, however, some definite share or quota of the inheritance 
 is recovered from the purchaser by a joint-heir, his right 
 to damages is beyond question. On the sale of what is 
 termed a universitas facti or rerum — an aggregate which 
 has no existence apart from the corporeal units of which 
 it is composed, such as a flock of sheep — the rule is different, 
 the vendor being liable to an action ex empto for the 
 
 ' Cod. 8. 44. 27 & 30. 2 j)jg j2. 5. 2, 
 
 " Cod. 6. 43. 3. 4. * Aa-g. Dig. 21. 2. 54. i : ib. 69. 3. 
 
 " Dig. 21.2. 5 : Cod. 8.44. i. 
 
THE VENDORS DUTIES. 1 33 
 
 eviction of any such unit which he delivers i, though not 
 to an action on a stipulatio duplae ^. 
 
 Although, as has been ah-eady observed, the purchaser Sub- 
 is not entitled to sue the vendor for damages until all the remedies 
 conditions of eviction have been satisfied ^, he may avail °^ **\® 
 
 ■' _ purchaser. 
 
 himself of certain subsidiary means of protection, if it 
 becomes certain that his title to quiet possession will be 
 called in question, as, for instance, by the commencement 
 of an action *. 
 
 Thus, if the property has been delivered to the purchaser, 
 but he has not yet paid the purchase money when notice 
 reaches him of the impending litigation, he may hold it 
 back until the vendor gives him substantial sureties for 
 payment of damages if eviction actually ensues ^ : and if 
 sued for it by the vendor he can reply by the exceptio doli 
 or imminentis evictiohis. Nor is his right of retaining the 
 whole of the purchase money affected by the fact that he 
 is threatened with eviction from only a part of what he 
 has bought, if it was a sale of the whole for a lump sum, 
 per aversionem. If, on the other hand, the sale was of a 
 number of things, or of a single thing capable of being 
 regarded as consisting of a number of similar units (e. g. 
 an estate of so many acres) at a price of so much for each *, 
 he may hold back the purchase money which is due in 
 respect of that part only to which the adverse claim relates, 
 unless he expressly bought the rest only in order to get 
 that particular part, in which case he may retain the whole'', 
 
 1 Dig. 41.3.23. 1. 
 
 ^ For the subject of Implied Warranty of Title in the Law of Eng- 
 land and that of Scotland, see note B at the end of this chapter. 
 
 ' Cum res restituta est possessori, vel damnatus est [emptor] litis 
 aestimatione, vel possessor ab emptore conventus absolutus est : Dig. 
 21.2. 16. I : venditor! sufiBcit, ob evictionem se obligare, possessionem 
 tradere, et purgari dolo malo : itaque, si evicta res non sit, nihil debet : 
 Dig. 19. 4. 1, pr. : cf. Cod. 8. 44. 3. 
 
 " Cod. 8. 44. 24. ° Dig. 18. 6i 19. 1 : Cod. 8. 44. 24. 
 
 " Dig. 21. l.34.pr. &i. '' Dig. 21. 1.34. I. 
 
134 THE YEXDOES DUTIES. 
 
 because then the vendor is liable to have the -whole con- 
 tract avoided. 
 
 If, on the other hand, the property was discovered, before 
 delivery, to be subject to a mortgage, the purchaser could 
 compel the vendor to redeem it^, though after delivery, 
 provided there had been no fraud, he had no such right, 
 and could do nothing until actually deprived of the pos- 
 session by the mortgagee ^, except refuse to pay the pur- 
 chase money until, as in the case last considered, the vendor 
 gave him solid sureties : unless indeed he bought with 
 knowledge of the mortgage, and there was a term in the 
 contract that it should be redeemed by the vendor. 
 
 K the contract had been fully executed on both sides, 
 the purchaser had no remedy pending eviction, except in 
 the case, so often mentioned, of a man selling to an innocent 
 purchaser property of which he knew that he had no right 
 to dispose. Under these circumstances he might sue ex 
 empto ^ before eviction, though not on a stipulatio duplae * : 
 and it seems to be generally held that similarly, if a man 
 fraudulently sold property which to his knowledge was 
 mortgaged, and the mortgage was unknown to the pur- 
 chaser, and the vendor had received the purchase money, 
 he could be compelled to redeem it. 
 
 The vendor's implied warranty that the goods are free 
 
 ' Cod. 8.44. 5. 
 Cod. 8. 44.3. Dig. 19. I. 52. I. might seem to contradict this, but 
 in that case there is nothing to show that the dotal estate had been 
 delivered to the husband (cf. Dig. 23. 3. 14 : 23. 5. 16), and even if it 
 had it is possible that a sale made dotis causa -n-as exceptionally 
 treated. 
 
 ^ Si sciens alienam rem ignoranti mihi vendideris, etiam prius- 
 quam evincatur, utiliter me ex empto acturum putavit in id, quanti 
 niea intersit meam esse factam : quamvis enim aJioquin verum sit, ven- 
 ditorem hactenus teneri, ut rem emptori habere liceat, non etiam ut 
 eius faciat, quia sciens alienam non suam ignoranti vendidit : Dig 19. 
 I. 30. I. 
 
 * Dig. 19. I. 4. 
 
THE VENDOES DUTIES. 1 35 
 
 from undisclosed defects which the purchaser could not 
 discover on inspection is reserved for a later chapter, in 
 which we shall consider the circumstancea under which 
 either party might avoid the contract in whole or part. 
 
 NOTE A. 
 
 In respect of the transfer of property upon a sale, the common Scotch, 
 law of Scotland is in accordance with that of Rome. ' Sale, as a con- Englisli, 
 tract, is contradistinguished from sale as a transference. The contract jvencl 
 of sale, when completed, is in the law of Scotland nothing more Law as t,^ 
 than the titulus transferendi dominii, with obligations on either the effect 
 part to pay the price and deliver the things sold. No property passes contract 
 till delivery : nothing but the ius ad rem specificam ' : Bell, Prin- in passiiis 
 ciples of the Law of Scotland, § 86- But it is now provided by the ^^'^ P''"' 
 Mercantile Law Amendment Act, Scotland, 1856 (19 & 20 Vic. c. 60) ^"^ ^' 
 § § I and 2, that when goods have been sold but not delivered, the 
 seller's creditors cannot attach them (on this point cf. Pothier, 320) 
 and a subvendee is entitled to demand the goods subject to satisfying 
 the seller's lien for the price. 
 
 The English law, under which, as is well known, the property often 
 passes without delivery in virtue of the contract, may be briefly stated 
 thus : 
 
 (i) An unconditional sale of a specific chattel, to which nothing 
 further is to be done by the vendor, passes the property in it to the pur- 
 chaser without delivery : ' Where there is a sale of goods generally, 
 no property in them passes till delivery, because until then the very 
 goods sold are not ascertained. But where by the contract itself the 
 vendor appropriates to the vendee a specific chattel, and the latter 
 thereby agrees to take that specific chattel and to pay the stipulated 
 price, the parties are then in the same situation as they would be 
 after a deliveiy of goods in pursuance of a general contract. The 
 very appropriation of the chattel is equivalent to delivery by the 
 vendor, and the assent of the vendee to take the specific chattel and 
 to pay the price is equivalent to his accepting possession. The effect of 
 the contract, therefore, is to vest the property in the bargainee ' : per 
 Parke, B. in Dixon v. Yates, 5 A. & E. 313, 340: Chalmers, Sale of 
 Goods, p. 28. But this rule will be overridden if it can be shown that 
 the parties had a different intention : per Sir Cresswell Cresswell in 
 Gilmour v. Supple, II Moo. P.O. 556: Blackburn on Sale, pp. 147, 
 167. 
 
 (ii) Where by the agreement the vendor is to do anything to the 
 goods for the purpose of putting them into that state in which the 
 
136 THE VENDORS DUTIES. 
 
 purchaser is to be bound to accept them (or into a deliverable state), 
 the performance of those things shall, in the absence of circumstances 
 indicating a contrary intention, be taken to be a condition precedent 
 to the vesting of the property, Blackburn on Sale, pp. 151, 152, and 
 the property does not pass until they are done, Chalmers, Sale of 
 Goods, p. 28: Bugg V. Minet, 11 East 210, and other cases cited by 
 Benjamin, pp. 282-88. 
 
 (iii) Where anything remains to be done to the goods, for the pur- 
 pose of ascertaining the price, as by weighing, measuring, or testing 
 the goods, where the price is to depend upon the quantity or quality 
 of the goods, the performance of these things also shall be a condi- 
 tion precedijut to the transfer of the property, although the indivi- 
 dual goods be ascertained, and they are in the state in which they 
 ought to be accepted : Blackburn on Sale, loc. cit. : Chalmers, loc. 
 cit. : Furleij v. Bates. 33 L. J. Ex. 43 : Hanson v. Meyer, 6 East 614 : 
 Simmons V. Swift, 5 B. & C. 857. The close parallelism between these 
 rules, and those of the civil law for determining when the risk passes 
 to the purchaser, will strike every reader. 
 
 (iv) Where there is a term in the contract that the buyer shall do 
 anything as a condition of the passing of the property, the property 
 will not pass till the condition be fulfilled, even though the goods may 
 have been actually delivered into the buyer's possession : Bishop v. 
 Shillito, 2 B. & Aid., 329 : Brandt v. Bowlhy, 2 B. cS: Ad. 932. 
 
 (v) Where there is a contract for the sale by description of unas- 
 certained goods, or of goods to be made or manufactured, and goods 
 of that description and in u, deliverable state are unconditionally ap- 
 propriated to the contract, either by the seller with the assent of the 
 buyer, or by the buyer with the assent of the seller, the property in 
 the goods thereupon passes to the buyer : such assent may be express 
 or implied, and may be given either before or after the appropria- 
 tion is made : Chalmers, Sale of Goods, p. 29 : Blackburn on Sale, p. 
 127: Benjamin, Bk. II, chap. 5. ('Of subsequent appropriation'): 
 Heilbutt v. Hickson, L. R. 7 C. P. 449. 
 
 (vi) When goods are delivered for sale ' on approval ' or ' on sale or 
 return,' the property passes on the buyer's doing any act conclusively 
 showing that he adopts the transaction [Swain v. Shepherd, i M & 
 Rob. 223) : and if he does not signify his approval or acceptance to 
 the seller, but retains the goods without giving notice of rejection, 
 then, if a time has been fixed for the return of the goods, on the ex- 
 piration of such time, or if no time has been fixed, on the expiration 
 of a reasonable time : Chalmers, Sale of Goods, p. 29 : Benjamin, pp. 
 592; 593 : Moss v. Sweet, 16 Q. B. 493. 
 
 (vii) Even where, according to the principles already stated, the 
 property would have passed to the purchaser, the vendor may, by the 
 terms of the contract or appropriation, reserve his right of disposal of 
 
THE vendor's duties. 1 37 
 
 the goods until certain conditions are fulfilled : and where this is the 
 case, even though the goods are delivered to the purchaser, or to a 
 bailee for the purpose of transmission to him, the property does not 
 pass until such conditions are fulfilled : Chalmers, p. 33 : Benjamin, 
 Bk. II, chap. 6 (' Reservation of the ius disponendi,' particularly pp. 
 366-371) : see judgment of Cotton, L. J. in Mirdbita v. Imperial Otto- 
 man Bank, 3 Ex. D. C. A., at pp. 171, 172. 
 
 The origin of the English rule, under which the property usually 
 passes by the contract, is incidentally discussed in Cochrane v. Moore 
 (1890, 25 Q. B. D. 57), where Fry, L. J., delivering the judgment of 
 himself and Bowen, L. J., pointed out (p. 65) that in Braoton's time 
 ' the law recognised seisin as the common incident of all property 
 in corporeal things, and tradition or the delivery of that seisin from 
 one man to another as essential to the transfer of the property in that 
 thing, whether it were land or a horse, and whether hy way of 
 sale or gift, and whether by word of mouth or by deed under 
 seal .... It was in the reigns of the early Tudors that the action 
 on the case in indebitatus assumpsit obtained a firm foothold in 
 our law : and the eifect of it seems to have been to give a greatly 
 increased importance to merely consensual conti-acts. It was prob- 
 ably a natural result of this that, in time, the question whether 
 and when property passed by the contract came to depend, in cases 
 where there was a valuable consideration, upon the mind and consent 
 of the parties, and that it was thus gradually established that in the 
 case of bargain and sale of personal chattels the property passed ac- 
 cording to that mind and intention, and a new exception was thus 
 made to the necessity of delivery. This doctrine that property may 
 pass by contract before delivery appears to be comparatively modern. 
 It may, as has been suggested, owe its origin to a doctrine of the civil 
 law that the property was at the risk of the purchaser before it passed 
 from the vendor : but at any rate the point was thought open to argu- 
 ment as late as Elizabeth's reign (see Plowd., 11. 6., and a learned 
 Note 2 Man. & Ry., 566).' 
 
 The question of Transfer of Title in English Law has been briefly 
 examined on p. 27 supr. 
 
 The French Law originally agreed with that of Rome and Scotland : 
 but M. VioUet ('Precis de I'histoire du droit fran(jais,' p. 519) observes 
 that in the medieval law of France the Roman rule was undergoing trans- 
 formation, the actual delivery being symbolical only, or being recited 
 in a deed ('clause de saisine'), or represented by the appearance of the 
 parties before a court. The next development was the ' clause de consti- 
 tut ou de precaire,' by which the vendor made himself detainer merely 
 of an immovable in the purchaser's name, until the latter had actually 
 taken possession : and by many of the Coutumes it is declared that 
 land may in some cases pass to the purchaser ' par le consentement 
 
138 THE vendor's duties. 
 
 du vendeur.' The jurists follow suit : Domat says that the 'clause de 
 preoaire ' is implied in contracts of sale where it is not expressed, 
 ' car la vente (ecrit-il), transferant la propriete, elle renferme le con- 
 sentement du vendeur que I'aoheteur se mette en possession ' : and 
 similarly Grotius and Pufendorf, writing ' au point de vue du droit 
 naturel.' Pothier, 318, who is 'plus Remain,' states the rule in ac- 
 cordance with that of the Civil Law, p. 1 10. n. 3 supr. The way was thus 
 paved for the enactment of the Code Civil, Art. 1583, which brings 
 French law into accordance with that of England : ' la propriete est 
 acquise de droit a I'acheteur a I'egard du vendeur des qu'on est con- 
 venu de la chose et du prix, quoique la chose n'ait pas encore ete 
 livree ni le prix paye.' This is merely an application to the specific 
 case of sale of the rule laid down in Art. 1 138 : ' 1' obligation de livrer 
 la chose .... rend le creancier proprietaire .... encore que la tra- 
 dition n'en ait ijoint ete faite ' : Demante, Cours analytique de Code 
 Civil, V, pp. 72 sqq. 
 
 The writer is reminded by Judge Chalmers that similarly the ' accep- 
 tance of part of the goods ' under § 17 of the English Statute of 
 Frauds may be constructive only. ' There is an acceptance of goods 
 within the meaning of this section when the buyer does any act in re- 
 lation to the goods which recognises a pre-existing contract of sale, 
 whether there be an acceptance in performance of the contract or 
 not ' : (Chalmers, Sale of Uoods, p. 8). Thus in Page v. Morgan, (1S85 : 
 15 Q. B. D. 288. C. A.,) the defendant, a miller, bought of the plaintift" 
 by verbal contract eighty quarters of wheat. The sale was by sample. 
 The wheat was shipped by the plaintiff's agent on a barge for carriage 
 to the defendant's mill. Upon the arrival of the barge some of the 
 sacks were, by the direction of the defendant's foreman, drawn up 
 into the mill and examined by him. The foreman then sent for the 
 defendant, who came to the mill and examined the contents of the 
 sacks already delivered, and also of some others, which he caused to 
 be drawn up out of the barge for examination. He then rejected the 
 wheat as not equal to sample. On trial the jury found that the 
 wheat was equal to sample, and that the defendant had accepted it 
 within the meaning of § 17 of the Statute of Frauds. On the Court 
 of Appeal hearing a motion for a new trial, which was refused, Brett, 
 M. R. said ' I rely for the purposes of my judgment in the present 
 case on the fact that the defendant examined the goods to see if they 
 agreed with the sample. I do not see how it is possible to come 
 to any other conclusion with regard to that fact, than that it was 
 a dealing with the goods involving an admission that there was a 
 contract.' See other cases reviewed by Benjamin, pp. 137 sqq. Among 
 other acts, the doing of which by the buyer is to be deemed a recog- 
 nition of the existence of the contract, are reselling {Chaprni v. Rogers, 
 I East. 192) or offering to resell [Blenkinsop v. Clayton. 7 Taunt. 597) 
 
THE VENDORS DUTIES. 1 39 
 
 the goods or part of them : using them (Beaumont v. Brengeri, 5 C. B. 
 301), and dealing with the bill of lading by which they are repre- 
 sented {Currie v. Anderson, 29, L. J. Q. B., 87). 
 
 NOTE B. 
 
 Inasmuch as the Common Law of Scotland seems to agree with that Scotch 
 of Rome in imposing on the vendor no absolute obligation to give a |f"^,. 
 title as owner to the purchaser, it has also adopted in substance the L^was to 
 law as to eviction. ' The secondary obligation of the seller (the pri- implied 
 mary one being to deliver the things sold, § 113) is to warrant against '*™""'J"*-^' 
 eviction. Eviction is the loss of a thing, in vrhole or in part, to the ^ sale of 
 buyer, by the judicial establishment of a right in another preferable goods, 
 to the seller : or by such right being admitted by the seller ; or by the 
 emerging of an unquestionable burden on the subject purchased, 
 which the buyer is compelled to discharge. The obligation of warran- 
 dice is implied or express. Where a full price is paid, or what the 
 parties consider as such, the warrandice is absolute. It is an engage- 
 ment that the buyer shall be protected against eviction on any 
 ground existing antecedent to the sale. To entitle the buyer to redress 
 there must be eviction : for it is only eviction that grounds an action 
 of warrandice. The eviction must be ex defectu iuris, not ex natura 
 rei, nor proceeding from accident or violence. And it must be a loss, 
 strictly speaking, not subsequent to the sale, as by a supervenient 
 law. Partial loss must be indemnified, and burdens removed. War- 
 randice from fact and deed is a more limited obligation, viz., protec- 
 tion against eviction by reason of the seller's own act or omission, past 
 or future. Simple warrandice protects the buyer only against the 
 future act and deed of the seller. Express warrandice is a special 
 bargain altering the implied engagement. The buyer is entitled to 
 redress on eviction, provided he shall have given notice of the challenge. 
 And although he is not bound to defend himself before eviction, he is 
 entitled to defend himself: and if he choose to do so, he will be held to 
 undertake the risk of all omissions in his defence, with the expense of 
 the contest. The buyer, on eviction, may claim the whole loss and 
 damage, as at the time of eviction, deducting the intermediate profits 
 drawn. But he is entitled only to such law expense as he may have 
 bona fide laid out in defending himself, either with the assent of the 
 seller, or without any offer on the seller's part to give instant indem- 
 nification, or to defend against eviction ' : Bell's Principles of the 
 Law of Scotland, §§ 121 — 126. 
 
 Whether the vendor of a specific ascertained chattel, who sells in 
 good faith, is by the law of England taken by implication to warrant 
 that it is his to sell is a question to which, until tolerably recently, 
 
140 THE VBNDOES DUTIES. 
 
 it was not easy to give a certain answer. So far as tlie older author- 
 ities go, there is, acording to Parke, B. in Morley v. Attenlorcmgh 
 (3 Ex. 500) decided in 1849, no such implied warranty: 'from the 
 authorities in our law, to which may be added the opinion of the late 
 Lord Chief Justice Tindal in Ormerod v. Hidh, it would seem that 
 there is no implied wan-anty of title on the sale of goods, and that 
 if there be no fraud a vendor is not liable for a bad title, unless there 
 is an express warranty, or an equivalent to it, by declarations or 
 conduct : and the question in each case, where there is no warranty 
 in express terms, will be whether there are such circumstances as 
 will be equivalent to such a warranty. Usage of trade, if proved as 
 a matter of fact, would of course be sufficient to raise an inference of 
 such an engagement : and without proof of such usage, the very 
 nature of the trade may be enough to lead to the conclusion, that 
 the person carrying it on must be understood to engage that the 
 purchaser shall enjoy that which he buys, as against all persons. 
 .... We do not suppose that there would be any doubt if the 
 articles are bought in a shop professedly carried on for the sale of 
 goods, that the shopkeeper must be considered as warranting that 
 those who purchase will have a good title to keep the goods purchased. 
 In such a case the vendor sells " as his own," and that is what is 
 equivalent to a warranty of title.' In a case, however, decided 
 as early as 1708 {L'ApostreY. L'Fhdslrier, i Peere Williams, 318), it 
 had been held that ' offering to sell generally was sufficient evidence 
 of offering to sell as owner'; and this doctrine was followed in 
 Eichholz V. Banister, 17 C. B. N. S. 708, where Brie, C.J., said 'in 
 almost all ordinary transactions in modern times the vendor, in 
 consideration of the purchaser paying the price, is understood to 
 affirm that he is the owner of the article sold.' According to 
 Benjamin, p. 634, the rule at present would seem to be stated more 
 in accord with the recent decisions if put in terms like the following ; 
 ' a sale of personal chattels implies an affirmation by the vendor that 
 the chattel is his, and therefore he warrants the title, unless it be 
 shown by the facts and circumstances of the sale that the vendor 
 did not intend to assert ownership, but only to transfer such interest 
 as he might have in the chattel sold ' : (cf. Chalmers, Sale of Goods, 
 p. 17, ' by a contract of sale the seller impliedly warrants his right 
 to sell the goods, unless the circumstances of the sale or agreement 
 to sell are such as to show that the seller is transferring only such 
 property as he may have in the goods'). Benjamin's statement of 
 the law was expressly confirmed in Raphael v. Burt (Cababe & Ellis, 
 325) by Stephen, J., who extended the application of the principle 
 from a sale of personal chattels to all sales of personal property, so 
 as to include bonds. The cases in which an implied warranty of title 
 has been negatived, appear all to have arisen out of sales by sheriifs 
 
THE VENDORS DUTIES. I4I 
 
 or forced sales by public auction, -where tbe circumstances were such as 
 to indicate that the seller was only selling such rights as he might have 
 in the goods : Chalmers, p. 18. It seems to be still uncertain whether 
 the purchaser can merely recover the price, if paid, as on a failure 
 of consideration, or may sue for unliquidated damages : Benjamin 
 (p. 634) thinks there is no reason to doubt that he may do the latter, 
 the ratio decidendi in Eichholz v. Banister being that there was a 
 warranty implied as part of the contract. There is probably also an 
 implied warranty on the part of the seller that the goods are free 
 from any charge or lien thereon at the time of the sale, but there 
 appears to be no English authority on the point : Chalmers, loo. cit. 
 By the Conveyancing and Law of Property Act, 1 881 (44 & 45 Vic. 
 c. 41), which applies to 'conveyances' of personalty, a covenant 
 for title and quiet possession is always imported unless expressly 
 negatived. 
 
 These are the only points upon which there is or has been any 
 diflBculty. For it is well settled that in an executory agreement the 
 vendor warrants by implication his title in the (goods which he 
 promises to sell : ' with respect to executory contracts of purchase 
 and sale, where the subject is unascertained, and is afterwards to be 
 conveyed, it would probably be implied, that both parties meant 
 that a good title to that subject should be transferred in the same 
 manner as it would be implied, under similar circumstances, that 
 a merchantable article was to be supplied. Unless goods which 
 the party could enjoy as his own, and make full use of, were delivered, 
 the contract would not be performed. The purchaser could not be 
 bound to accept if he discovered the defect of title before delivery : 
 and if he did, and the goods were recovered from him, he would not 
 be bound to pay, or having paid, he would be entitled to recover back 
 the price, as on a consideration which had failed,' per Parke, B. in 
 Morley v. Attenborough. Again, it has always been beyond doubt that 
 an aflSrmation by the vendor of a chattel that it is his, is equivalent 
 to a warranty of title, and that this affirmation may be inferred from 
 his conduct, as well as from his words, and may also result from the 
 nature and circumstances of the sale : and finally that if the vendor 
 knew that he had no title, and concealed that fact from the pur- 
 chaser, he would be liable on the ground of fraud: 'if the vendor 
 knew that he had no title, and concealed that fact, he was always held 
 responsible to the purchaser as for a fraud, in the same way that he 
 is if he knew of the defective quality,' per Parke, B. ubi supr. 
 
CHAPTEE X. 
 
 THE EFFECTS OP THE CONTEACT. 
 
 ((•) The Duties of the Parties. The Purchaser. 
 
 Payment 
 of the 
 purchase 
 money : 
 
 the pur- 
 chaser 
 must make 
 it the 
 property 
 of the 
 vrndor. 
 
 Payment of the purchase money ; the purchaser must make it the 
 property of the vendor. By whom and to whom payment may be made. 
 Passing of property in the goods, even when delivered, usually conditional 
 on payment. Inftrest due on unpaid purchase money. Purchaser's duty 
 to accept delivery, and to reimburse the vendor his charges. Conse- 
 quences of the purchaser's mora. The Civil Law on the subject of vendor's 
 lien, and unpaid purchase money. 
 
 The first duty of the purchaser is to pay the purchase 
 money ^. He is not entitled to any demand, so that if 
 there has been no agreement for postponing payment he 
 is bound to pay it immediately the contract is concluded, 
 on the vendor's delivering or offering to deliver the goods - : 
 and he must of course pay it in full, unless payment by 
 instalments at stated intervals or otherwise has been 
 provided for in the contract. The money with which he 
 pays the vendor must be his own, or at any rate money 
 of which he is entitled to dispose : for although a man can 
 
 ' Dig. 19. I. 13. 8 & 20. La principale obligation de I'aclieteur 
 est de payer le prix au jour et au lieu regies par la vente. S'il n'a 
 rien ete regie a cet egard lors de la vente, I'aclieteur doit payer au 
 lieu et dans le temps ou doit se faire la delivrance : Code Civil, Arts. 
 1650, 1651. 
 
 ^ Lorsque le contrat ne porte aucun terme, le vendeur peut former 
 incontinent cette action ex vendito centre I'aclieteur, aux ofFres qu'il 
 doit lui faire de lui livrer la chose, si elle ne I'a deja ete : Pothier, 
 279 : Bell's Principles of the Law of Scotland, § 127 : Benjamin, pp. 
 678-680. 
 
THE PUECHASEES DUTIES. 1 43 
 
 validly sell property which is not his own ^, and is under 
 no liability when the purchaser discovers this to be the 
 case until he is actually evicted, the purchaser is bound to 
 ' make the money the property of the vendor ' : 
 
 emptor enim, nisi nummos accipientis fecerit, tenetur ex 
 vendito ^. 
 
 Consequently, the vendor can sue him at once, if he pays 
 him with money which belongs to some one else, and of 
 which he has no right to dispose, even before the rightful 
 owner has called upon him to refund it : and the equity of 
 this is obvious, for on learning that the money does not 
 belong to the purchaser, he will have no right to use it 
 or pay it away, and if he does so will be liable to be 
 proceeded against by the owner as a thief ^. If the money 
 with which the vendor is paid as a matter of fact belongs 
 to him already, he is deemed not to have been paid at all * : 
 if it belongs to some third person, and is paid over by the 
 purchaser without authority, the owner can recover it by 
 real action unless it is so mixed with other money of the 
 vendor's as no longer to be separable or distinguishable. 
 In that event it becomes the property of the vendor by the 
 title of Commixtion^, the owner's remedy being in theft 
 against the purchaser ^, and the vendor is considered to be 
 paid, exactly as he is if he acquires property in the money 
 by usucapion ''. 
 
 Although the matter belongs to the general law relating By whom 
 to the discharge of contract rather than to that of sale in ^^^ 
 particular, it may not be amiss to point out that it is payment 
 immaterial who pays the vendor, provided it is done in made, 
 the name and on account of the purchaser, and with money 
 of which the payer has the right to dispose, and of which 
 
 ' P. 17 supr. ^ Dig. 19. 4, I. pr. : cf. 19. i. 11. 2. 
 
 ' Dig. 6. I. 4. * Cod. 4. 49. 7. 
 
 = Inst. ii. I. 28. " Dig. 46. 3. 78. 
 ' Dig. 46. 3. 60. 
 
144 "^^^ ptjechasbr's duties. 
 
 he can make the vendor owner : and such payment will 
 discharge the purchaser even though made without his 
 knowledge and against his will : 
 
 solvere pro ignorante et invito cuique licet, cum sit iure 
 civili constitutum licere etiam ignorantis invitique meli- 
 orem conditionem facere ^- 
 But payment, by whomsoever made, must be made to the 
 vendor himself, unless he has duly aiithorised an agent to 
 receive it on his behalf^, or unless he is disabled from 
 giving a valid discharge, in which case it must be made to 
 his proper representative ^. 
 
 Where property is purchased by two or more persons 
 
 jointly, or where, before haviDg paid, the purchaser dies, 
 
 leaving two or more joint heirs, although the vendor cannot 
 
 be compelled to deliver the property until he has been 
 
 paid in full, each can be called upon to pay his share only 
 
 of the purchase money *. In fact, the only case in which 
 
 the vendor can be required to deliver before he has been 
 
 paid is where he has agreed to give credit. 
 
 Passing..! It is a peculiar rule of the Civil Law that even though 
 
 in7lR' "^ t^6 vendor be the owner of the goods which he sells, or 
 
 /^vi'i! wlicn othenvnse has the right to dispose of them, and actually 
 
 deiiveri'il. delivers them to the purchaser, the latter does not become 
 
 their owner, and the property in them does not pass, untiL 
 
 cither the purchase money has been paid, or some security 
 
 mi-nt. (whether by wa3- of surety or mortgage) has been given 
 
 for its payment, unless the vendor gives the purchaser 
 
 credit : 
 
 ' Dig. 46. 3- S3 ■■ cf. ib. 40: Inst. iii. 29. i. The English rule seems 
 to be that payment by a third person, a stranger to the debtor, with- 
 out his knowledge, would not discharge the debtor : see per Willes 
 J. in Cook V. Lister, 13 C. B. N. S. 543 : and Baker v. Behhaw. 11 C. B.' 
 191 : Lucas v. Wi/kitison, 26 L. J. Ex. 13. The Code Civil, Art. 1236, 
 and the Scotch Law (Bell's Principles of the Law of Scotland, § 557),' 
 agree with the law of Ecme. 
 2 Dig. 46- 3- 12. pr. ' Dig. 46. 3. 49 : ib. 15 ; Cod. 8. 42. 12 
 
 * Dig. 18. I. 78. 2. 
 
 (Utional 
 in jiav 
 
THE PURCHASEUS DUTIES. 1 45 
 
 venditae vero res et traditae non aliter emptori adqui- 
 
 runtur, quam si is venditori pretium solvent, vel alio 
 
 modo ei satisfeeerit, veluti expromissore aut pignore 
 
 date . . . sed si is qui vendidit fidem emptoris secutus 
 
 est, dicendum est statim rem emptoris fieri ^. 
 
 It would seem that, in the absence of evidence to the 
 
 contrary, the giving of credit is to be inferred from the 
 
 vendor's sending the goods to the purchaser, cr allowing 
 
 him to take possession of them, before he has received the 
 
 purchase money ^, so that in practice the rule that the 
 
 property did not pass without payment had ceased to be 
 
 the rule, and had become an exception ^. 
 
 ^ Inst. ii. I. 41 : cf. Dig. 14. 4. 5. 18 : 18. 1. 19 & 53. The reason, 
 according to Pothier, 322, is ' que le vendeur qui vend au comptant 
 est cense n'avoir volonte de transferer la propriete que sous cette 
 condition : mais lorsque le vendeur a bien voulu fairs credit du prix a 
 racheteur, la tradition qui lui est faite de la chose lui en transfers 
 la propriete avant qu'il en ait paye le prix.' The Roman rule does 
 not seem to be followed in Scotland ; at least that appears to be 
 the natural inference from Bell's Principles of the Law of Scotland, 
 § 103 : ' a special condition of " ready money " suspends the passing 
 of the property even in a question with creditors.' 
 
 ^ See the authorities cited in the preceding note, none of which 
 require an express agreement to give credit, and cf. Dig. 21. 3. i. 2 : 
 in this passage an agent sells and delivers on behalf of his principal : 
 the latter, who brings a vindicatio against the buyer to recover the 
 goods, as being still his own, is bound to prove that in delivering them 
 before payment the agent acted against his instructions. The contrary 
 is maintained by Pothier, 324 : I'acheteur qui soutient que le vendeur 
 a bien voulu lui faire credit et suivre la foi doit le prouver : le credit 
 ne se presume point : au contraire dans les oontrats synallagmatiques 
 chacun est presume ne vouloir accomplir son engagement qu'autant que 
 I'autre partie accomplira en meme temps le sien. Si la tradition seule 
 et par elle-meme faisoit presumer ce credit, ce seroit mal-a-propos que 
 Justinian enseigneroit comme un principe particulier au contrat de 
 vente, que la tradition des choses vendues n'en transf ere pas la propriete, 
 si le vendeur n'a suivi la foi de I'acheteur, puisqu'il seroit toujours 
 presume I'avoir suivie. Mais si le vendeur, apres avoir livre la chose, 
 avoit laisse ecouler un temps considerable sans en demander le prix, 
 il est evident en ce cas qu'il a suivi la foi de I'acheteur, et par conse- 
 quent la propriete sera censee transferee par la tradition. 
 
 ' By English law, 'if goods are sold on credit, and nothing is 
 
 L 
 
146 
 
 THE PUECHASBRS DUTIES. 
 
 Interest 
 due on 
 unpaid 
 purchase 
 money. 
 
 The purchaser must further pay interest on the unpaid 
 purchase money from the date of delivery \ quite apart 
 from any demand for payment ^ ; the reason of this rule 
 being that as soon as he is put in possession of the property 
 he is able to use and enjoy it, and that it would be inequi- 
 table that he should be able to derive advantage from both 
 it and the money as well. Such interest is recoverable 
 only by means of an action to enforce payment of the 
 purchase money ; if this is once paid, the interest cannot 
 be demanded ^ : and the vendor cannot require to be paid 
 
 agreed upon as to the time of delivering the goods, the vendee is 
 immediately entitled to the possession, and the right of possession 
 and the right ofjjropei-ty vest at once in him : but his right of possession 
 is not absolute : it is liable to be defeated if he becomes insolvent 
 before he obtains possession,' per Bayley, J., in Bloxam v. Sanders, 
 4 B. & C. 941. That is to say, although the buyer has thus acquired 
 the right of possession, not to be questioned for any legal purpose by 
 anyone save his vendor, the latter may refuse to part vrith the goods, 
 and may exercise his lien as vendor to secure payment of the price, 
 if the purchaser has become insolvent before obtaining actual posses- 
 sion : Benjamin, p. 679 : Chalmers, Sale of Goods, p. 46. 
 
 ' Dig. 19. I. 13. 20: 22. I. 16. I : ib. 18. i : Cod. 4. 32. 2 : 4. 49. 5. 
 By the Code Civil, Art. 1652, 'I'acheteur doit I'interet du prix de la 
 vente jusqu'au paiement du capital dans les trois cas suivans : sil a 
 ete ainsi convenu lors de la vente : si la chose vendue et livree 
 produit des fruits ou autres revenus : si I'acheteur a ete somme de 
 payer. Dans ce dernier cas, I'interet ne court que depuis la som- 
 mation.' These rules are based upon Pothier, 2S3-289, but do not 
 seem quite in accord with the Civil Law : see the next note. 
 
 ^ From Cod. 4. 49. 13 it would seem that the purchaser's mora 
 (which as a rule dated from such demand) was a condition of the 
 liability to pay interest : but even assuming that this passage does 
 not relate to an unusual case (as is supposed by Glilck, Pandekten, 16. 
 p. 135), it cannot override the numerous authorities the other way. 
 So too in Cod. 4. 54. 5 it is said that where there is no express 
 agreement as to payment of interest, the purchaser is bound to pay 
 it ' ex mora duntaxat,' but the case is a peculiar one, in which the 
 vendor had neither delivered nor tendered the property before suing 
 for the purchase money : see Mommsen, Beitrage zum Obligatio- 
 nenrecht, iii. p. 237, note 5. 
 
 ' Pretii sorte licet post moram soluta, usurae peti non possunt, cum 
 hae non sint in obligatione, sed officio iudicis praestentur : Dig. 1 9. i . 49. i . 
 
THE PUECHASEE's DUTIES. 1 47 
 
 more than ordinary interest, even though he may be able 
 to show that he has lost more in consequence of being 
 deprived of his money 1. If the purchaser is prevented 
 from paying the price through no fault of his own— e. g. 
 by the vendor's absence, or his refusal to accept it when 
 tendered, or by his death followed by a dispute as to who 
 is his heir— he can relieve himself from the obligation to 
 pay interest by paying the money into court ^ : but if he 
 is in possession of the property he is not exempted from 
 paying it merely by the fact that he is entitled to withhold 
 the purchase money, as where an action to evict him has 
 been commenced by a third person ^. He is of course not 
 bound to pay either price or interest if the vendor disables 
 himself from performing the contract, or if performance 
 becomes impossible without any fault in the vendor, pro- 
 vided the latter is in mora — has failed, that is to say, to 
 deliver the goods after being requested to do so and having 
 the purchase money tendered to him *. 
 
 It is also the pui-chaser's duty, unless otherwise agreed, Pur- 
 to fetch and take away the property, or to accept delivery d^ty tJ" 
 of possession of land, as soon as the vendor is able or readv ?.'""^P* '•''■ 
 
 •' liTery, and 
 
 to deliver it — as a rule, immediately on the conclusion of to reim- 
 the contract ', and to reimburse him all reasonable costs vendor his 
 and charges which he may have been put to in connection •'"''"'S^*'- 
 with it, such as warehousing, repairs^, taxes'', keep of 
 
 ^ Dig. 18. 6. 20. ^ Dig. 22. I. 7 : ib. 18. i. 
 
 ' Dig. 19. I. 13. 20 & 21 : Pothier, 284. * Pothier, 279. 
 
 ° Si is qui lapides ex fundo emerit tollere eos nolit, ex vendito agi 
 cum 60 potest, ut eos tolleret, Dig. 19. i. 9: Pothier, 290: Bell's 
 Principles of the Law of Scotland, § 128. 'When the vendor has 
 tendered delivery, if there be no stipulated place, and no special 
 agreement that the vendor is to send the goods, the buyer must fetch 
 them : for it is settled law that the vendor need not aver nor prove 
 in an action against the buyer anything more than his own readiness 
 and willingness to deliver on payment of the price ' : Benjamin, p. 
 708 : Chalmers, Sale of Goods, p. 47. 
 
 ^ Dig. 19. I. 13. 22 : Pothier, 291. ^ Cod. 4. 49. 13 
 
 L 2 
 
mora. 
 
 148 THE PUECHASEE's DUTIES. 
 
 Conse- cattle^, Or maintenance of slaves^. If he fails to accept 
 the pur- delivery of the property at the vendor's request, or if a 
 chaser s time has been agreed upon for such delivery and he has 
 not come to take it, the vendor is no longer bound to show 
 any high degree of care in the charge of it, and is for the 
 future answerable only for wilful misconduct and gross 
 negligence ^- Moreover, where the goods are of a perish- 
 able nature, or where to retain them in his custody would 
 entail on him excessive inconvenience *, he may resell ^ 
 them, and in that case, if he has been paid he must hand 
 over what he gets for them to the original purchaser, who 
 has no ground for complaint if this is less than he agreed 
 to give for them himself, provided the vendor acts in good 
 faith and without extreme negligence, and does the best he 
 can for him consistently with his own interests : the pur- 
 chaser is equally entitled to the money, or to the surplus 
 if he has not paid the price which he promised himself, 
 if the second sale realises more than the first. Finally, the 
 purchaser is bound to save the vendor harmless from any 
 loss or detriment which his own fraud may have occasioned 
 him : thus, if desiring to buy a certain property or lot of 
 goods, he steals some of them, so as to induce the owner to 
 sell the residue more readily ^. 
 
 ^ Cod. 4. 49. 16. 2 j)jg_ jg_ j_ 28. I. 
 
 ' Dig. 18. 6. 15. pr. : ib. 18 : p. 107 supr. * Dig. 18. 6. I. 3. 
 
 ^ In the English law ' where the goods are of a perishable nature, 
 or where the unpaid seller gives notice to the buyer of his intention 
 to resell, and the buyer does not within a reasonable time pay or 
 tender the price, the unpaid seller may resell the goods and recover 
 from the original buyer damages for any loss occasioned by his 
 breach of contract. Where the seller expressly reserves a right of 
 resale in case the buyer should make default, and on the buyer 
 making default, resells the goods, the original contract of sale is 
 thereby rescinded, but without prejudice to the seller's claim for 
 damages': Chalmers, Sale of Goods, p. 73: Benjamin, pp. 791-805. 
 By the Code Civil, Art. 1653, the vendor can demand the rescission 
 of the contract if the purchaser does not pay the price. 
 
 " Dig. 19. I. 13. 5. 
 
THE VENDORS LIEN. 1 49 
 
 A chapter on the purchaser's duties is perhaps the most The Civil 
 appropriate place for a discussion of certain subjects jvhich thelubject 
 are more commonly associated with the rights of the of™n<ior's 
 vendor. English lawyers will look for some examination 
 of the question how far the doctrines of the vendor's lien 
 for unpaid purchase money, and of stoppage in transitu, 
 are derived from or have any counterpart in the Civil 
 Law. 
 
 The Roman vendor has substantially the same rights as 
 are included in the English lien, but they belong to him 
 as a matter of course, and are not the subject of any such 
 detailed exposition in the texts as would correspond to the 
 mass of authority in our own books, because of fundamental 
 differences between the two systems which have been 
 already explained. 
 
 By the English law, as has been seen, the property 
 usually passes by the contract. If then the purchaser 
 demands his goods from the vendor, who still has them 
 in his possession, before he has paid the price, we have a 
 kind of conflict between the logical consequences of a rule 
 of law and the conclusions which would be suggested by 
 considerations of abstract justice. The goods are no longer 
 the vendor's, so he ought to give them up : and yet on all 
 grounds of equity he ought to be allowed to retain pos- 
 session of them until he has received the purchase money. 
 The English doctrine on the subject ^, which is derived by 
 
 ^ Stated as follows by Chalmers, Sale of Goods, p. 59. sqq. : 
 43. — (i) Subject to tbe provisions of §§ 44 & 45, the unpaid seller 
 of goods who is in possession of them is entitled to retain posses- 
 sion of them until payment or tender of the price in the following 
 cases, namely : — 
 
 (a) When the goods have been sold -without any stipulation as to 
 
 credit ; 
 
 (b) When the goods have been sold on credit, but have been per- 
 
 mitted to remain in the seller's possession until the term of 
 credit has expired ; 
 
150 THE VENDOES LIEN. 
 
 Story ^, in the ease of purchases of land, from the Eoman 
 rule as to property not passing by delivery unless the 
 price is paid, appears to be an equitable qualification of 
 the unreasonable consequences which ensue from the rule 
 as to the passing of the property by the contract, engrafted 
 on that rule since its adoption about the beginning of the 
 sixteenth century. 
 
 But by the Eoman law the property did not pass by the 
 contract : it did not necessarily pass even by delivery. 
 The goods remained the vendor's until he had delivered 
 them, and he was not bound to deliver them until he had 
 been paid or at least offered the purchase money ^, unless 
 
 (c) When the buyer hecomes insolvent, whether the goods have 
 heen sold on credit or not ; 
 
 (2) Where the buyer is insolvent, the seller may exercise his right 
 of lien notwithstanding that he is in possession of the goods as agent 
 or bailee for the buyer. 
 
 44. Where an unpaid seller has made part delivery of the goods, 
 he may exercise his right of lien on the remainder, unless such part 
 delivery has been made under such circumstances as to show an in- 
 tention of waiving the lien. 
 
 45. — (i) The unpaid seller of goods loses his lien thereon : — 
 
 (a) When he delivers the goods to a carrier or other person for the 
 purpose of transmission to the buyer without reserving the right 
 of disposal of the goods ; 
 
 (6) When the buyer or his agent obtains possession of the goods 
 
 unless there be an agreement to the contrary ; 
 ^ (c) by waiver thereof. 
 
 (2) The unpaid seller of goods, having a lien thereon, does not lose 
 his lien by reason only that he has obtained judgment for the price 
 of the goods. 
 
 ■^ Equity Jurisprudence, §§ 1221, 1222. 
 
 ^ In Dig 19. 1. 13. 8 (' oflFerri pretium ab emptore debet, cum ex empto 
 agitur, et ideo etsi pretii partem offerat, nondum est ex empto actio : 
 venditor enim quasi pignus retinere potest eam rem quam vendidit ') 
 the words ' quasi pignus ' are misleading, for they suggest that (as in 
 English law) the vendor is no longer owner. If the vendor was 
 relieved by law (e.g. by bankruptcy, or novae tabulae) from the obli- 
 gation to pay, he could not enforce delivery : but if delivery was 
 made the vendor had no remedy : bona fides non patitur, ut cum 
 emptor alicuius legis beneflcio pecuniam rei venditae debere desisset 
 
THE vendor's lien. 151 
 
 he consented to take some security instead, or to give the 
 purchaser credit. The answer to the question, consequently, 
 whether under ordinary circumstances he might retain 
 possession until paid is obvious; his right to do so is 
 merely an incident of his continuing ownership. Similarly, 
 if he delivered the goods without either giving credit or 
 receiving any security for payment, no property passed, 
 and, if not paid, he could recover possession by action 
 in rem : nor apparently in such a case could the purchaser 
 acquire a prescriptive title to the goods, for he knew all 
 along that he was not the owner, and moreover possession 
 was not delivered to him with the intention of passing the 
 property. Where, however, the vendor had expressly or 
 by implication waived his right to immediate payment, 
 the matter stood otherwise. He was bound to deliver at 
 once, and by such delivery the property would pass. 
 
 The English lien in fact is a right which the possessing 
 vendor has over the goods, notwithstanding that the pro- 
 perty therein has passed to the purchaser, because the 
 latter has not paid the purchase money. In Roman law 
 the case cannot arise, except perhaps under circumstances 
 where by his own conduct the vendor has, or must be taken 
 to have, waived all possible claim to such a privilege — 
 where in short he has sold on credit, or received some sub- 
 stitute for immediate payment, and the goods have been 
 left in his possession as bailee or agent after actual delivery 
 to the purchaser. On the question whether, in such a case, 
 he would have any lien if the goods remained in his 
 possession until the term of credit had expired, there seems 
 to be no definite authority. 
 
 The right of stoppage in transitu is a right which the 
 
 antequam res ei tradatur, venditor traders compelletur et re sua care- 
 ret : possessions autem tradita futurum est, ut rem venditor aeque 
 amitteret, utpote cum petenti earn rem [emptor exceptionem rei 
 venditae et traditae opponere possit nee perinde sit, quasi earn rem] 
 petitor ei neque vendidisset neque tradidisset : Dig. 19. i. 50. 
 
152 STOPPAGE IN TRANSITU. 
 
 and unpaid vendor, who lias parted with the possession of, as 
 
 purdiase "^ell as the property in, the goods to a carrier or other 
 
 money. bailee for conveyance to the purchaser, has, under English 
 
 law, of stopping the goods in transit, on hearing that the 
 
 purchaser has become insolvent, with a view to resuming 
 
 possession 1. The Eoman law on the matter, as on that of 
 
 ■■ The law is thus stated by Chalmers, Sale of Goods, pp. 63, sqq : 
 46. Subject to the provisions of §§ 47-49, when the buyer of 
 goods becomes insolvent the unpaid seller who has parted with the 
 possession of the goods has the right of stopping them in transi- 
 tu, that is to say, he may resume possession of the goods as long as 
 they are in course of transit, and may retain them until payment or 
 tender of the price. 
 
 47. — (i) Goods are deemed to be in course of transit from the time 
 when they are delivered to a carrier by land or water, or other bailee, 
 for the purpose of transmission to the buyer, until the buyer, or his 
 agent in that behalf, takes delivery of them from such carrier or other 
 bailee. 
 
 (2) If the buyer or his agent in that behalf obtains delivery of the 
 goods before their arrival at the appointed destination, the transit is 
 at an end. 
 
 (3) If, after the arrival of the goods at the appointed destination, 
 the carrier or other bailee attorns to the buyer, or his agent, and con- 
 tinues in possession of them as bailee for the buyer, or his agent, the 
 transit is at an end, and it is immaterial that a further destination 
 for the goods may have been indicated by the buyer. 
 
 (4) If the goods are rejected by the buyer, and the carrier or 
 other bailee continues in possession of them, the transit is not 
 deemed to be at an end, even if the seller has refused to receive them 
 back. 
 
 (5) When goods are dehvered to a ship chartered by the buyer, it is 
 a question depending on the circumstances of the particular case, 
 whether they are in the possession of the master as a carrier, or as 
 agent or servant to the buyer. 
 
 (6) Where the carrier or other bailee wrongfully refuses to deliver 
 the goods to the buyer, or his agent in that behalf, the transit is 
 deemed to be at an end. 
 
 (7) Where part delivery of the goods has been made to the buyer, 
 or his agent in that behalf, the remainder of the goods may be stopped 
 in transitu unless such part delivery has been made under such cir- 
 cumstances as to show an agreement to give up possession of the 
 whole of the goods. 
 
STOPPAGE IN TRANSITU. 1 53 
 
 the vendor's lien, is not to be found explicitly stated in the 
 texts relating to the contract, but is to be inferred from 
 general principles. It would seem that there is only one 
 case in which there can be any difficulty. Speaking gene- 
 rally, the unpaid vendor is not divested of his property in 
 the goods even by delivery to the purchaser, and therefore 
 if in the case of the latter's insolvency he can recover 
 possession from him, he can obviously do the same from 
 a bailee to whom the goods have been delivered as his 
 agent for conveyance to him. If the vendor has given 
 credit, or received some security for payment, it is material 
 to consider who the person is to whom he entrusts the 
 goods for transmission. Such person may be agent either 
 for the vendor himself, or for the purchaser. In the first 
 case the vendor can clearly revoke the agent's authority 
 at any moment before the commission is executed by 
 delivery of the goods, and he will naturally do so if, before 
 such execution, he hears that the purchaser has become 
 insolvent. But supposing that the bailee to whom he 
 delivers the goods is the purchaser's agent, the vendor has 
 no right such as that of stoppage in transitu, for convey- 
 ance to the agent vests the property in the principal if it 
 was previously in the vendor himself. The latter can 
 
 (8) The riglit of stoppage in transitu may be determined by 
 waiver thereof on the part of the unpaid seller. 
 
 48. — (i) The unpaid seller may exercise his right of stoppage in 
 transitu either by taking actual possession of the goods, or by giving 
 notice of his claim to the carrier or other bailee in whose possession 
 the goods are. Such notice may be given either to the person 
 in actual possession of the goods or to his principal. In the latter 
 case, the notice, to be effectual, must be given at such time and under 
 such circumstances that the principal, by the exercise of reasonable 
 diligence, may communicate it to his servant or agent in time to pre- 
 vent a delivery to the buyer. 
 
 (2) When notice of stoppage in transitu is lawfully given to the 
 carrier, or other bailee in possession of th^goods, he must deliver the 
 goods to or according to the directions of the seller. 
 
154 STOPPAGE IN TEAJSrSITU. 
 
 protect himself in such cases only by a term in the con- 
 tract, and this by either of two expedients, each of which 
 goes beyond the right given in all cases, without express 
 agreement, by the English law. By the term known as 
 ' pactum reservati dominii ■" the vendor who agrees to give 
 credit may stipulate that, notwithstanding actual delivery 
 of the goods, no property in them shall pass to the pur- 
 chaser until the whole of the purchase money has been 
 paid, and such a term wiU be implied from an agreement 
 that until such payment the purchaser shall be entitled 
 only ' precario ^ ' or as under a contract of hiring ^ : or 
 (more simply) it may be agreed that in the event of the 
 purchaser becoming insolvent before the price is paid the 
 property (notwithstanding it having passed to the purchaser 
 owing to credit having been given) shall revest in the 
 vendor by the operation of a resolutive condition or con- 
 dition subsequent^. By the term which we may caU 
 'pactum reservatae hypothecae' the vendor who agrees 
 to give credit, and from whom the property passes by 
 delivery, may reserve a security over the goods entitUng 
 him to take possession in the event of non-payment, and 
 to sell them with a view to satisfying his claims against 
 the purchaser. But neither of these terms appear to have 
 been common among the Romans, and we may perhaps 
 conclude that the rights which the vendor had under the 
 ordinary law were in practice found sufficient to secure 
 him against loss of both the goods and the purchase 
 money *. 
 
 ' Dig. 43. 26. 20. '■' Dig. 18. 6. 17. 
 
 ' Gliick, Pandekten, 16. p. 233. 
 
 * In Gibson v. Cantithers (1841), 8. M. & W., p. 336 sq., Lord Abinger, 
 C.B., says that the right of stoppage in transitu seems to he general in 
 the mercantile law of the continental nations, but he does not connect 
 it with the Civil Law. But in Kendal v. MarshaJJ, Sterens §• Co. (1883), 
 II Q. B. D. at p. 361, Bowen, L. J., observed 'the right of stoppage 
 in transitu is founded upon mercantile rules, and is borrowed from 
 the custom of merchants : from their custom it has been engrafted 
 
STOPPAGE IN TEANSITU. I 55 
 
 upon the law of England. The doctrine was at variance with the 
 Civil Law, which laid down that although the goods had been sold upon 
 credit, and although the goods were in the possession of the vendee, 
 there might be recaption by the vendor if the vendee became insol- 
 vent.' The writer has been unable to find any text upon which this 
 statement can be supported : but it is probable that the case of which 
 the L. J. was thinking was one in which there had been a reservation 
 of either dominium or hj'potheca until the whole of the purchase 
 money had been paid. 
 
CHAPTEK XL 
 
 COXDITIOJIAL SALES. 
 
 OonJi- 
 tions in 
 general 
 distin- 
 guished 
 into sus- 
 pensive 
 .ind reso- 
 Intivo. 
 
 Conditions in general distinguished into suspensive and resolutive. 
 Conditions distinguished from terms in the contract. Conditions affirma- 
 tive and negative. Conditions attached for the benefit of the vendor. 
 U) Addictio in diem. "\Miat is a ' better offer ' ? Effects of addictio vi^hen 
 the condition is suspensive, and resolutive. ^Vhen is the condition satis- 
 fied ? Sales by auction, (ii) Lex eommissoria : the condition here always 
 resolutive : when it is satisfied. Effect of a sale subject to a lex eommis- 
 soria. Conditions attached for the benefit of the purchaser ; (1) emptio 
 adgustum ; (,ii) pactum displicentiae. Common tei-ms in sales ; reservation 
 by vendor of right of preemption ; pactum de retrovendendo and de 
 retroemendo. 
 
 Where the ordinary effect of a contract, whether of sale 
 or otherwise, is either suspended until the occurrence or 
 non-occurrence of some uncertain event, or is subjected by 
 the agreement of the parties, express or implied, to some 
 limitation, it is said to be made under a condition, and the 
 theory of conditions is perhaps more fully -worked out and 
 exemplified in connection with sale than with any other 
 disposition, whether belonging to the sphere of contract 
 or to some other branch of law, such as inheritances and 
 legacies. If the full effect of the contract is made to 
 depend on such occurrence or non-occurrence (as e.g. on 
 a purchaser's expressing himself satisfied with goods) the 
 condition is said to be suspensive : if, while the contract 
 produces at once its ordinary efiects, it is agreed that they 
 shall be cancelled, and that the avoidance shall relate 
 back to the date of its conclusion, on such occurrence or 
 non-occurrence, the condition is said to be resolutive — as. 
 
CONDITIONAL SALES. 157 
 
 e. g. where a sale is millified by the vendor's subsequently- 
 accepting an offer of a higher price from a third party ^. 
 In the first case the sale is conditional from the outset, and 
 there is no obligation until the condition is satisfied ^ : in 
 the second the sale is absolute, but is liable, as an English 
 lawyer would say, to defeasance on condition subsequent : 
 
 quotiens fundus in diem addicitur, utrum pura emptio est, 
 sed sub conditione resolvitur, an vero conditionalis sit 
 magis emptio, quaestionis est. Et milii videtur verius 
 interesse, quid actum sit : nam si quidem hoc actum est, 
 ut meliore allata conditione discedatur, erit pura emptio, 
 quae sub conditione resolvitur : sin autem hoe actum est, 
 ut perfieiatur emptio nisi melior conditio offeratur, erit 
 emptio conditionalis ^- 
 
 In many cases, as is evident from this passage, it is 
 uncertain whether the parties to the contract intended the 
 condition to be suspensive or resolutive : the presumption 
 of law would seem to be in favour of the latter, if the 
 property has been delivered, and of the former, if not. 
 Whether the condition is one whose fulfilment or non- 
 fulfilment depends on the will of either of the parties 
 themselves is immaterial. 
 
 A condition has to be distinguished from a term in the Condi- 
 
 . . tions 
 
 contract (pactum adiectum). The latter is where either distin- 
 
 party undertakes simultaneously with and as part of his f^"^ terms 
 
 contract *, to do some other thing or things as incidental ™ ^.^'^ , 
 ' ° ° contract. 
 
 ' L'obligation est conditionnelle lorsqu'on la fait dependre d'un 
 evenement futur et ineertain, soit en la suspendant jusqu'a oe que 
 I'evenement arrive, soit en la resiliant, salon que 1' evenement arrivera 
 ou n' arrivera pas : Code Civil, Art. 1 168. 
 
 ^ Dig. 20. I. 13. 5. 
 
 ' Ulpian in Dig. 18. 2. 2. pr. It would appear from the opinion of 
 Julianus, cited by Paulus in Dig. 41. 4. 2. 4, that in the earlier period 
 there was a strong presumption in favour of the condition of an in 
 diem addictio being held to be resolutive, and that even Paulus (loc. 
 cit.) leant to that view. 
 
 ' Dig. 18. I. 72. pr. 
 
158 CONDITIONAL SALES. 
 
 or ancillary to its main purpose, as where, for instance, in 
 selling land the vendor promises to give the purchaser a 
 lease of an adjoining estate^- To the lay mind it might 
 appear a matter of indifference whether I agree to take 
 your house at an annual rental of ^100, if you paper and 
 paint it throughout, or whether I agree to take it at that 
 rental in consideration of your undertaking to do so ; but 
 the difference is this, that whereas one can be compelled 
 to perform a term in the contract by the ordinary action 
 upon it, one cannot be sued for non-fulffhnent of a 
 condition, even though its fulfilment be in one's own 
 power ^. But pacta adiecta may, like the main contract, be 
 themselves subjected to a condition, either suspensive or 
 resolutive ^ 
 
 A condition may be for the benefit of, or rather the 
 contract may be conditional for, one of the parties only, 
 as where one attaches a condition to his assent, while the 
 other assents unconditionally : but unless this is clear, the 
 condition is to be deemed to affect both, and cases are 
 conceivable in which it is quite uncertain, at the moment 
 the contract was made, for whose benefit it will turn out to 
 have been annexed*. Where it is for the benefit of one 
 
 > E.g. Dig. 18. I. 79- 
 
 ^ Si vero sub conditione facta emptio est, non poterit agi ut conditio 
 impleatur : Dig. 18. i. 41. pr. 
 
 ' Whether a condition could by subsequent agreement be annexed 
 to a sale originally unconditional is to be regarded as questionable. As 
 to resolutive conditions there is no doubt : and, according to Paulus 
 (Dig. 18. 5. 7. pr.), it was equally true that a suspensive condition sub- 
 sequently agreed on was void. But it is diificult to deny to such a 
 pact, if attached to a purely executory contract, the effect (in general 
 beyond all doubt) of giving rise to an exception : and Paulus can 
 hardly have meant that a party who agrees to annex a condition to a 
 sale originally unconditional could enforce it before satisfaction of the 
 condition if the other pleaded some such defence as exceptio doli : of. 
 Treitschke, Kaufcontract, pp. 144-146. 
 
 ■* E. g. where goods on board ship and in transit are bought subject 
 to their arrival by a certain day. If they arrived late, and had risen 
 
CONDITIONAL SALES. 1 59 
 
 party, it can be waived by him alone : where it is imposed 
 for the benefit of both, whether expressly or by implication, 
 it can be discharged only by agreement. 
 
 An affirmative or positive condition is one which is Condi- 
 satisfied by the happening of something : a negative condi- mative 
 tion is one which is satisfied by something not happening, ?'.°'^ ^^^^' 
 and it is deemed to have been satisfied as soon as it is 
 certain that the event, on whose non- occurrence the contract 
 depends, cannot possibly happen, or (where a limit of time 
 has been fixed) has not happened within that limit. A 
 negative suspensive condition is liable to confusion with a 
 resolutive one, and a negative resolutive one with a suspen- 
 sive ^ : but their effects, as has been already indicated, are 
 totally different. A resolutive condition does not in any 
 way impede the existence of the ordinary effects of the 
 contract, such as the duties which it engenders, and the 
 passing of the risk to the purchaser : whereas none of these 
 effects ensue when the condition is suspensive until it is 
 fulfilled. Consequently a party who has made a contract 
 under a suspensive condition cannot be sued upon it until 
 the condition is satisfied ; while on the other hand where 
 the condition is resolutive there is no need to wait until it 
 is certain that it will not occur, but the contract can be 
 enforced at once, although on its occurrence (if affirmative), 
 or on its becoming certain that it cannot occur (if negative) 
 both parties, or the party in whose favour the condition 
 was annexed, can sue for the recovery of the property or of 
 the purchase money, as the case maj' be, on showing himself 
 to be ready to suri'ender the benefit which he may himself 
 have derived from the performance of the contract. Su fficient 
 
 in value, the condition would be for the benefit of the vendor : in the 
 converse case it would be for that of the purchaser. 
 
 ^ Si res ita distracta sit, ut si displicuisset inempta esset, constat 
 non esse sub conditione distractam, sed resolvi emptionem sub condi- 
 tione: Dig. i8. i. 3. 
 
i6o 
 
 CONDITIONAL SALES. 
 
 of the 
 vendor 
 
 (i) Ad- 
 dietio in 
 diem. 
 
 Condi- illuBtrations of these principles will be found in what 
 tiched'for follows relating to the most common sorts of conditions 
 thebenefit g^^j terms which are met with in sales. 
 
 These may be most conveniently considered according 
 as they are for the benefit of the vendor or for that of the 
 purchaser. The first will be exemplified by the pacts 
 known as addictio in diem and lex commissoria. 
 
 Addictio in diem^ is where it is agreed between the 
 parties that the sale shall be good (suspensive ^) or remain 
 good (resolutive condition) only if the vendor does not sell 
 the property to another purchaser on better terms (melior 
 conditio) within a fixed time ^ : 
 
 si in diem addictio ita fit : ille fundus centum esto tibi 
 emptus, nisi si quis intra calendas Januarias proximas 
 meliorem couditionem feeerit, quo res a domino abeat *- 
 
 It is commonly said that the presumption was in favour 
 of the condition being resolutive, but there seems no reason 
 for this view, except in cases where the vendor has delivered 
 the property without a reservation of ownership, which is 
 What is implied in the passage usually cited in support of it ^. Any 
 offer" ?**' ofi'er is deemed a better offer by which the vendor gets 
 
 ' Pothier, 445. The antiquity of this pact is attested by Plautus, 
 CapHvi, I. 2. 76 : ' emptum nisi quis meliorem adferet, quae mihi atque 
 amiois placeat conditio magis.' 
 
 ^ Such suspensive condition may be either negative, as in the passage 
 of Plautus cited, and in Dig. 18. 2. i : or affirmative, as in Dig. ib. 4. 3 : 
 in diem addicto fundo si melior conditio allata sit. 
 
 ' As is clear from the name of the pact, it is essential that a time 
 should be fixed : if there were none the pact would be void. 
 
 * Dig. 18. 2. I : cf. ib. 2. pr. Whether 'dominus' means the vendor 
 or the purchaser, or the one or the other according as the condition is 
 suspensive or resolutive, is much debated : see Gliick, Pandekten, 16. 
 p. 240, note 3. 
 
 " Si in diem addictio facta sit, id est, nisi si quis meliorem condi- 
 tionem attulerit, perfectam esse emptionem . . . JuHanus putabat : 
 alii, et hanc sub conditione esse contractam ; ille non contrahi, sed 
 resolvi dicebat, quae sententia vera est: Dig. 41. 4. 2. 4. 
 
.CONDITIONAL SALES. l6l 
 
 more favourable terms for himself^, whether a higher price, 
 or earlier or more convenient payment, or payment at a 
 more suitable place, or a more substantial purchaser, or 
 one who is willing to buy on easier conditions to the 
 vendor, or without sureties : or even one who, while offer- 
 ing a lower price, agi-ees to waive certain consequences of 
 the contract, or certain express terms, which were burden- 
 some to the vendor under the original sale, such as his 
 liability to make compensation for eviction, or for undis- 
 closed defects in the goods which form the subject matter 
 of the contract -- On the other hand, the requirement that 
 the offer shall be a better one is not satisfied merely 
 because, though the second bid is identical only in amount 
 with the first, the vendor obtains pecuniary compensation 
 for fruits taken from the property by the original purchaser,' 
 if in possession, and which would have been his had the 
 first sale not been disturbed ; for this advantage accrues to 
 him not from the second buyer, but in virtue of the law 
 relating to the contract ^ : indeed otherwise any second 
 buyer who offered no more than the first would be a buyer 
 on better terms, provided that the value of these fruits 
 were more than the interest on the purchase money, which 
 the vendor must pay to the first purchaser if he had been 
 paid and the sale falls to the ground, or which he loses if 
 the purchase money had not been paid at all*. Nor, 
 again, are the terms to be deemed better if the second 
 purchaser, while offering a higher price, bargains for some- 
 thinsr additional from the vendor, of sufficient value to 
 neutralise that advantage ', or if the payment of the price, 
 
 ^ Dig. i8. 2. 5 : Pothier, 447. 
 
 '^ Dig. 18. 2. 4. 6 : ib. 5 : ib. 15. i. 
 
 ' Dig. 18. 2. 14. 5. * Arg. Dig. 21. i. 29. 2. 
 
 ** Dig. 18. 2. 15. I. In Dig. ib. 19 tbis reasonable principle seems to 
 be controverted by Javolenus, who writes as if the validity of the 
 second sale made under these circumstances depended entirely on the 
 vendor's good faith ; but it is diflBcult to accept this view ; see Treitschke, 
 Kaufcontraet, p. 172. 
 
 M 
 
1 62 CONDITIONAL SALES. 
 
 though higher in amount, is so postponed by agreement 
 that the discount balances the increase ^. Moreover, it is 
 necessary that an actual and bona fide better offer shall be 
 made by a third party : the vendor cannot assume the role 
 of purchaser himself, except where two or more persons 
 have jointly sold property subject to an addictio in diem, 
 in which case one of them may offer a higher price than 
 the original purchaser for the whole, allowance of course 
 being made for the value of his own undivided share ^- A 
 better offer made by a pupillus without his guardian's 
 authorisation, if accepted, is sufficient to deprive the first 
 sale of all effect ^. If the vendor made a collusive arrange- 
 ment with a third person, who pretended to offer better 
 terms, in order to cancel the first sale for his own purposes, 
 or to force the first purchaser to offer better terms himself, 
 the latter's contract was unaffected : and if he accepted a 
 bona fide offer from a second purchaser who really offered 
 no more than the first, and pretended to the latter that he 
 had got more, he was liable on account of his fraud to both, 
 the first being entitled to the property, and the second to 
 damages*. Conversely, if the purchaser fraudulently con- 
 trived that the vendor should accept an offer from a third 
 person who was to his own knowledge insolvent, in order to 
 relieve himself from his contract, the second sale was 
 valid, but the vendor could recover compensation for fruits 
 which he had taken from the fii'st by action ex vendito, and 
 damages in addition for any other loss which the fraud 
 might have occasioned him *. 
 
 1 Dig. i8. 2. 15. i: Potlder, 448. 
 
 " Verum est autem vel unum ex venditoribus posse meliorem adferre 
 conditionem : emere enim cum tota re etiam nostram partem possu- 
 mus : Dig. 18. 2. 13. i, and see p. 23 supr. So too if two or more 
 persons make a joint purchase subject to an addictio in diem, one of 
 them alone can make a better offer: quum in diem duobus sociis 
 fundus sit addictus, uno ex his pretium adiiciente etiam pro ipsius 
 parte a priore venditione discedi rectius existimatur : Dig. 18. 2. iS. 
 
 ^ Dig. 18. 2. 14. 3. " Dig. 18. 2. 14. pr. « Dig. 18. 2. 14. i. 
 
CONDITIONAL SALES. 1 63 
 
 The effects of an addietio in diem, of course, are different Effects of 
 
 according as the condition is suspensive or resolutive. -vyiien the 
 
 (i) If the condition is suspensive, the contract, so far as condition 
 
 r ' 'is suspen- 
 
 relates to the consequences which would ordinarily ensue sive, 
 from it, is deemed not to have been made at all, until the 
 time has completely elapsed within which the property 
 might have been sold to a second purchaser. Even though 
 it is delivered, it is still at the vendor's risk ^, and the 
 purchaser has no right to its fruits, and no capacity to 
 acquire a title to it by usucapion ^. If the condition is 
 eventually fulfilled by no better offer being made and 
 accepted within the time limited, or if the vendor dies but 
 no heir accepts the inheritance before it has elapsed ^, the 
 sale becomes binding by relation back to the moment at 
 which it was first agreed upon, and its effects are as though 
 it had been unconditional from the outset, notwithstanding 
 the death of either party or both in the meanwhile : fruits 
 gathered since its conclusion belong to the purchaser * ; 
 usucapion by him becomes possible as from that moment ^, 
 and even though the property has in the meanwhile become 
 less valuable the loss falls upon him, unless of course the 
 depreciation was due to the fault of the vendor *. If a 
 better offer is in fact made to the latter, he is bound to give 
 the first purchaser notice of if, that he may have the 
 opportunity of retaining the property * : such notice 
 
 ^ P. 78 supr. ^ Dig. 18. 2. 4. pr. 
 
 ^ Dig. 18. 2. 15. pr. ' Dig. 18. 2. 6. pr. 
 
 = Dig. 41. 4. 2. 2. « Dig. 18. 6. 8. pr. 
 
 ' Dig. 18. 2. 8. 
 
 ^ Licet autem venditori meliore allata conditione addicere posteriori, 
 nisi piior paratus sit plus adicere. Necesse autem habebit venditor 
 .... priorem emptorem certiorem facere, ut si quid alius adicit, ipse 
 quoque adicere possit : Dig. 18. 2. 7 & 8. By the purchaser's 'adding 
 more ' is meant adding to his original offer, i. e. offering to buy the 
 property on the terms offered by the second bidder, as seems clear 
 from Dig. 49. 14. 50, though Dig. 4. 4. 35 makes the acceptance of this 
 construction rather diflScult. So Pothier, 452, 519: Gluck, Pandekten, 
 
 M 2 
 
1 64 CONDITIONAL SALES. 
 
 amounts to an offer to sell it to him, notwithstanding the 
 advance made by the second purchaser, on condition of his 
 ousting the latter, so that no acceptance by the vendor is 
 necessary in order to finally complete the contract, nor 
 can he choose between the offer of the second purchaser 
 and the equally good or better offer made by the first. If, 
 however, the second purchaser becomes the purchaser in 
 fact, the first must reimburse the vendor for all fruits 
 which he has gathered \ though he is entitled to be repaid 
 all necessary outlay which he has made on the property 
 while in his possession ^- The purchaser does not acquire 
 any right to the fruits^ that is to say, he is not reheved 
 from his obligation to pay for them, by the fact that he 
 consents to buy the property on the improved terms offered 
 by. the second purchaser ^, unless it has been otherwise 
 agreed ; for he gets the property by the later, not by the 
 original contract, 
 and reso- (ii) If the condition be resolutive, the sale is bindiog, 
 and produces all its usual effects, from the moment of its 
 conclusion, though it is liable to be defeated by the fulfil- 
 ment of the condition. The purchaser becomes owner of 
 the property by delivery, if the vendor had the right to 
 dispose of it, exactly as if there had been no condition 
 attached to the transaction at all, while if he had not, 
 usucapion runs in his favour*; he has all the ordinary 
 rights and remedies of an owner ' : he can mortgage and 
 create servitudes over it, and its fruits and accessions are 
 his ^- So too the loss falls on him if the property perishes 
 
 l6. 246, 259: Windsoheid, Lehrbuoli, § 323. Others (including Beoli- 
 mann, Kauf, II. § 251, and Treitsohke, Kaufcontract, p. 174) held that 
 ' plus ' cannot mean ' totidem,' and that in order to get the preference 
 the first buyer must outbid the second. But why should he be ousted 
 if he is willing to give the vendor precisely the same advantages ? 
 
 1 Dig. 18. 2. 6. pr. ' Dig. 18. 2. 16. 
 
 s Dig. 18. 2. 6. I : of. Dig. 18. i. 37. 
 
 * Dig. 18. 2. 2. I : 41. 4- 2. 4- 
 
 5 Dig. 18. 2. 4. 4- •• 6. I. 41- pr- ' Dig. 18. 2. 2. I. 
 
CONDITIONAL SALES. 1 65 
 
 before the condition is fulfilled, for the risk is his ^, though 
 if two things are bought for one price, one of which is 
 accidentally destroyed, and a third person is willing to buy 
 the one remaining for at least as much as the first purchaser 
 gave for both, this offer may be accepted by the vendor, 
 and such acceptance will avoid the original sale ^. If a 
 better offer is made and accepted within the time limited, 
 the first sale is defeated : the property re-vests in the 
 vendor : mortgages or servitudes created by the original 
 purchaser, unless assented to by him ^, are avoided * ; he 
 must reimburse the vendor for fruits and accessions which 
 he has taken ^, exactly as in the previous case, subject (as 
 there) to his right to be repaid all outlay on the property 
 which has been necessary ^ ; and he can recover the 
 purchase money if it has been paid'. The avoidance of 
 the contract, however, has no general retrospective opera- 
 tion : for praedial servitudes acquired by the purchaser 
 while the property was in his possession are not ex- 
 tinguished * : rights of action for damages done to it 
 during the same time can and must be assigned by him ^, 
 and the time during which he has possessed it ' ad usu- 
 capionem ' benefits the vendor and through him the second 
 purchaser ^''. 
 
 In order, however, to produce these effects, the offer of When is 
 the third person must have been accepted. As a rule, of dition 
 course, the vendor is free to accept it or not at his discre- satisfied ? 
 tion" : but he has not this option when what he is selling 
 is property over which he has got a mortgage, because a 
 refusal would be a fraud on the mortgagor, unless indeed 
 the offer is made by a person of no substance, acting in 
 
 1 Dig. 18. 2. 2. I : ib. 3. ' Dig. 18. 2. 4. 2. 
 
 => Dig. 39. 3. 9. * Dig- 18. 2.4. 3. 
 
 '^ Dig. 18. 2. 4. 4 : ib. 14. I. ^ Dig. 18. 2. 6. pr. 
 
 ' Dig. 18. 2. 16. * Arg. Dig. 8. 6. 11. i. 
 
 » Dig. 18. 2. 4. 4- '" Arg. Dig. 44- 3- 6. i : 4i' 3- 19- 
 
 ^1 Dig. 18. 2. 9 : Pothier, 449. 
 
1 66 CONDITIONAL SALES. 
 
 collusion with the latter in order to delay the sale of the 
 property ^ It is, however, lawful for the parties to agi-ee 
 that the purchaser shall be at liberty to terminate his own 
 contract on a second better offer being made to the vendor, 
 whether he chooses to accept it or not ^. If two or more 
 articles are sold together subject to an addictio in diem, 
 but each for its own distinct price, a better offer may be 
 made either for all together or for anyone of them in- 
 dividually : but if they are sold at different times or other- 
 wise by distinct contracts, a general offer to take the whole 
 together on improved terms will suffice to avoid those 
 contracts only if it is clear that the vendor will be better 
 off on each, considered by itself : otherwise those only will 
 be avoided in respect of which this is the case, and in the 
 event of doubt all will stand ^. Similarly, if two or more 
 persons jointly sell property under this kind of condition, 
 the assent of all to the acceptance of the better offer is 
 essential to the avoidance of the first sale*, unless the 
 property is divisible, and each sells his own share for a 
 distinct and separate price, in which case a better offer for 
 one portion can be accepted by its owner without rescind- 
 ing the original sale of the residue. Of course if the 
 original purchaser bought it expressly as a whole, and on 
 the condition that be should not be deprived of a part only 
 by the acceptance of a better offer by one alone of the joint 
 owners, this cannot be done ®. 
 
 The acceptance by the vendor of a better offer subject to 
 the condition of none better still being made within the 
 time fixed by the agreement with the first purchaser (a 
 second addictio in diem) does not affect the latter's con- 
 tingent rights, which can be cancelled only by an absolute 
 contract with a second purchaser, unless it was agreed at 
 
 1 Dig. i8. 2. lo. ^ Dig. l8. 2. 9. 
 
 '' Dig. 18. 2. 17. * Dig. 18. 2. II. I & 12 : Pothier, 450. 
 
 ^ Dig. 18. 2. 13 : Pothier, 451. 
 
CONDITIONAL SALES. 1 67 
 
 the outset by the parties, or was clearly their intention, 
 that those rights should be terminated by such a conditional 
 acceptance^. 
 
 An addictio in diem can be attached to a sale by express Sales by 
 convention only, and there is no case in which it is implied. ''"° '""■ 
 There are some, it is true, who apply the principles of this 
 transaction to public sales ordered by state authority, and 
 even to sales by auction in general ^ : but to do this con- 
 sistently would lead to strange results, among others, that 
 the auctioneer might sell the thing to one who had been 
 outbid by a later bidder, which would be against the com- 
 mon sense of the matter upon any view of its true legal 
 construction. The truth would seem to be that the law 
 relating to auctions is not laid down in the authorities, and 
 that consequently it has to be deduced from general prin- 
 ciples ; which no doubt explains why it has been so variously 
 expounded by different writers on the Civil Law. In point of 
 fact it can scarcely be doubted that no hard and fast abstract 
 rule can be stated, and that the matter turns upon the in- 
 tention of the seller or his agent, the auctioneer, as evidenced 
 by his words or conduct. If that intention is that the 
 highest bidder is to have the goods, without reference to 
 the relation between the amount of his bid and their real 
 value, then the vendor is the proposer, and the contract is 
 concluded by the making of the last bid, each bid being an 
 acceptance conditional on no higher bid being made ^, and 
 the presumption is in favour of the condition having been 
 
 ' Dig. 18. 2. II. pr. The passage is otherwise explained by Treitschke, 
 Kaufcontraot,p. 172, after Westphal, who thinks that the first contract 
 falls to the ground through such a conditional acceptance, provided 
 the second purchaser's obligation is no less binding than was that of 
 the first. 
 
 2 E. g. Gliick, Pandekten, 16 § 1005. 
 
 ^ Ihering, Jahrbuch, vii. pp. 167, 178, denies the possibility of an 
 offer or proposal being made ' in incertam personam ' or, as we say, to 
 all the world. The nearest Roman analogies are the jactus missihum 
 and legacies to incertae personae. 
 
1 58 CONDITIONAL SALES. 
 
 intended to be suspensive ^ On the other hand, if the 
 intention of the vendor is not necessarily to sell to any of the 
 bidders, the putting of the goods up is an invitation of offers 
 from those attending the sale, of which offers he is of course 
 not bound to accept any, and there is no contract until one 
 of them is accepted by him in fact ^- The best authorities 
 on the Civil Law^ are of opinion that where there is any 
 doubt it is to be presumed that this was what was intended, 
 and a majority of them seem to be in favour of the view 
 that, in the absence of evidence of a contrary intention, each 
 bid or offer is to be deemed to be withdrawn or to lapse as 
 
 1 Pothier, 518. 
 
 ^ The same distinction is drawn in English, law. The putting of an 
 article up for sale hy auction is an invitation of offers : each bid is an 
 offer, which may be withdrawn before it is accepted by the fall of the 
 hammer : Payne v. Care, 3 T. R. 148 : and the auctioneer is not bound 
 to accept any bid if he does not choose. But if the sale is announced 
 to be ' without reserve,' this is an undertaking ' that the goods shall be 
 sold to the highest bidder, whether the sum bid be equivalent to the 
 real value or not .... the auctioneer contracts that it shall be so, and 
 this contract is made -with the highest bona fide bidder' : per Martin, 
 B. in M'arloic v. Harrl.1011. 1 E. ci E. 295, 29 L. J. Q. B. 14. From this it 
 would seem that in such a case as this the putting of the goods up is 
 the offer : that each bid is a conditional acceptance, and that therefore 
 such bids cannot be withdrawn : but this is discountenanced by what 
 Lord Campbell said in Warhw v. Harrison. 
 
 The employment of puffers, i. e. of persons engaged to bid on behalf 
 of the vendor in order to force up the price against the pubKc, has 
 been held fraudulent since 1776 {Bexicen v. Christie, i Cowp. 395): and 
 the parties interested cannot in any case bid unless they have reserved 
 the right to do so : Dimmock v. Hallett, 2 Ch. 21 : Chalmers, Sale of 
 Goods, p. 89 : by 30 & 31 Vic. c. 4S, which however applies only to sales 
 of land, they may apparently even in that case only make one bid. 
 The authority for the Roman law as to puffers is Cicero : tollendum 
 est igitur ex rebus contrahendis omne mendacium, non licitatorem 
 venditor, nee qui contra se liceatur (reliceatur.?) emptor opponat : de 
 Off. iii. 15. cited in Warlow v. Harrison. Tor the Scotch law as to 
 sales by auction see Bell, Principles of the Law of Scotland, §§ 130- 
 
 132. 
 5 E. g. Vangerow, § 636, Windscheid, § 308, and other writers cited 
 
 by the latter in note 16. 
 
CONDITIONAL SALES, 1 69 
 
 soon as a higher bid is made, so that the vendor can accept 
 no bid except the highest : on the analogy of addictio in 
 diem of course he would be both bound and entitled to sell 
 to the first bidder rather than not sell at all. It also seems 
 to be very generally held that even where a bid is a mere 
 offer, and not a conditional acceptance, it cannot be re- 
 tracted ^, and this is explained by assuming a tacit ' pactum 
 de emendo,' or an implied undertaking that it shall not be 
 withdrawn. 
 
 A lex commissoria is where a sale is made on condition (ii) Lex 
 that the purchase money shall be paid by a day fixed, and soSaT^ 
 that in default it shall be voidable at the purchaser's 
 option ^- No doubt it was equally allowable to make the 
 condition in favour of the purchaser, entitling him to avoid 
 the contract in default of the property being delivered 
 within a prescribed period, but no instance of this form of 
 the proviso is found in the authorities. It might also be 
 agreed that in addition to the vendor's right of rescission 
 the purchaser should be bound to reimburse him the loss 
 which he sustained through selling the property, on failure 
 
 ' Gliick, Pandekten, 16. p. 269 : Ihering, Jahrbuch, loc. cit. : Van- 
 gerow, § 636, p. 441. 
 
 ^ By tlie French law of the eighteenth century a lex commissoria 
 did not entitle the vendor to rescind ipso iure ; he could only bring 
 an action to* have the contract declared void, and until judgment was 
 given in such action the purchaser might still save it by tendering the 
 money, notwithstanding that the time fixed for payment had elapsed : 
 Pothier, 459. This rule is in some measure preserved by the Code 
 Civil in respect of sales of immoveables, but in sales of moveables the 
 Civil Law is restored : s'il a ete stipule lors de la vente d'immeubles, 
 que, faute de paiement du prix dans le terme convenu, la vente serait 
 resolue de plein droit, I'acquereur peut neanmoins payer apres I'ex- 
 piration du delai, tant qu'il n'a pas ete mis en demeure par une 
 sommation : mais, apres cette sommation, le juge ne peut pas lui 
 accorder de delai. En matiere de vente de denrees et effets mobiliers, 
 la resolution de la vente aura lieu de plein droit et sans sommation, 
 au profit du vendeur, apres I'expiration du terme convenu pour le 
 retirement : Arts. 1656, 1657. For the reason of the distinction see 
 Demante, Cours analytique de Code Civil, pp. 125-127. 
 
170 CONDITIONAL SALES. 
 
 of the condition, at a lower price or on less favourable 
 terms to a third person i- The condition is always reso- 
 lutive : 
 
 the con- si fundus lege commissoria venierit, rnagis est ut sub 
 
 here conditione resolvi emptio, quam sub conditione contrahi 
 
 always videatur 2. 
 
 resolutive. 
 
 No doubt it might be agreed that the sale should not be 
 binding unless the purchase money were paid by a certain 
 day, in which case the condition would be suspensive : but 
 this would not be a lex commissoria in the proper sense, 
 because ' committere ' denotes the forfeiture of an actually 
 existing right ^. 
 When the The conditions of the operation of a lex commissoria are 
 issatisfied. tbree in number : a time must have been fixed within which 
 the purchase money must be paid * : the whole of that time 
 must have elapsed °, and some portion of the purchase 
 money at least must still remain unpaid at its termination. 
 The purchaser, in order to save the contract from liability 
 to rescission, was bound to tender the money, the vendor's 
 rights being in no way dependent on his having demanded 
 it ^ : indeed, demand by him before the day was premature'', 
 
 ' Dig. 18. 3. 4.-3. 
 
 ^ Dig. 18. 3. 1 : ib. 2. 4. 5 & 8 : cf. Dig. 41. 4. 2. 3 : 18. 2. 2. pr. : 44. 
 7. 23 : Cod. 4. 54. 3. 
 
 ' This however is denied by Gliiok, Pandekten, 16. p. 275. 
 
 ' Dig. 18. 3. 2 : ib. 4. pr. & 5. 
 
 '^ Inst. iii. 15. 2 : Dig. 45. i. 42. 
 
 ^ Marcellus libro vicensimo dubitat, commissoria utrum tunc locum 
 habet, si interpellatus non solvat, an vero si non optulerit, et magis 
 arbitror offerre eum debere, si vult se legis commissoriae potestate 
 solvere : Dig. 18. 3. 4. 4. 
 
 '' This of course assumes that a lex commissoria implies a giving of 
 credit during the term limited. This is denied by Bechmann, Kauf, 
 II. § 254 : ' wer sich ausbedingt, dass er nicht langer als bis zu einem 
 gevrissen Zeitpunct an den Vertrag gebunden ist, verpfhchtet sich damit 
 keineswegs ohne weiteres, bis zu diesem Zeitpunct mit der Geltend- 
 machung seiner Anspriiche zu warten, und selbst wenn Stundung vor- 
 liegt, so ist dieselbe nach romischer Anschauung noch nicht ohne 
 weiteres Creditirung mit der Wirkung des Eigenthumsubergangs.' 
 
CONDITIONAL SALES. 171 
 
 and a requisition to pay it, or acceptance of any portion of 
 it, after the period fixed for payment, was deemed an irre- 
 vocable waiver of the benefit of the condition 1. The failure 
 of the purchaser to pay, however, must not be in any way 
 attributable to the fault of the vendor — in refusing to 
 accept the money when tendered, for instance, or in absent- 
 ing himself without having left an agent duly authorised 
 to receive it^ — though in such cases it is advisable for a 
 purchaser who desires to avoid all imputation of negli- 
 gence to pay the money into court ^: nor is the purchaser 
 prejudiced if he withholds it on being served with a judicial 
 order not to pay the vendor at the instance of a creditor of 
 the latter*. Finally, it may be observed that the purchaser 
 is under no obligation to pay the purchase money so long 
 as the vendor fails to perform a duty undertaken by the 
 contract, performance of which was intended to be a con- 
 dition precedent to such payment : as where, for instance, it 
 is agreed that the former shall be entitled to retain a portion 
 of it until the latter has given him a surety for the pay- 
 ment of the sum due under a stipulatio duplae^. Even if 
 the vendor refused the money when properly tendered, he 
 might still avail himself of the condition in the event of the 
 purchaser's neglecting in fact to pay it by the day fixed, 
 unless his own object in refusing the original tender was 
 fraudulent ^. 
 
 A sale to which a lex commissoria is attached is of course 
 perfect from its inception, and produces all its ordinary 
 effects, so that what has been said of an addictio in diem 
 resolutiva '^ might be repeated here. If the condition fails 
 through the money not being paid by the day fixed, the 
 contract does not become ipso facto void, but the vendor 
 has the option of rescinding it : 
 
 ' Dig. 18. 3. 6. 2 : ib. 7 : Cod. 4. 54. 4. ^ Dig. 18. 3. 4. 4. 
 
 3 Cod. 4. 54. 7. ' Dig. 18. 3. 8. 
 
 « Dig. 18. 5. 10. I. ^ Arg. Dig. 19. l. 51. pr. 
 
 ' P. 164 supr. : see Dig. 18. 3. 2 : ib. 5 : Cod. 4. 54. i. 
 
172 CONDITIONAL SALES. 
 
 cum venditor fundi in lege ita caverit, ' si ad diem 
 peciinia soluta non sit, ut fundus inemptas sit,' ita 
 aecipitur inemptus esse fundus, si venditor inemptum 
 eum esse velit, quia id venditoris causa caveretur .... 
 nam legem commissoriam, quae in venditionibus adicitur, 
 si volet venditor exercebit, non etiam invitus ^ : 
 
 and if he determines to rescind it, the purchaser must 
 return him the property ^, and pay the value of fruits and 
 accessions which he has taken, as weil as make good any 
 damage or deterioration vsrhich it may have undergone 
 while in his possession ^ : further, he forfeits any arra 
 which he may have given *, though in the absence of agree- 
 ment to the contrary he is entitled to recover back any 
 portion of the purchase money which he may have paid, 
 but without interest ^. The reason why the vendor has the 
 option of adopting or avoiding the contract is well put by 
 Pomponius " : if the contract became ipso facto void on non- 
 payment of the purchase money it would always be in the 
 power of the purchaser, by withholding it, to rescind the 
 sale as from the moment of its conclusion, and so to throw 
 
 ^ Dig. 18. 3. 2 & 3. 
 
 ^ In the event of rescission the vendor cannot sue in rem for the pro- 
 perty, unless he has reserved the dominium, whether the purchaser 
 still has it in his possession or has alienated it to a third person, 
 because he gave the purchaser credit, and therefore the dominium 
 passed : Cod. 4. 54. 3. On this question see G-luck, Pandekten, 16. 
 p. 296. 
 
 " Dig. 18. 3. 4. pr. * Dig. 18. 3. 6. pr. 
 
 ^ The right to recover purchase money is denied by many (e.g. 
 Treitschke, Kaufcontract, p. 181 : Beohmann, Kauf, § 255) on the 
 ground of Dig. 18. 3. 4. I, and their view is confirmed by the Basilica. 
 But the question which Ulpian is there considering is whether on re- 
 scinding the contract the vendor can always recover the value of fruits 
 taken by the purchaser, and he agrees with Neratius that he cannot, if 
 part of the purchase money has been paid, and is forfeited by the pur- 
 chaser, either in consequence of express agreement to that effect, or 
 because given arrae nomine. 
 
 •^ Dig. 18. 3. 2. 
 
CONDITIONAL SALES. I 73 
 
 on the vendor the loss which , would result from accidental 
 destruction or damage occurring after delivery. The vendor 
 however was bound to rescind the sale, if he wished to do 
 so, within a short interval after the conclusion of the period 
 limited: Papinian was of opinion that he must do it 
 ' statim,' at once ^, but this is scarcely reconcileable with 
 passages to which reference has been already made, and 
 which explain the modes in which he could ratify it by 
 implication. It is obvious that if he were not under this 
 obligation, he could do the purchaser an injury similar to 
 that which the latter could do him if the contract were ipso 
 facto avoided if the money were not paid by the day limited. 
 Some writers even contend that if the purchaser tendered 
 the money before he declared himself, the right of rescission 
 was thereby lost, but this seems to be clearly wrong ^. 
 Analogy with other cases, however, would allow the pur- 
 chaser to apply to a court to fix a time within which he 
 must make his choice, under penalty of the election passing 
 to the former. 
 
 A lex commissoria is never presumed: that is to say, 
 unless it is agreed when the contract is made that it shall 
 be voidable at the vendor's option unless the purchase 
 money is paid by a day fixed, the vendor cannot treat it, 
 on default in payment, as no longer binding : he can only 
 sue for the money ^ and for damages *. 
 
 The conditions most commonly attached to contracts of Con- 
 sale in the interest of the purchaser are those relieving him tached for 
 from liability if after trial and examination he shall not be ^'j^^f ^he 
 satisfied with the goods: they fall under the heads of purchaser; 
 emptio ad gustum ^ and pactum displicentiae ^. 
 
 1 Dig. i8. 3. 4. 2. 
 
 ^ Cf. Dig. 44. 7. 23 : de illo sane potest dubitari, si interpellatus 
 ipse moram fecerit, an quamvis pecuniam postea offerat, nihilominus 
 poena committatur : et hoc rectius dicitur : see Pothier, 459. 
 
 3 Cod. 4. 38. 8. 9 & 12. * Cod. 4. 44. 14. 
 
 ^ Dig. 18. I. 34. 5. ' Dig. 18. I. 3. 
 
174 CONDITIONAL SALES. 
 
 (i) Emptio An emptio ad gustum, which has already been considered 
 gus um. ^^^j^ reference to the question at whose risk the property 
 is, pending examination by the purchaser, may be made 
 subject to either a suspensive or a resolutive condition. 
 In the first case the vendor is bound to sell the goods to 
 the purchaser at the price agreed upon if the latter should 
 duly express his satisfaction with them : he is bound from 
 the outset, though conditionally, in this sense that he is 
 not at liberty to sell them to another person pending the 
 fulfilment of the condition. On the other hand, the pur- 
 chaser is not bound at all until the condition is satisfied, 
 though whether it shall be satisfied depends on his own 
 will alone, so that here we seem to have a very near ap- 
 proach to a non-synallagmatic sale ^ : when he has once 
 expressed himself satisfied with the goods, both the vendor 
 and himself are irrevocably bound ^, with all the usual 
 efiects incident to a contract made subject to a suspensive 
 condition which is fulfilled ^. In the second case, where 
 the condition is resolutive, the contract is absolutely bind- 
 ing from its inception, but is liable to be avoided, with all 
 its consequences, by the purchaser's rejecting the goods * : 
 the effects of this need not be further examined after the 
 ample illustration which they have received from the cases 
 of addictio in diem and lex commissoria ^. The question 
 how long the purchaser is allowed in order to examine the 
 goods, where no limit of time has been fixed by agreement, 
 has been discussed in a previous chapter ^. 
 
 ^ See p. 2 supr. : and cf. Beohmann, Kauf, II. pp. 212-251. 
 
 ^ Inst. iii. 23. 4 : Dig. 19. 5. 20. pr. & i. 
 
 ' P. 163 supr. * Dig. 19. 5. 20. pr. ; 18. 5. 6. 
 
 ' Pp. 164, 171 supr. 
 
 * P. 8 1 supr. Similar transactions in English law are known as sales 
 ' on trial ' or ' on approval,' and ' sale or return.' 
 
 In a sale on trial or approval the condition is suspensive ; ' there is 
 no sale till the approval is given, either expressly or hy implication 
 resulting from keeping the goods beyond the time allowed for trial ' : 
 
CONDITIONAL SALES. I 75 
 
 A pactum displicentiae is a resolutive condition annexed (ii) Pic- 
 to the contract by the purchaser, to the effect that he shall piicentiae. 
 be at liberty to rescind it at his option ^ by returning the 
 goods to the vendor, and not (as in the previous case) by 
 merely expressing himself dissatisfied with them, and to 
 receive back his purchase money, if already paid, or other- 
 wise be discharged from all obligation to pay it ^. If no 
 limit of time were agreed upon within which the parchaser 
 must exercise his option, it was provided by the ^dilician 
 Edict that he must do so within sixty days ^, though the 
 time would be extended if he could prove that he was 
 prevented from availing himself of the condition earlier by 
 
 Benjamin, p. 593 (cited with approval as a correct statement of the 
 law by Denman, J., in Elphich v. Barnes, 5 C. P. D. p. 326) : and where 
 such a time is fixed the buyer is at liberty to change his mind during 
 the whole term, and this right is not affected by his telling the vendor 
 in the interval that the price does not suit him, if he still retains pos- 
 session of the article (Ellis v. Mortimer, I B. & P. N. R. 257). The 
 bargain called ' sale or return ' is a sale in which the buyer is entitled 
 to return the goods at his option within a reasonable time : the pro- 
 perty passes, and an action for goods sold and delivered will lie, if the 
 goods are not returned to the vendor, within such time : Mossy. Siveet, 
 16 Q. B. 493 : cf. Head v. Tattersall, L. R. 7. Ex. 7. 
 
 ■' According to Bechmann, Kauf, II. p. 544, only by bringing an 
 action, not by simply returning the goods. This view is based on the 
 connection which existed between the law on this subject and the 
 .Sldilician Edict (which will be examined in the next chapter) : ' der 
 Zusammenhang ist klar : nach diesem Edict kann der Kauf riickgangig 
 gemacht werden auf Grund hervortretender Mangel : es kann aber 
 vertragsmassig die Ruckgangigmachung einfach in das Missfallen des 
 Kaufers verstellt werden. 
 
 ^ Dig. 18. I. 3 : 19. 5. 20 : 21. l. 31. 22. The difference between this 
 case and a resolutive condition proper has been pointed out on p. 80 
 supr. 
 
 ' Si quid ita venierit ut, nisi placuerit, intra praefinitum tempus 
 redhibeatur, ea conventio rata habetur : si autem de tempore nihil 
 convenerit, in factum actio intra sexaginta dies utiles accommodatur 
 emptori ad redhibendum, ultra non : Dig. 21. i. 31. 22. Bechmann, 
 Kauf, II. § 258, thinks that the time related not to a declaration of 
 dissatisfaction by the purchaser, but to the institution of an action by 
 him to get the sale rescinded. 
 
176 CONDITIONAL SALES. 
 
 causes beyond his own control, and Ulpian was even of 
 opinion that the rule might be entirely excluded by agree- 
 ment made at the outset, and the purchaser be allowed to 
 return the goods at any length of time he pleased from the 
 conclusion of the contract^. The principles of the actio 
 redhibitoria were applied to this case by the -iHdiles, so 
 that (contrary to the usual rule in resolutive conditions) 
 the goods were at the vendor's risk throughout ^- 
 Common This is perhaps the most convenient place to mention 
 sales; re- briefly Certain terms which were sometimes embodied in 
 r'^vendor Contracts of sale, (i) The agreement that if the purchaser 
 of right thought of selling the property, the vendor should have a 
 
 of pre- 
 
 emption : right of pre-emption ^, either on terms arranged when the 
 original contract was made, or on the terms offered by any 
 tliird person who might be willing to buy it. When created 
 by agreement such right, being in fersonam, availed only 
 against the fii'st purchaser, and not against any other person 
 to whom notwithstanding the agreement the property might 
 have been sold and dehvered : but it might be created also 
 by will, and was in certain cases given by law^. (2) The 
 pactum de agreement that the purchaser should be bound to resell the 
 dendo, property to the vendor either in certain contingencies ' or 
 on demand (pactum de retrovendendo ''). Usually of course 
 the price at which it was to be resold was fixed at the time 
 of the original sale : otherwise, according to some, it was 
 understood to be the price paid to the vendor himself, while 
 according to others it had to be determiaed by arbitration. 
 Usually, too, a time was limited within which alone the 
 vendor could demand a resale of the propei-ty'': in the 
 
 ' Dig. loc. cit. 
 
 ■' Dig. 21. I. 31. 24 : ib. 47. i & 48 : Vangerow, Pandekten, § 635. 
 ' Dig. 18. I. 75 : 19. I. 21. 5. In both passages the agreement is to 
 sell to no one except the vendor. 
 * E. g. in Emphyteusis, Cod. 4. 66. 3. 
 
 » E.g. Dig. 19. s. 12. ^ Cod. 4. 54. 2 : ib. 6 & 7. 
 
 ^ E. g. Cod. 4. 54. 7. 
 
CONDITIONAL SALES. 1 77 
 
 absence of such limitation his right of enforcing the pact 
 was subject to the ordinary limitation of thirty years, 
 though there is no agreement as to the precise time from 
 which such limitation began to run'^. On tender of the 
 money within the time allowed, the purchaser was bound 
 to reconvey the property: but if in contravention of the 
 pact he had in the meanwhile sold and delivered it to some 
 third person the vendor had no rights against the latter, 
 but was confined to his action for damages against his own 
 purchaser. Fruits gathered by the latter while the property 
 was vested in himself were his, and had not to be accounted 
 for^, for the pact did not operate like a resolutive con- 
 dition ^. 
 
 Occasionally it was agreed that the vendor should be and de 
 under a similar obligation to buy the property back on the emendo. 
 purchaser's requisition (pactum de retro-emendo). 
 
 ' See Treitschke, Kaufcontract, pp. 204, 205 : Gluck, Pandekten, 16.. 
 § 998 : Pothier, 391. 
 
 ^ Pothier, 405 sqq. 
 
 '' Pothier, 429. This right of repurchase, under the name of Droit 
 de Remere, seems to have been commonly annexed by agreement to 
 sales of land in Prance, and is treated at great length by Pothier, 
 385-444. It also forms the subject of fifteen articles (1659-1673) in, 
 the Code Civil : but the authorities on the subject are so scanty that 
 it can hardly have been much used among the Romans. 
 
 N 
 
CHAPTEE XII. 
 
 MODES OP DISCHAEGB. 
 
 Contraria volunta?, or mutual waiver before performance by either 
 party. Partial discharge by subsequent variation of terms. Eescission 
 by the vendor for inadequacy of price (laesio enormia) : difficulties of the 
 texts on the subject. When the price is to be deemed inadequate. The 
 courses open to the vendor. Effect of successful action for rescission. 
 Cases in vrhich the vendor may not rescind ; other doubtful cases. 
 The purchaser's right of rescission on account of undisclosed defects. 
 Historical sketch of the vendor's liability for non-disclosure ; the old Civil 
 Law : the practice of exacting a covenant as to quality : the Aedilician 
 Edict. Extension of its rules to all sales by juristic construction. AYhat 
 defects render the contract liable to rescission ? Distinction between 
 slaves and animals. The defect must exist at the date of the contract, and 
 be unknown to the purchaser. Purchase by agents with knowledge. 
 Defect in accessions : in one of several things purchased together : in part 
 of an universitas. Vendor's duty to disclose defects of these kinds. The 
 purchaser's remedies : (i) by exceptio : (2) by actio redhibitoria. Effects 
 of this action : what must be done by the purchaser, and by the vendor. 
 Covenants sometimes demandable by either party. Points in which the 
 parties are differently treated under the actio redhibitoria. The period 
 of limitation. (3) By actio quanti minoris or aestimatoria : its period of 
 limitation and effects. Reaction of these .Sdilician remedies on those of 
 the Civil Law. Cases in which they are inapplicable. Note A. Implied 
 warranty of quality in Scotch and English Law. 
 
 Certain ways in which a contract of sale could be avoided 
 have already been examined in the preceding chaptei", and 
 it will be unnecessary to repeat what has been there said 
 respecting them. With one exception, it is not proposed 
 here to enter upon a discussion of modes of dischai-ge 
 which are common to other contracts, or at any rate to 
 those which along with sale are termed Consensual. The 
 exception is that method of terminating a consensual obli- 
 
MODES OP DISOHAEGE. 179 
 
 gation known as 'contraria voluntas^': the rest of this 
 chapter will be occupied with an examination of certain 
 grounds upon which either vendor or purchaser was allowed 
 by law to rescind a sale which he had validly contracted. 
 
 So long as nothing has been done in fulfilment of the Contraria 
 contract by either party (re Integra) it can be discharged or mutual 
 by their agreeing to be off their bargain 2, and this is ^^^''^gj.^''" 
 merely an application of the principle often cited by formance 
 English judges that an obligation ex contractu can be party, 
 dissolved by a process con'esponding to that by which it 
 was incurred^. Such agreement amounts to a mutual 
 waiver, or undertaking not to sue upon the promise of 
 the other party, which in relation to an obligation of the 
 bonae fidei class did not require to be inserted, in the guise 
 of an exceptio, in the formula of the action*: and the 
 equitable character of the contract required that the waiver 
 should be mutual, so that even where one of the parties 
 alone released the other by a formal admission of perform- 
 ance (acceptilatio) it operated as a discharge for both ^. 
 
 The requirement that the res must still be 'Integra 
 means that nothing must have been done in performance 
 of the contract. Mere delivery of possession, however, by 
 the vendor does not suffice to prevent a mutual waiver, for 
 the property is still in him, and the waiver will disable the 
 purchaser from setting up the exceptio rei venditae et 
 traditae ^, and similarly the novation of the contract is no 
 
 ^ Inst. iii. 29. 4. 
 
 ^ Abire, discedere ab emptione : Dig. 18. i. 6. 2 : 18. 5. i : ib. 5. 
 
 ' Nihil tarn naturale est quam eo genere quidque dissolvere quo col- 
 ligatum est : ideo verborum obligatio verbis tolKtur, nudi consensus 
 obligatio nudo consensu dissolvitur: Dig. 50. 17. 35 : of. ib. 153. 
 
 * Adeo autem bonae fidei iudiciis exceptiones postea factae, quae ex 
 eodem sunt contractu, insunt, ut constet in emptione caeterisque bonae 
 fidei iudiciis re nondum secuta posse abiri ab emptione : Dig. 2. 14. 
 7. 6 : cf. ib. 27. 2. 
 
 ° Dig. 46. 4. 23 : cf. ib. 19 ; Dig. 2. 14. 27. 9 : 44. 7. 47. 
 
 ' Dig. 2. 14. 52. 
 
 N 2 
 
i8o 
 
 MODES OF DISCHAEGB. 
 
 Partial 
 
 discharge 
 by subse- 
 quent 
 variation 
 of terms. 
 
 obstacle to its practical dissolution by contraria voluntas ^. 
 But if one of the parties had performed his side of the 
 contract, it could be agreed that, on the return of what 
 had been given, nothing should be due from the other ^, 
 the waiver being unilateral and subject to a condition 
 precedent : though in order to bind the other to return 
 what he had received a stipulation was necessary ^. 
 
 Finally, as a contract of sale might be absolutely dis- 
 charged by subsequent agreement, so it might be partially, 
 by the elimination of some of its terms, or by their being 
 subjected to some modification which did not constitute a 
 material addition to the duties undertaken by the parties : 
 
 pacta conventa, quae postea facta detrahunt aliquid 
 emptioni, contineri contractu videntur : quae vero ad- 
 iiciunt, eredimus non inesse *. 
 
 By an alteration in the amount of the purchase money 
 the original contract was deemed to be wholly discharged, 
 because its very essence lay in the price fixed upon at the 
 outset*. A conditional sale was rescinded at once by a 
 new agreement to the same effect, but omitting the condi- 
 tion ^ : while if a condition were subsequently attached to 
 a sale originally absolute the latter was unaffected by the 
 conditional agreement until the condition was fulfilled ''. 
 Rescission The Vendor has the right of rescinding a sale if the price 
 vendor for agreed upon is less than half the true value of the thing sold 
 "uao^'of C^^®®^*^ enormis, seu ultra dimidium), unless the purchaser 
 price will pay so much more as will make the price a fair one. 
 
 (laesio _i, .... 
 
 enormis) : J-his principle Seems to have been quite unknown to 
 the earlier law, which left the parties to make their own 
 bargain, and in the absence of fraud would assist neither 
 
 Dig. 2. 14. 58. 
 
 1 Dig. 18. 5. 3. 
 
 ' Arg. Cod. 4. 45. 2. 
 
 * Dig. 18. I. 72. pr. : cf. Dig. 2. 14. 7. 6 : 18. 5. 2 : ib. 4. 
 
 = Dig. 18. I. 72. pr. 6 Pothier, 327. 
 
 ■^ Dig. 18. 5. 7. pr. 
 
LAESIO ENOEMIS. l8l 
 
 to undo an engagement into which he had voluntarily 
 entered ^ The first trace of it is found in two rescripts 
 of Diocletian and Maximian in 385 and 395 a. D.^^ which 
 do not appear to have been understood as laying down a 
 general rule of law, but to have given extraordinary relief 
 in a case of great hardship without being intended to be 
 followed in subsequent similar cases, for there are constitu- 
 tions of Constantine and later empei'ors in the Theodosian 
 Code ^ in which it is emphatically laid down that, unless 
 there has been fraud, no sale can be rescinded for mere 
 inadequacy of price. These enactments however were 
 adopted^ as containing a general rule of law, in his Code 
 by Justinian, who either omitted the inconsistent dicta of 
 
 ' Idem Pomponiua ait, in pretio emptionis et venditonis naturaliter 
 licere contratentibus se ciroumvenire : Dig. 4. 4. 16. 4 : quemadmo- 
 dum in emendo et vendendo naturaliter concessum est quod pluris sit 
 minoris emere, quod minoris sit pluris venders, et ita invicem se cir- 
 cumsoribere : Dig. ig. 2. 22. 3 : of. ib. 23. 
 
 ^ Eem maioris pretii si tu vel pater tuus minoris pretii distraxerit, 
 liumauum est ut vel pretium te restituente emptoribus fundum vendi- 
 tum recipias, auotoritate iudicis intercedeute, vel si emptor elegerit, 
 quod deest iusto pretio recipias. Minus autem pretium esse videtur, si 
 nee dimidia pars veri pretii soluta sit : Cod. 4. 44. 2. 
 
 Si voluntate tua fundum tuum filius tuus venumdedit, dolus ex cal- 
 liditate atque insidia emptoris argui debet, vel metus mortis vel cruci- 
 atus corporis imminens detegi, ne habeatur rata venditio. Hoc enini 
 solum, quod paulo minore pretio fundum venditum significas, ad 
 rescindendam venditionem invaUdum est. Quodsi videlicet contractus 
 emptionis atque venditionis cogitasses substantiam, et quod emptor 
 viUore comparandi venditor cariore distrahendi votum gerentes ad 
 hunc contractum accedant, vixque post multas contentiones, paulatim 
 venditore de eo, quod petierat, detrahente, emptore autem buic, quod 
 obtulerat, addente, ad certum consentiant pretium, profecto perspi- 
 ceres, neque bonam fidem., quse emptionis atque venditionis conven- 
 tionem tuetur, pati, neque uUam rationem concedere, rescind! propter 
 hoc consensu finitum contractum vel statim, vel post pretii quanti- 
 tatis disceptationem : nisi minus dimidia iusti pretii, quod fuerat tem- 
 pore venditionis, datum est, electione iam emptori praestita servanda ; 
 Cod. ib. 8. 
 
 2 3. I. I. 4 & 7. 
 
1 82 LAESIO ENORMIS. 
 
 the Emperors after Diocletian^ or so altered them as no 
 longer to conflict with the law laid down by this Emperor. 
 They have given rise to a vast amount of controversy, 
 difficulties Taken literally, they give the right of rescission to the 
 on the vendor only, and in no case to the purchaser, and they 
 subject, strongly appear to relate only to sales of land. Writers on 
 the theoretical side of the law ^ seem for the most part to 
 incline to the view that as they are opposed to the general 
 principles of the law of sale, as stated elsewhere in the 
 Corpus Juris, they must be construed strictly, and not 
 extended ^ : and this contention is supported by the reason 
 underlying these rescripts, for people are often driven by 
 an overwhelming necessity to sell property on the spur of 
 the moment at a great undervalue, while one is practically 
 never obliged to buy too high unless one chooses. In 
 practice, on the other hand, they have been variously taken 
 to cover sales of moveables ^ no less than of immoveables, 
 to confer on the purchaser^ a right equivalent to that 
 undoubtedly given by the terms of the law to the vendor, 
 and even to apply to transactions other than sales, but of 
 a similar character, such as hirings and exchanges ''. 
 
 ' See the names cited in Gliick, 17 pp. 27 sqq. Among more recent 
 writers may be mentioned Vangerow, iii. §611, note: Windscheid, 
 § 3961 note 2 : and Wachter, § 20 . 
 
 * In the law of France, as stated by Pothier (339) the rule applied 
 only to sales of land and rights over land, but the purchaser had a 
 corresponding right to that of the vendor (372 sqq). In the Code 
 Civil (arts. 1674-1685) the right belongs to the vendor only, and only 
 on a sale of an immovable , but a ' lesion ' is newly defined as a sale 
 at less than seven-twelfths of the true value. 
 
 ' This may perhaps be justified by the use of the word ' rem ' at 
 the commencement of Cod. 4. 44. 2, and by general considerations of 
 the object (equity: 'humanum est') aimed at by that enactment: 
 see Gliick, 17. pp. 51. 52. 
 
 * For a discussion of the alleged right of the purchaser see Pothier, 
 372-384, and Gliick, 17. pp. 27-50. There seems to be no agreement 
 as to what constitutes a laesio enormis on his side. 
 
 ° This wide extension is given to the law, for instance, in the 
 
LAESIO BNOEMIS. 1 83 
 
 The vendor is entitled to rescind when the purchase money When the 
 is less than one-half the true value of the thing sold : but brdeemed 
 this right lapses if the purchaser is wiUing to pay so much ^nade- 
 in addition as will make the price ' iustum ' ^. Some 
 writers have supposed that by iustum pretium is meant 
 merely half the true value, and that consequently the 
 purchaser is entitled to retain the land or goods if he 
 wiU pay so much in the aggregate as would, if originally 
 agreed upon, have excluded the vendor's right of rescission: 
 but the prevailing view, which is uniformly followed in 
 the tribunals where the Civil Law obtains ^, is that he must 
 pay the true value^i. e. more than double what he has 
 agreed to pay ^. It is also held that it was not the inten- 
 tion of the legislator to impose any further liability on 
 the purchaser for mesne profits, or to pay interest on the 
 additional purchase money from the date of the contract : 
 he is to pay only ' quod deest iusto pretio ' *. 
 
 The true value is declared by the enactment to be that 
 which the thing possessed at the time when the contract 
 was concluded, any increase or diminution in the mean- 
 while being immaterial. On general principles, this is to 
 be ascertained by the judgment of experts ^ 
 
 The vendor who has suffered a laesio enormis can assert The 
 his rights either by exception or by action. The first is ppen^to 
 the appropriate method when he has not yet delivered the *j^^ ">'®"- 
 property, and is sued for such delivery by an actio ex 
 
 Austrian burgerliches Gesetzbuch, § § 934, 935. See Holtzendorff, 
 Rechtslexicon, II. p. 624. 
 
 1 Cod. 4. 44. 8. ^ Gliiok, 17. pp. 53, 54- 
 
 ' By the French Code Civil the purchaser, in order to escape rescis- 
 sion, must pay a price equivalent to nine-tenths of the true value, 
 with interest on the balance from the date of the contract : Arts. 1681, 
 1682. 
 
 * Pothier, 336. 
 
 ^ On this subject see Treitschke, Kaufcontract, § 104 : Gluck, 17. 
 pp. 56-66. 
 
1 84 LAESIO ENOEMIS. 
 
 empto: the second, when he has made conveyance, and 
 seeks to procure the rescission of the contract with a view 
 to the revesting of the property in himself, on condition of 
 repaying the purchase money, if already received. In this 
 case the defendant has the option of suiTendering the pro- 
 perty, or of retaining it on making the requisite addition 
 to the price ; a consequence of which is that if it perishes 
 while in the defendant's possession, but without fraud on 
 his part, before judgment, the plaintiff's action must fail. 
 The precise character of the action has been much debated^, 
 but the majority of the authorities hold it to be no other 
 than the ordinary action ex vendito, which was used for 
 the rescission of the contract in other cases ^. Both ex- 
 ception and action devolve on the vendor's heirs, and the 
 first might be used by his surety no less than by himself. 
 Of course the action, being personal, could be brought only 
 against the purchaser or his heirs, so that, if he has con- 
 veyed the property to a third person, no proceedings can 
 be taken against the latter, nor is he himself suable unless 
 his alienation was fraudulent, or he has made money by 
 the transaction. 
 Effects of If the vendor succeeds in his action, the property and 
 action for ^^^ purchase money have to be respectively restored, the 
 rescission, parties thus being replaced in statum quo ante. Whether 
 the vendor must pay interest on the purchase money for 
 the period during which it has been in his hands, and the 
 purchaser in turn compensate him for the value of fruits 
 which he has enjoyed ^, is a point upon which the text of 
 the law throws no light, but which on general principles 
 
 ' Some contend that it should be a condictio ' ex lege,' others a con- 
 dictio indebiti, others a ' civil ' in integrum restitutio. Pothier (331) 
 calls it an actio utilis in rem : ' le vendeur revendique la chose, comme 
 si elle n'avoit jamais cesse de lui appartenir ' : but the ' fiction de 
 Droit ' appears to be merely a ' fiction de Pothier.' 
 
 2 E.g. Dig. 19. I. II. 3, 5, &6. 
 
 ^ Pothier, 357, 361. 
 
LAESIO ENOEMIS. 1 85 
 
 seems to require an answer in the affirmative ^, though it is 
 said that a diiFerent rule is followed in pi'actice. There is 
 no doubt however that the purchaser must surrender acces- 
 sions (such as treasure found upon land ^), or that he can 
 recover the amount of all necessary or beneficial outlay 
 which he has made upon the property from the time of its 
 conveyance to him ^ : and the weight of authority * inclines 
 to the view that any charge created over it by him will 
 bind it in the vendor's hands after rescission of the con- 
 tract ■', though the latter can require him to discharge the 
 encumbrance, and withhold the purchase money, if he has 
 not yet repaid it, until this has been done. 
 
 The efifect of the property being lost or destroyed while 
 in the purchaser's possession, but without any fraud on his 
 part, has been already noticed. The object of the vendor's 
 action is to obtain restitution of the property, and as this 
 is no longer possible the plaintiff cannot succeed ^ : he 
 cannot even require the increase in the purchase money by 
 paying which only the purchaser could under ordinary 
 circumstances retain the property, for this he cannot claim 
 as of right in any case ^. Both parties are sufferers, and 
 
 ^ Cum enim verbum ' restituas ' lege invenitur, etsi non specialiter 
 de fructibus additum est, tamen etiam fructus sunt restituendi : Dig. 
 50. 17. 173. I ; usurae vioem fructuum optinent et merito non debent 
 a fructibus separari : Dig. 22. i. 34. Si I'acquereur prefere rendre la 
 cbose et recevoir le prix, il rend lea fruits du jour de la demande. 
 L'interet du prix qu'il a paye lui est aussi compte du jour de la meme 
 demande, ou du jour du paiement, s'il n'a toucbe aucuns fruits : Code 
 Civil, art. 1682. 
 
 ' Pothier, 359. ^ Pothier, 362-367. 
 
 * On tbe analogy of a sale rescinded by redhibitio. Pothier (371) 
 is of the contrary opinion. 
 
 ^ See Gliiok, 17. p. 109. 
 
 * On the principles laid down in Dig. 45. I. 23 : ib. 33 & 27- 
 
 ' The case is like that of noxal surrender : at indicium solius noxae 
 deditionis nullum est, sed pecuniariam oondemnationem sequitur, et 
 ideo iudicati in decern agitur, his enim solis condemnatur : noxae de- 
 ditio in solutione est, quae e lege tribuitur: Dig 42. i. 6. I. 
 
1 86 LAESIO ENOEMIS. 
 
 ' dum quaeritur de damno, et par utriusque sit, quare non 
 potentior sit, qui teneat, quam qui persequitur ^ ? ' For 
 depreciation of the property bywhich he has profited (e.g. 
 for timber cut and sold), the purchaser must answer, but 
 not apparently for any diminution of value which has not 
 benefited him, even though due to his negligence, at any 
 rate if he was unaware that the contract was voidable by 
 the vendor ^. 
 Cases in There are three cases in which a contract of sale cannot 
 
 which the 
 
 vendor be rescinded on the ground of laesio enormis, and others in 
 rescind : which it is questioned whether such rescission is allowable 
 or not. There can be no rescission — 
 
 (i) If the vendor expressly waives his right to rescind 
 when making the contract ^ ; though many authorities * 
 confine this rule to those cases in which the vendor was 
 not aware of the true value of the property. A waiver is 
 implied from a declaration by the vendor that he is selling 
 cheap out of regard for the purchaser. 
 
 (2) If the purchase is an emptio spei, and it turns out 
 that the purchaser's gain is more than double the price 
 agreed upon: for the 'true value' is to be determined by 
 reference to the date of the contract, and at that time the 
 chance purchased had no clear and ascertainable value": 
 hence in the absence of fraud it is impossible to rebut the 
 presumption that the vendor got what he thought the 
 chance was worth at that time^. 
 
 ' Dig. 45. I. 91. 3. 
 
 '^ Pothier, 360 : Demante, Cours analytique de Code Civil, vii. p. 173. 
 
 ' Si enim ipso edicto praetoris pacta conventa, quae neque contra 
 leges nee dole male inita sunt, omnimodo observanda sunt, quare et in 
 hac causa pacta non valent, cum alia regula est iuris antiqui omnes 
 licentiam habere his quae pro se introducta sunt renuntiare ? Cod. 
 2. 3. 29. I. 
 
 * E. g. Treitschke, Kaufcontract, § 107. 
 
 ^ Dig. 18. I. 8. 1 : 19. I. 12. 
 
 ^ By the German Handelsgesetzbuch, art. 286, rescission for laesio 
 enormis is not permitted in mercantile transactions (Handelsgeschafte). 
 
LAESIO ENOEMIS. 1 87 
 
 (3) Where the vendor, in selling the propei-ty at an 
 undervalue, was merely obeying a direction imposed on 
 him by a deceased person whose heir he is, or by whose 
 decease he has taken a benefits In both cases the true 
 value of the property is immaterial, because the obligation 
 to carry out the deceased's direction is attached to the 
 inheritance or other benefit, unless (in the case of a legatee) 
 its execution entails a burden greater than the benefit 
 itself 2. 
 
 The case in which the possibility of rescission is most other 
 disputed is where the vendor knew at the time of the sale oases. 
 that the true value of what he was selling was more than 
 double the price which he had consented to take. On the 
 one hand it is argued that if a man knowingly sells an 
 article for less than half its real value, the transaction in 
 respect of the residue is to be deemed a gift ^ : qua sale, it 
 is unimpeachable. But the text of the law, it is objected, 
 contains no word implying that ignorance of the true value 
 is a condition precedent of the right of rescission : and it is 
 clear, in view of the object of the law, which was to protect 
 persons who are driven by temporary and overwhelming 
 necessity to sell property at a great undervalue, that it 
 would be unreasonable to refuse rescission on this account, 
 for the very case which the law was designed to meet is 
 one in which the vendor is usually fully aware that he is 
 
 Possibly the reason of this is that dealings on a large scale between 
 merchants are always entered into with a view to profit, and thus par- 
 take of a wagering nature. The purchase of a policy of life insurance 
 is held not to be an emptio spei, because it has an ascertainable sur- 
 render value : cf. Dig. 35. 2. 68. For the French law, which substan- 
 tially agrees with that stated above, see Demante, Cours analytique de 
 Code Civil, vii. p. 160. 
 
 1 Dig. 30. 49. 9: 31. 7°- I- 
 
 ^ Gaius ii. 261 : Inst. ii. 24. I. 
 
 " Donari videtur, quod nullo iure cogente conceditur : Dig. 39. 5. 
 29. pr. : 50. 17. 82. 
 
165 RESCISSION BY THE PUECHASER 
 
 making an overwhelming sacrifice ^. Hence some of those 
 who consider that knowledge is a bar to rescission exclude 
 those cases in which the sale was made under pressing 
 necessity : in all others they hold that a gift is to be 
 presumed, and rescission denied. But that the necessity 
 of the case should make no difference is a reasonable 
 inference from another rescript of the two Emperors from 
 whose legislation the whole law on this subject has been 
 developed ^. 
 
 There are also many writers who hold that a purchase 
 at a public auction cannot be avoided merely because the 
 property has been knocked down at less than half its real 
 value. The argument that an auction is a more certain 
 means of determining the real value of a thing than even 
 the judgment of experts is one that breaks down in par- 
 ticular cases ^, and the supporters of this exception appeal 
 to the known unwillingness of the Roman law to reopen 
 on any ground, except fraud, a purchase made at a public 
 auction*. The opinion, however, that sales at auction 
 are in this respect in no way differently treated from other 
 sales is now generally accepted and acted upon in the 
 Courts '. 
 The pur- Turning to the purchaser's right of rescission, the rule is 
 right of that he is entitled to avoid the contract if the goods sold 
 rescission ^^.^ found defective in quality, or (more correctly) if defects 
 ofundis- are discovered in them subsequently to the sale which 
 
 closed de- . 
 
 fects. could not have been detected on examination at the time. 
 
 ' See Treitschke, Kaufcontract, § io6, p. 382. 
 
 ° Non idcirco minus venditio fundi, quod hunc ad niunus sumptibus 
 necessariis urgentibus [non] vilioris pretii vel urgente debito te dis- 
 traxisse contendis, rata manere debet : Cod 4. 44. 12. 
 
 '■' By Vangerow (§ 611) it is derided as ludicrous (liiolierlicli). 
 
 " Cod. 10. 3. 5 : 4. 46. 3. 
 
 ° See Gliiok, 17. pp. 87-97. In Saxony and Austria a sale at 
 auction made by the order or with the sanction of a Court is excepted : 
 Treitschke, Kaufcontract, p. 389. 
 
rOR UNDISCLOSED DBPBOTS. 1 89 
 
 It is thus a principle of the Koman law that a warranty of 
 quality is implied in every sale : the more exact deter- 
 mination of the limits of this principle is for the moment 
 reserved until we have traced the steps by which it was 
 established. As Pothier ^ observes, the vendor is bound by 
 the nature of the contract of sale to warrant the purchaser 
 that the goods sold are free from certain defects calculated 
 to render them entirely or nearly useless, or sometimes 
 even injurious, for the purposes for which they are or- 
 dinarily employed. This obligation is a consequence of 
 that contracted by the vendor, ' to cause the purchaser to 
 have the goods ' : for this latter obligation, according to 
 the intention of the parties, is not fulfilled unless he has 
 them for effective use. 
 
 At the risk of some repetition of what has been said in Historical 
 a previous chapter ^ it will be convenient, and perhaps even tjje ven- 
 necessary, to examine the law relating to the vendor's ^?^ ^ ^J.^' 
 liability for non-disclosure from the historical point ofnon-dis- 
 
 closurG ' 
 
 view. The Civil, as distinct from the edictal. Law held him 
 liable for defective quality only in two cases : firstly, where 
 his conduct had been fraudulent; and secondly, where he 
 either expressly represented (dicta) that the goods possessed 
 certain desired qualities or were free from certain specific 
 defects, or gave a warranty (promissa) to that efiect. 
 
 Of fraud it is unnecessary to say moi-e, except to remind the old 
 the reader that if the vendor knew, at the time of the 
 contract, of defects in the goods which would impair their 
 utility for the purpose for which they were intended, and 
 deliberately abstained from giving such information to the 
 purchaser, his conduct was fraudulent*; and (as in cases 
 of direct and wilful fraud) the purchaser could rescind the 
 
 1 202. '^ Pp- 58-62 Bupr. 
 
 ' Dolum malum a ae abesse praestare venditor debet, qui non tantum 
 in 60 est qui fallendi causa obscure loquitur, sed etiam qui insidiosq 
 obscure dissimulat : Dig. 18. I. 43. 2. 
 
I go EESCISSION BY THE PUECHASEE 
 
 contract by actio de dolo, and probably also by an actio ex 
 empto ^, by which he could also recover damages for such 
 loss as he had sustained, whether he desii-ed to maintain 
 the contract or to avoid it ^- 
 
 A warranty or a representation that the article sold 
 possesses certain qualities had, by the Civil Law, the same 
 consequences ^, and the rule was the same if it were not of 
 the quality or material which the purchaser might, under 
 the circumstances, reasonably expect, for here the wai-ranty 
 was implied *. Between dicta and promissa — between, that 
 is to say, representations inducing the purchaser to buy, 
 and express warranties — no distinction appears to have 
 been drawn ° : but mere general commendation of his goods 
 
 ^ Whether he could rescind on this ground by actio ex empto is dis- 
 puted, but appareutly without good reason. Vangerow {§ 609, note 
 2, III) asserts the negative, but elsewhere (§ 605, note i, II), apropos to 
 Dig. i^. I. II. 5, he says that if the purchaser would never have 
 made the contract, had he been aware of the facts known to the ven- 
 dor, he can avoid it by this action, and in the passage previously 
 referred to he admits that an avoidance of the contract might possibly 
 be granted on an actio ex empto claiming ' id quod actoris interest ' if 
 the whole transaction is quite useless to the purchaser on account of 
 the vendor's non-disclosure, so that his ' interest ' can be fully secured 
 only by a judicial rescission. See Dig. 19. i. 11. 3, and compare 
 Windscheid, Lehrbuch, § 393, note i. 
 
 ^ Dig. 19. 1. 13. pr. & I : 18. i. 35. 8. 
 
 ^ Dig. 19. I. 6. 4: ib. 13. 3 & 4 : 18. 6. 6. In English law ' where 
 there is a contract for the sale of goods by description, there is an im- 
 plied condition that the goods shall correspond with the description' 
 (Josling v. liingsford, 32. L. J. C. P. 94 : Modi/ v. Gregson, L. R. 4 Ex. p. 
 56), Chalmers, Sale of Goods, § 16 : Benjamin, pp. 597-602. 
 
 * Dig. 19. I. 21. 2. 
 
 ° See Dig. 19. l. 13. 3 & 4, ib. 6. 4 : In English law 'antecedent 
 representations made by the vendor as an iiidncemenf to the buj-er, but 
 not forming part of the contract when concluded, are not warranties ' 
 [and consequently, unless fraudulent, give no right of action, either 
 for rescission of the contract, or for damages] ; Benjamin, p. 607. Upon 
 this distinction between statements which are within and statements 
 which are outside the contract there appears to be no definite 
 authority in the Civil Law. But the English Courts seem to be tending 
 
FOR UNDISCLOSED DErBOTS. I9I 
 
 imposed no liability on a vendor', nor did even a more 
 specific description if its truth or falsehood could be ascer- 
 tained at once by the purchaser^. The purchaser has the 
 same rights if the article is either warranted or represented 
 to be free from certain defects, which are subsequently 
 found to be present^. 
 
 As in the cases of fraud and non-disclosure of defects 
 known to the vendor at the date of the contract, the actio 
 ex empto lay under these circumstances for damages, and 
 even for rescission of the whole agreement if the purchaser 
 could satisfy the court that he would not have entered into 
 it at all had he known that the representation or warranty 
 would turn out to be unfounded*. But apart from these 
 cases which have been considered, the Civil Law gave the 
 purchaser no remedy for defects of quality in the goods 
 sold, unless he took care to guard himself against the 
 contingency : its maxim, in effect, was ' caveat emptor ' ^. 
 
 in the direction of granting rescission on tlie ground of any misrepre- 
 sentation, fraudulent or not, wliicli is a material inducement to a party 
 to enter into a contract : see tlie chapter on Misrepresentation in Anson 
 on Contract, especially in relation to the cases of Bedgrave v. Hurd 
 and Newbigging v. Adam, at p. 150 (5th ed.). 
 
 ' Ea autem sola dicta sive promissa admittenda sunt, quaecumque 
 sic dicuntur, ut praestentur, non ut jactentur : Dig 21. I. 19. 3 : cf. ib. 
 pr. — 2 : Dig. 4. 3. 37. So in English law the maxim is ' simplex com- 
 mendatio non obligat' : Benjamin, pp. 404, 610 sq. 
 
 ^ Ea quae commendandi causa in venditionihus dicuntur, si palam 
 appareant, venditorem non obligant, veluti si dicat servum speciosum, 
 domum bene aedificatam : at si dixerit hominem litteratum, vel arti- 
 ficem, praestare debet ; nam hoc ipso pluris vendit : Dig. 18. i. 43. 
 pr. : 4. 3. 37. 
 
 ' Dig, 19. I. 6. 4 : ib. 13. 3 : 21. 2. 75 : 18. I. 59 : ib. 66. 
 
 * Dig. 19. I. II. 3. 
 
 ^ Dig. 19. I. 13. pr. & I might seem to contradict this, and on the 
 strength of it Neustetel (Romisch-rechtliche Untersuchungen, ix. pp. 1 60 
 sqq) argues that a reduction of the purchase money could always be 
 obtained by actio ex empto. But the fact is, as will be seen below, 
 that by the construction of the lawyers of the empire, the redress ob- 
 tainable through the edictal remedies came also to be obtainable 
 through the Civil Law actions on the contract : ea enim, quae sunt 
 
J 92 BESCISSION BY THE PUEOHASER 
 
 theprae- The mode in which purchasers protected themselves 
 
 exacting a against possible loss through defects for which the Civil 
 
 covenant j^^^ f gg^jg would neither rescind the contract nor com- 
 
 quality : pensate them in damages was stipulation, ihis appears 
 
 to have been very general in purchases of slaves and certain 
 
 animals, which so frequently suffer from forms of disease or 
 
 unsoundness which it is impossible to detect till some time 
 
 has elapsed, and numerous formulae of such stipulations 
 
 are formed in Varro ^. Such a precautionary system, how^ 
 
 ever, was ponderous and inconvenient in relation to the 
 
 numberless small dealings which must have taken place 
 
 every day in the open market places of Rome. Even as 
 
 the ^dili- early as Plautus the supervision of these belonged to the 
 
 cian ic . Qypyig j3Ediles, who in the interest of the purchasing public 
 
 could exclude and perhaps order the destruction of bad 
 
 wares offered for sale therein^: a very beneficent and 
 
 necessary jurisdiction, when we remember how compact 
 
 and united are the interests of market tradespeople, and 
 
 how largely they appear even among the Eomans to have 
 
 subordinated commercial honesty to the desire for profit ^- 
 
 But even this protection was of little practical utility in 
 
 sales of slaves or animals, defects in which of the kinds 
 
 already referred to were no more immediately discoverable 
 
 by a magistrate than by a purchaser: and at a later date 
 
 the iEdiles regulated these by Edict, under which further 
 
 aid was given to purchasers of such wares in open market. 
 
 The JSdilician Edict at fii-st almost certainly related to 
 
 moris et consuetudinis, in bonae fidei iudiciis debent venire : Die-. 21. 
 I. 31. 20 ; cf. Vangerow, § 609, note 2, II. 
 
 ' Slaves, de re rust. II. 10. 5 : sheep, ib. 2. 5 : goats, ib. 3 : pio-s. ib. 
 I : oxen, ib. 5 : asses, ib. 6 ; dogs, ib. 9. 
 2 ... quamvis fastidiosus 
 
 AediUs est, si quae improbae sunt merces, iactat omnis. 
 Budens II. 379 : cf. Miles Glor. III. 727 : Captivi IV. 823. 
 
 » Nam id genus hominum ad lucrum potius . . . vel turpiter facien- 
 dum pronius est : Paulus in Dig. 21. I. 44. i. 
 
rOB UNDISCLOSED DEFECTS. 1 93 
 
 such sales of slaves, and in this form it was known to 
 Cicero ^, though in his day it was perhaps only of recent 
 introduction ^- Its import is clear : the vendor, whether he 
 is aware of them or not, is bound without demand to notify 
 the purchaser of certain flaws (if present) in any slave he 
 sells in open market. The form of the Edict given in the 
 Digest^ suggests that from the outset it promised the 
 purchaser an action for rescission in the event of such 
 defects being subsequently discovered within a reasonable 
 time : but there can be little or no doubt that this was a 
 later innovation, and that at first the ^diles went no 
 further than to compel the vendor, at any time not ex- 
 ceeding two months from the date of the contract, to enter 
 into a stipulation at the purchaser's demand that the slave's 
 utility was marred by none of the defects in question*, 
 
 ^ De Off. in. 17. § 71. 
 
 ^ It is preserved in Dig. 21. 1. 1. 1 : qui mancipia vendunt, certiores 
 faciant emptores quid morbi yitiique cuique sit, quis fugitivus errove 
 sit noxave solutus non sit : eademque omnia, cum ea mancipia veni- 
 bunt, palam recte pronuntianto. From a comparison -with. Aulus 
 Gellius, Noot. Att. iv. 2. i, it may be conjectured that the second of 
 these two sentences was the important one. 
 
 ^ Emptor! omnibusque ad quos ea res pertinet indicium dabimus, ut 
 id mancipium redhibeatur : Dig. loc. cit. 
 
 * Si venditor de his quae edicto continentur non caveat, poUicentur 
 adversus eum ad redhibendum indicium intra duos menses : Dig. 21. i. 28: 
 cf. Dig. 21. 2. 31 & 32. There is abundant evidence in the Corpus 
 luris that even under the law of Justinian the purchaser of a slave 
 might require from the vendor a stipulatio duplae (the duplum is 
 denied by Windsoheid, Lehrbuch, § 394, note 17) suable on in the 
 event of the discovery of such defects as were specified in the Edict 
 (quia adsidua est duplae stipulatio, idcirco placuit etiam ex empto agi 
 posse, si duplam venditor mancipii non caveat : Dig. 21. i. 31. 20 : cf. 
 Cod. 4. 49. 14 : Dig. 21. 2. 31 & 32 : ib. 37. 1 : and Theophilus, paraphr. 
 ad Inst. iii. 1 82 : 8f I yap tov wpdrqv eneparairdai ra ayopaarrj, its ft 
 iraSos (vpf6rj Kpvwrbv iv ra TriTr pa<rKapevif olKerrj, irapi^ei t6 SmXacriov) : 
 and from Dig. 19. I. 11. 4 it is clear that a similar stipulation could 
 be exacted on the sale of iumenta, though there is no evidence of its 
 extension to sales of wares of other kinds. Beohmann (Kauf, I. pp. 
 402, 406, note 2) appears to think that these passages were admitted 
 
 
 
194 EESCISSION BY THE PUECHASER 
 
 and in case of refusal to grant the purchaser an action for 
 the recovery of the purchase money on returning the slave. 
 Later, but probably before the extension of the Edict to 
 beasts of burden (iumenta) it was further proclaimed that 
 the purchaser might rescind the sale by actio redhibitoria 
 on discovery of such defects -within six months from the 
 date of the contract. The later clause relating to sales of 
 iumenta in market lays a heavier burden on the vendor : 
 he is bound to disclose alP and not merely certain specified 
 defects, under penalty of having the contract rescinded 
 (redhibitio) within six months, and the purchaser is given 
 the further right of suing at any time within twelve months 
 for a return of his purchase money proportionate to the 
 defects discovered (actio quanti minoris). By subsequent 
 Edictal changes this new remedy was granted to purchasers 
 of slaves as well as of cattle or horses, and both actions 
 were finally made applicable by the ^diles to sales of 
 Extension bcasts of all kinds included in the term ' pecus ' ^. By 
 rules to all juristic construction under the Empire this process of ex- 
 ^uristic" tension was carried even further, for even as early as Labeo 
 construe- the aedilician remedies were held to lie on sales of all 
 things whatsoever ^, moveable or immoveable ■*, so that an 
 implied warranty of freedom from defects impairing reason- 
 able use had come to be inherent in every sale of any 
 
 into the Corpus luris by oversiglit, and that the system of compulsory 
 stipulation was obsolete : ' passt die ganze Stelle iiberhaupt nicht in 
 das justimanisGhe System, das den Stipulationszwang ausgemerzt 
 hat.' 
 
 ^ Qui iumenta vendunt, palam recte dicunto quid in quoque eorum 
 morbi vitiique sit : Dig. 21. i. 38. pr. 
 
 2 Idcirco elogium huic edicto subiectum est, cuius verba haec sunt : 
 quae de iumentorum sanitate diximus, de caetero quoque pecore omni 
 venditores faoiunto: Dig. 21. i. 38. 5. 
 
 ^ Labeo scribit edictum aedilium curulium de venditionibus rerum 
 esse, tam earmn, quae soli sint, quam earum, quae mobUes aut se 
 moventes: Dig. 21. i. i. pr. : cf. ib. 63. 
 
 * E.g. fundus pestilens (Dig. 21. i. 49) or pestibilia (Cod. 4. 58. 4), 
 vas non integrum (Dig. 19. i. 6. 4), tignum vitiosum (Dig. ib. 13. pr.). 
 
FOE UNDISCLOSED DEFECTS. 1 95 
 
 magnitude, wherever entered into, on the general ground 
 that a statutory provision is to be extended to all cases 
 requiring like remedy^- The rule was even engrafted 
 upon two other transactions closely analogous to sale, viz. 
 exchange ^ and datio in solutum ^. 
 
 Turning now to a more precise and systematic statement What 
 of the law, the first subject for examination is the definition render 
 of what may for convenience be termed redhibitory defects*. traetHabie 
 Speaking generally, they are those defects which either *« rescis- 
 destroy or impair the usefulness of the thing sold for the 
 purpose for which things of that kind are ordinarily 
 intended to be used^. In relation to slaves and animals, 
 which are almost exclusively used in illustration, Labeo ^ 
 uses the words morbus and vitium, but Ulpian points out, 
 in commenting on his definition of their meaning, that the 
 terms are practically synonymous: ego puto aediles tol- 
 lendae dubitationis gratia bis Kara rod avrov idem dixisse, 
 
 ^ Nam, ut ait Pedius, quotiens lege aliquid, unum vel alteram, in- 
 troductum est, bona occasio est caetera, quae tendunt ad eandem 
 utilitatem, vel interpretatione vel certe iurisdictione suppleri : Dig. 
 
 I- 3- 13- 
 
 ^ Sed si quis permutaverit, dicendum est, utrumque emptoris et 
 venditoris loco haberi, et utrumque posse ex boc edicto experiri : Dig. 
 21. I. 19. 5. 
 
 2 Cod. 8. 44. 4. 
 
 ^ Pothier, 205, 206. 
 
 ^ Proinde si quid tale fuerit vitii sive morbi, quod usum ministe- 
 riumque bominis impediat, iddabit redbibitioni locum : Dig. 21. 1. 1. 8 : 
 cf. ib. 10. 2 : ib. 12. i : ib. 38. 9 : 19. l. 6. 4. Le vendeur est tenu de 
 la garantie a raison des defauts cacbes de la chose vendue qui la 
 rendent impropre a I'usage auquel on la destine, ou qui diminuent 
 tellement cet usage, que I'acbeteur ne I'aurait pas acquise, ou n'en 
 aurait donne qu'un moindre prix, s'il les avait connus : Code Civil, 
 Art. 1 64 1. For illustrations see Pothier, 214. 
 
 " Sed sciendum est morbum apud Sabinum sic definitum esse babi- 
 tum cuiusque corporis contra naturam, qui usum eius ad id facit de- 
 teriorem, cuius causa natura nobis eius corporis sanitatem dedit . . . 
 vitiumque a morbo multum differre, ut puta si quis balbus sit, nam 
 bunc vitiosum magis esse quam morbosum : Dig. 21. I. I. 7. 
 
 2 
 
196 RESCISSION BY THE PUECHASBE 
 
 ne qua dubitatio superesset. Temporary or transient ail- 
 ments are ground for rescission no less than those which 
 are permanent ^, provided they are not so trivial that one 
 would usually pay no attention to them 2. In construing 
 Bistine- the Edict, however, it was held that in slaves mental 
 between disease or deficiency, and moral faults of temper or char- 
 ^^^^^^ acter, unless their absence was expressly guaranteed, were 
 in general no ground for the application of the aedilician 
 remedies ^. Still, there were exceptions to this rule : for if 
 a slave were 'fugitivus'* or an 'erro'^ the fault was 
 deemed moral, not corporal ^, and yet these are expressly 
 mentioned as redhibitory defects in the Edict: and the 
 right of rescission similarly existed in the case of slaves 
 who had committed a capital offence'', or attempted suicide ^, 
 or procured themselves to be used for fighting with wild 
 beasts, and where the mental affliction was a direct conse- 
 quence of bodily disease^. A civil action ex empto for 
 damages would lie for mental and moral no less than for 
 physical defects if the conditions previously laid down 
 were satisfied^". 
 
 ^ Pomponius recte ait, non tantum ad perpetuos morbos, verum ad 
 temporarios quoque hoc edictum pertinere : Dig. 21. i. 6. pr. 
 
 ^ Dummodo meminerimus non utique quodlibet quam levissimum 
 efficere ut morbosus vitiosusve habeatur. Proinde levis febricula aut 
 vetus quartana, quae tamen iam spemi potest . . . contemni enim 
 haec potuerunt : Dig. 21. i. i. 8. 
 
 ' Dig. 21. I. I. 9-1 1 : ib. 4. 2-4. 
 
 * For a fuU description of the meaning of this tei-m, see Dig. 21. I. 
 17 : ib. 43. 1-3. 
 
 ^ Proprie erronem sic definimus : qui non quidem fugit, sed fre- 
 quenter sine causa vagatur et temporibus in res nugatorias consumptis 
 serins domum redit : Dig. 21. 1. 17. 14. 
 
 " Dig. 21. I. 43. ' Dig. 21. I. 23. 2. * Dig. 21. I. 23. 3. 
 
 " Sed si vitium corporis usque ad animum penetrat, forte si propter 
 febrem loquantur aliena, vel qui per \icos more insanorum deridenda 
 loquantur, in quos id animi vitium ex corporis vitio accidit, redhi- 
 beri posse : Dig. 21. i. 4. i : cf ib. i. 9. 
 
 ^° Dig. 21. I. I. 9 & 10 : ib. 4. pr. & 4. 
 
FOE UNDISCLOSED DEFECTS. 1 97 
 
 In respect of animals, on the other hand, this distinction and 
 between corporal and moral or mental faults was not *"'™'''^- 
 drawn. It is not considered a corporal defect for an ox 
 to be given to tossing, a horse to jibbing, shying, or 
 kicking, or for any such beast to be restive or nervous, 
 and yet these defects are redhibitory ^ But Pomponius 
 decides that though a mule which will stand no collar but 
 that of the vendor is not ' sana ' ^, the purchaser is not 
 entitled to return one which will stand being harnessed on 
 only one side or the other of the carriage, because that is a 
 common failing in such animals ^. 
 
 It is of course essential that the defect, whatever it be. The defect 
 should have been in existence at the time when the contract at the date 
 was made * : those which arise afterwards are misfortunes °^ *?® . 
 
 contract, 
 
 which the purchaser must be content to bear : and from and be un- 
 this it follows that a fault which has existed, but which the pur- 
 has been permanently cured or removed when the contract 
 is made, is no ground for rescission^. The defect again 
 must be unknown to the purchaser, for otherwise he cannot 
 say that he has been deceived *, and he is presumed to be 
 aware of it from circumstances from which it could not 
 fail to be inferred by a reasonable man '', and there is some 
 authority for saying that in such a case the vendor will 
 not be bound even by an express warranty ^. Further, the 
 
 ^ Dig. 21. I. 43. 
 
 2 Dig. 21. I. 38. 9. ' Dig. 21. 1. 38. 8. 
 
 * Dig. 21. I. 54 : Cod. 4. 58. 3. pr. : Pothier, 211. 
 ° Dig. 21. I. 16: ib. 17. 17. 
 
 ' Cicero de Off. iii. c. 16: Dig. 21. i. 48. 4. 
 
 '' Ei qui servum vinctum vendiderit, aedilioium edictum remitti 
 aequum est : multo enim amplius est, id faoere, quam pronuntiare, in 
 vinculis faisse : Dig. 21. I. 48. 3. 
 
 * Quaedam enim poUicitationes venditorem non obligant, si ita in 
 promptu res sit, ut earn emptor non ignoraverit, veluti siquis hominem 
 luminibus effossis emat, et de sanitate stipuletur : nam de cetera parte 
 corporis potius stipulatus videtur, quam de eo, in quo se ipse deeipie- 
 bat : Dig. 18. I. 43. I. On the other hand it is said (in Dig. 44. 4- 4- 
 
1 98 EBSCISSION BY THE PUECHASEE 
 
 defect must be invisible, or such that were it not pointed 
 
 out to the purchaser, he could not have perceived it, 
 
 although it might have been detected by an expert: if it 
 
 is so obvious that he could not have failed to observe it 
 
 had he kept his eyes open (as e. g. where a slave is blind, 
 
 or has a dangerous wound on a conspicuous part of his 
 
 body) he cannot avail himself of the aedilician remedies ^. 
 
 If he is himself an expert, and so could easily detect defects 
 
 which a non-expert could not, it would seem that he cannot 
 
 proceed agaiust the vendor for non-disclosure: but upon 
 
 this point there seems to be no express textual authority ^. 
 
 Pureliase Where the purchase is made by an agent who is in the 
 
 ^\4Hf^"*^ purchaser's power, and who was aware of or could easily 
 
 know- have discovered the defects at the time of the contract, the 
 
 ledge. 
 
 superior is affected by such knowledge or carelessness, and 
 has no remedy : if the agent in such case was unaware of 
 them through no fault of his own, the superior can rescind 
 unless they were known to him personally^. If, on the 
 other hand, the agent is not in the purchaser's power, his 
 knowledge or negligence is again the knowledge or negli- 
 gence of his principal ■* ; while if he is ignorant of the 
 defects, which however are known to his principal, the 
 
 5) si quis fugitivum esse sciens emerit servum, et si stipulatus fiierit 
 fugitivum non esse, deinde agat ex stipulatu, non esse eum exceptione 
 repellendum, quoniam hoc convenit . . . sed si non convenisset, excep- 
 tione repelletur. Pothier (209) thinks the latter passage contains the 
 rule, and that the former is true only if the vendor was ignorant of 
 the defect, so that the purchaser's exaction of the wariunty is fraudu- 
 lent. But this interpretation of Dig. 18. I. 43. I is impossible. 
 
 ' Ignorantia emptori prodest quae non in supinum hominem cadit : 
 Dig. 18. I. 15. I : cf. 21. I. I. 6 : ib. 14. 10. Le vendeur nest pas tenu 
 des vices apparens et dont I'acheteur a pu se convaincre lui-meme : 
 Code Civil, Art. 1642 : of. Pothier, 207. For the application of these 
 principles to mercantile transactions conducted on the modern scale, 
 see Treitschke, Kaufcontract, § 94. 
 
 ''■ See Treitschke, Kaufconti-act, p. 340. 
 
 ' Dig. 21. I. 51. I : cf. 18. I. 13 & 13. 
 
 * Dig. 21. I. 51. I : cf. Dig. 14. 4. 5. pr. 
 
rOR UNDISCLOSED DEFECTS. 199 
 
 latter cannot rescind the contract, while the agent can, but 
 only provided he is acting in his own interest and on his 
 own behalf, through being unable to recover from his 
 principal ^. 
 
 When a thing is sold along with certain accessories, Defect in 
 discovery of a redhibitory defect in one of the accessories, gions- 
 entitles the purchaser to rescind the sale of such accessory, 
 provided it is sold expressly as a separate thing — tanquam 
 res singula— not as part of an ideal whole. Thus if an 
 estate is sold with all the slaves upon it, the rules of the 
 Edict apply to the latter ^ : but they do not apply to one 
 slave who forms part of another slave's peculium, when 
 the latter is sold 'with his peculium' 3. If the principal 
 thing is returned on account of redhibitory defects, the 
 purchaser is bound to take back accessories also, even 
 though they are perfectly sound * On the sale of a number in one of 
 of things together in one lot and for one price, the answer things 
 to the question whether a defect in one of them entitled we'uw ^ 
 the purchaser to rescind the contract in respect of all 
 depends partly on whether the things are related to each 
 other as principal and accessory. It will be clear from 
 what has been already said that if this is so, and the defect 
 is in the principal thing, the whole contract can be re- 
 scinded, while if the defect is in one of the accessories 
 only, it is only in respect of that accessory that rescission 
 is allowable ^. But if the things are not so related, then it 
 depends whether they were bought as a whole, so that the 
 purchaser would not have bought one without the other or 
 
 ' Dig. 21. 1. SI. I. ^ Dig. 21. 1. 32 : 19. I. 27. 
 
 ' Dig. 21. I. 33. pr. : Pothier, 304. The tra-ppings (ornamenta) in 
 whicli a horse, mule, or other beast was sold were declared accessories 
 of the iumentum by the Edict (Dig. 21. i. 38. pr. & 11), which pro- 
 vided that unless they were delivered with the animal, the purchaser 
 might within sixty days either sue for them, or rescind the whole 
 transaction by actio redhibitoria. 
 
 ' Dig. 21. I. 33. I, ^ Pothier, 226. 
 
200 RESCISSION BY THE PUECHASEE. 
 
 rest, for in this case he can rescind the whole contract for 
 a redhibitory defect in one only : otherwise he is entitled 
 to return only the defective article^. That a separate 
 price is agreed upon for each of two or more things pur- 
 chased simultaneously raises a strong presumption that 
 they are bought independently of one another, though this 
 may be rebutted by considerations of their utility, nature, 
 or connexion with one another; in the case of. rebuttal, aU 
 must be returned or none^. Similar principles govern the 
 in part of Sale of an universitas. If it is an ideal whole, such as an 
 gitas. ' inheritance or a peculium, whose name gives no clue to the 
 separate articles which it comprises, the vendor (in the 
 absence of express warranty) incurs no liability if it is 
 sound or serviceable as a whole, because no ' certum cor- 
 pus ' ■* has been bought. But if the universitas is an 
 aggregate of single things, such as a company of slave 
 actors or singers or a menagerie, the rescission of the 
 whole contract may be obtained on account of defects 
 discovered in one individual, but only if the purchaser 
 would not have bought any unless he could buy all *. 
 Vendor's Of these redhibitory defects, if present, it is the duty of 
 disclose the Vendor to advise the purchaser, under penalty of having 
 defects of ^j^g contract rescinded against him if they should be subse- 
 kinds. quently discovered. It is entirely immaterial that he fails 
 to point them out simply because he is ignorant of their 
 existence ^, though he is in worse case if he knew of them, 
 
 ' Dig. 21. 1. 34 : ib. 38. 14 : ib. 64. 
 
 ^ Interdum etsi in singula capita pretium constitutum sit, tamen 
 una emptio est, ut propter unius vitium omnes redbiberi possint vel 
 debeant, scilicet cum manifestum erit non nisi omnes quem empturum 
 vel venditurum fuisse, ut plerumque circa comoedos vel quadrigas vel 
 mulas pares accidere solet, ut neutri non nisi omnes habere expediat : 
 Dig. 21. 1.34. I. 
 
 ^ Dig. 21. I. 33. pr. 
 
 * Dig. 21. I. 34 & 35 : ib. 38. 12 & 14 : ib. 39 & 40 : ib. 64. i. 
 
 ^ Dummodo sciamus venditoVem, etiamsi ignoravit ea quae aediles 
 praestari iubent, tamen teneri debere. nee est hoc iniquum : potuit 
 
FOR UNDISCLOSED DEFECTS. 20I 
 
 and dishonestly withheld his knowledge from the pur- 
 chaser, for then he is liable, by action ex empto, to make 
 good to the latter all loss whatsoever which he may have 
 sustained through making the contract ^. Even an express 
 agreement that he shall not be liable for defects will not 
 protect him from liability in respect of those of which he 
 was aware at the time of the making of the contract ^ : for 
 those which were at that time unknown to him he can 
 protect himself in this manner ^- 
 
 It is necessary now to examine in detail the remedies or The pur- 
 possible courses which under the Edict were open to a pur- remedies : 
 chaser who after the conclusion of a contract of sale dis- 
 covered some redhibitory defect in its subject matter. 
 
 K he has not yet paid the purchase money, and is sued (i) by ex- 
 for it by the vendor, he can meet the latter's action by an 
 exceptio or counteractive plea, for the purpose either of 
 cancelling the contract (corresponding to the actio redhibi- 
 toria) or of procuring a reduction in the amount of the 
 purchase money proportionate to the defects discovered 
 (corresponding to the actio quanti minoris)*. If the pur- (2) by actio 
 chase money has been paid, he can bring an actio redhibi- toria. 
 toria^ for the rescission of the contract and to recover it back, 
 while if the vendor has taken the goods back voluntarily ^, 
 but refuses to repay the purchase money, the latter can be 
 
 enim ea nota habere venditor : neque enim interest emptoris, cur 
 fallatur, ignorantia venditoris an calliditate : Dig. 2i. I. I. 2. 
 
 ^ Dig. 19. I. 13. pr. The same distinction is drawn in the Code 
 Civil, Art. 1645. 
 
 " Dig. 19. I. 6. 9. 
 
 ' Dig. 21. I. 19. 4 : Pothier, 210. II est tenu des vices caches, 
 quand meme il ne les aurait pas connus, a moins que, dans ce cas, il 
 n'ait stipule qu'il ne sera oblige a aucune garantie : Code Civil, Art. 1 643. 
 
 * Dig. 21. I. 59. pr. & I. 
 
 ^ So named from the return of the goods : redhibere est facere, ut 
 rursus habeat venditor quod habuerit, et quia reddendo id fiebat, 
 idcirco redhibitio est appellata quasi redditio : Dig. 21. i. 21 pr. 
 
 * Dig. 21. I. 31. 18. 
 
202 EESCISSION BY THE PUECHASEE 
 
 reclaimed by actio in factura, whether defects have been dis- 
 covered or not, and even though the short period of limita- 
 tion fixed for the actio redhibitoria may have expired ^. 
 Effects of Speaking generally, the effect of the actio redhibitoria is 
 action • that, on proof by the vendor of defective quality, the parties 
 will be restored in statum quo ante, with the consequence 
 that neither will be allowed either to derive advantage or 
 to suffer detriment from the contract ^. The acts which are 
 what must incumbent on the purchaser may first be examined. He is 
 the pur- bound (i) to restore to the vendor the thing which he 
 chaser, bought, along with its accessions, including those which 
 have accrued since the making of the contract ^. (2) To in- 
 demnify the vendor for the value of all fruits or profits which 
 he has derived from the property, or which he might have 
 derived from it but for his own negligence *, even though 
 the vendor himself could not have appropriated them had 
 he never sold it^: but he is under no obligation to suiTcnder 
 any sum which he may have recovered as damages in an 
 actio injuriarum on account of an assault or libel aimed at 
 himself through the slave '^- (3) To give up the property to 
 the vendor uninjured, and in as good a condition as when 
 received by himself. Hence he is responsible for any 
 damage or deterioration which it has suffered since delivery 
 at the hands or through the fault of himself or those for 
 whom he is bound to answer (including a free agent '), and 
 which would not have befallen it had the sale not taken 
 
 ^ Dig-. 21. 1. 31. 17. 
 
 ^ Facta redhibitione, omnia in integrum restituuntur, perinde ac si 
 neque emptio neque venditio intercessit : Dig. 21. i. 60 : judicium red- 
 hibitoriae actionis utrumque, id est venditorem et emptorem, quodam- 
 modo in integrum restituere debere : Dig. ib. 23. 7 : ib. 21. pr. 
 
 ' Dig 21. I. I. I : ib. 23. i : ib. 31. 19. Illustrations : child born of 
 ancilla, Dig. ib. 31. 2 : usufruct which has accrued to the nuda pro- 
 prietas, ib. 31. 3 : peculium acquired by slave otherwise than ex re 
 emptoris, ib. 31. 4. 
 
 * Dig 21. I. I. I : ib. 23. 9 : Pothier, 219. ' Dig. 21. I. 23. 9. 
 
 '^ Dig. 21. I. 43. 5. ' Dig. 21. I. 25. 3. 
 
FOR UNDISCLOSED DEFECTS. 203 
 
 place ^ ; and here moral deterioration is put on the same 
 footing as corporal injury^. However slight might be the 
 negligence of the purchaser or his subordinates, he must 
 answer for it, if it resulted in the property being diminished 
 in value ^ : he is bound to take the same care of property 
 which he may become entitled to return as the vendor is 
 bound to show in the custody of it before delivery *- For 
 mere accidental injury of course the purchaser will not be 
 held responsible, nor for any liability which may attach to 
 the owner of the property by reason of circumstances 
 beyond his control, so that (for instance) if a slave commits 
 a theft, the penalty recoverable from the vendor after red- 
 hibition cannot be demanded by him from the purchaser, 
 unless the theft was committed by his instructions or de- 
 fault, or by those of his alienee ^- What has been said of 
 the purchaser and his subordinates is equally true of his 
 heir and of persons for whom such heir is answerable ^. 
 Finally, if the purchaser has created any charge or en- 
 cumbrance, such as a mortgage or servitude, over the pro- 
 perty after conveyance to him, such charge or encumbrance 
 is not avoided by its return to the vendor, and accordingly 
 the latter is entitled on redhibition either to have it released 
 at the purchaser's cost, or, if the encumbrancer (being 
 entitled so to do) will not consent to its extinction, to 
 receive proportionate compensation'^: and he can require 
 the purchaser to give security for compensation in respect 
 of such charges as may be unknown *. 
 
 On the part of the vendor, it is necessary and by the 
 
 vendor. 
 
 ^ Dig. 21. I. 23. pr : ib. 25. pr.— 7. 
 
 ^ Dig. 21. I. 25. 6. The defendant's form of pleading in respect of 
 damages done before joinder of issue was different from that in respect 
 of those occasioned pendente lite: the former must be expressly men- 
 tioned in iure, and the claim for compensation inserted in the formula ; 
 the latter need not : Dig. 21. i. 25. 8. 
 
 ^ Dig. 21. I. 31. 11-15. * P- 106 sq. supr. 
 
 = Dig. 21. I. 46. ' Dig- 21. I. 31- 9- 
 
 ' Dig. 21. I. 43. 8. ' Dig. 21. 1. 21. I. 
 
204 EESCISSION BY THE PUECHASBE 
 
 (i) That he shall return the purchase money, along with 
 interest, and with any other sum which the purchaser may 
 have paid to him in pursuance of the contract, or which he 
 might otherwise have been compelled to pay ^ : and where 
 two or more things are sold together for a single price, and 
 the sale is rescinded by the purchaser in respect of one of 
 them only, the price of that one has to be apportioned by 
 the court ^. The vendor is responsible 
 
 (2) for any necessary costs which the purchaser may have 
 incurred in connection with the property, but not for the 
 expenses of maintenance, such as the food and lodging of a 
 slave or a horse, at any rate if the purchaser has been able 
 to make use of it, for such use will be deemed to be set off 
 against them ^. These costs however cannot be recovered by 
 action : the purchaser can assert his right to them only by 
 withholding the property until they are paid *, which he 
 may do irrespective of his right to recover the purchase 
 money ^ ; and the vendor may conceivably find it to his 
 
 ' Debet antem recipere pecuniam, quam dedit pro eo homine, vel si 
 quid accessionis nomine. Dari autem non solum id accipiemus, quod 
 numeratur venditori, ut puta pretium, at usuras eius, sed et si quid 
 emptionis causa erogatum est : hoc autem ita demum deducitur, si ex 
 voluntate venditoris datur : ceterum si quod sua sponte datum esse 
 proponatur, non imputabitur : neque enim debet quod quis suo arbitrio 
 dedit a venditore exigere. Quid ergo si forte vectigalis nomine datum 
 est, quod emptorem forte sequeretur? dicemus hoc quoque restituen- 
 dum : indemnis enim emptor debet discedere : Dig. 21. i. 27: cf. ib. 
 29.2. So too Pothiersays (217) : 'I'acheteuradroit ausside demander 
 que le vendeur soit condamne a le rembourser de tous les frais du 
 marcbe, et de tous ceux qu'il a ete oblige de faire par rapport a la 
 chose vendue, tels que sont les frais de voiture, de barrage, de douane, 
 &c. : non ceux qu'il auroit pu se dispenser de faire. 
 
 ' Dig. 21. I. 36 : ib. 64. Illustrations in GlQck, 20. pp. 82-84. 
 
 ^ Dig. 21. I. 30. I. 
 
 * Si quid tamen damni sensit vel si quid pro servo impendit conse- 
 quetur arbitrio iudicis, sic tamen, non ut ei horum nomine venditor 
 condemnetur, ut ait lulianus, sed ne alias compellatur hominem ven- 
 ditori restituere, quam si eum indemnem praestet : Dig. 21. I. 29. 3. 
 
 ' Dig. 21. I. 31. pr. 
 
rOE TOTDISCLOSED DEFECTS. 205 
 
 own interest to abandon the property rather than to pay 
 them in addition to other sums which he will have to pay 
 in any case. 
 
 (3) The vendor must make good to the purchaser any 
 loss which he has sustained through the article purchased, 
 as for instance by thefts committed on his property by a 
 slave ^, or in the form of damages paid by him to other 
 persons for such slave's delicts. Here again the right is 
 enforceable by retention only, and the vendor can evade 
 the obligation by allowing the purchaser to keep the slave 
 or other article in question ^, unless he had been aware of 
 the defect, or had warranted its absence either expressly or 
 by implication ^ ; in which case of course the purchaser 
 could recover damages by actio ex empto for all loss he had 
 sustained *. Lastly 
 
 (4) The vendor must release the purchaser from all 
 liabilities which he has been obliged to undertake in 
 connection with the contract or the property to which it 
 relates ^ 
 
 ' Dig. 21. I. 23. 8. "^ Dig. 21. I. 31. pr : ib. 58. pr. & I. 
 
 ' To adopt the language in which the English law is stated by 
 Judge Chalmers (Sale of Goods, § 17. (2)) 'where the buyer, relying on 
 the seller's skill or judgment, orders goods for a particular purpose 
 known to the seller, and the goods are of a description which it is in 
 the course of the seller's business to supply (whether he be the manu- 
 facturer or not) there is an implied warranty that the goods shall be 
 reasonably fit for such purpose.' II y a un cas auquel le vendeur, 
 quand meme il auroit ignore absolument le vice de la chose vendue, est 
 neanmoins tenu de la reparation du tort que ce vice a cause a I'ache- 
 teur dans ses autres biens : c'est le cas auquel le vendeur est un 
 ouvrier, ou un marchand qui vend des ouvrages de son art, ou de 
 commerce dont il fait profession : cet ouvrier ou ce marchand est 
 tenu de la reparation de tout le dommage que I'acheteur a souffert 
 par le vice de la chose vendue, en s'en servant a I'usage auquel elle 
 est destinee, quand mgme cet ouvrier ou ce marchand pretendroit 
 avoir ignore ce vice ... La raison est qu'un ouvrier, par la profession 
 de son art, spondet peritiam artis : Pothier, 213. 
 
 " Dig. 18. I. 45 : 19. I. 13. pr : Cod 4. 58. l. : Pothier, 212-216. 
 
 ° Dig. 21. I. 29. 1. 
 
206 EESCISSION BY THE PURCHASEE 
 
 The vendor is not relieved from the performance of these 
 duties by the fact that the purchaser is no longer able to 
 return the property to him, provided his inability is not 
 due to any fault of his own or his subordinates ^. If it is 
 through such fault that the property has ceased to exist, so 
 that he is prevented from returning it, the purchaser can 
 still bring the actio redhibitoria, subject to a deduction 
 from the sum payable to him by the vendor of vrhatever it 
 would have been worth at the time, were it still in exist- 
 ence ^ But if his inability to return it is due to its aliena- 
 tion by him, he can rescind only on its reconveyance to him- 
 self " ; if (in the case of a slave) to manumission by himself, 
 all remedies which he might have had are extinguished, as 
 by an implied waiver of his rights *. 
 Covenants It is further to be observed that both parties could under 
 demand- certain circumstances require one another to enter into 
 eithe/ stipulations in the nature of security or guarantee. One of 
 party. these cases has been already mentioned^. A second is 
 where litigation had arisen in respect of the property 
 between the purchaser and a third party. Here the former, 
 if plaintiff, could be compelled to bind himself with sure- 
 ties to surrender to the vendor, in the event of redhibition, 
 any damages which he might recover, or but for his own 
 fault might have recovered in the action ; while if he were 
 
 ^ E. g. si la chose n'existe plus : si e'est sans sa faute qu'elle a oesse 
 d'exister, comme si ]e cheval que j'ai achete est mort de la maladie 
 pour laquelle j'ai forme 1' action redhibitoire, il me suifira de rendre ce 
 qui en reste, comme la peau: Pothier, 220. See Dig. 21. i. 31. 11 & 
 12 : ib. 47. 1 : ib. 48. pr. The Code Civil has bere departed from tbe 
 Civil La-w : si la chose qui avait des vices a peri par suite de sa mau- 
 vaise qualite, la perte est pour le vendeur .... mais la perte arrives 
 par cas fortuit sera pour le compte de I'acbeteur : Art. 1647 : the de- 
 parture is defended and justified by Demante, Cours analytique de 
 Code Civil, vii. p. 109. 
 
 2 Dig. 21. I. 31. 6 & 11-15 : ib. 38. 3 : ib. 44. 2 : ib. 47. i. & 48 : 
 Pothier, 221. 
 
 = Dig. 21. I. 43. 8. * Dig. 21. I. 47. pr. 
 
 ^ P. 203 supr. 
 
FOE UNDISCLOSED DEFECTS. 207 
 
 defendant he could compel the vendor to give him security 
 for payment of the damages which might be assessed 
 against him ^. Thirdly, if one sold a slave knowing him to 
 be ' fugitivus,' and concealed that knowledge from the pur- 
 chaser, the latter on the slave's flight could bring the actio 
 redhibitoria for the recovery of the purchase money, not- 
 withstanding his inability to restore him, on giving security 
 that he would do all he could to recover and redeliver him 
 to the vendor ^. 
 
 It was laid down by the aedilician edict that the pur- 
 chaser must perform his own duties under the actio redhi- 
 bitoria before he could demand restitution of the purchase 
 money and payment of any other sums which might be 
 due from the vendor ^. The only exception allowed to this 
 rule was where there was reason to suspect that the vendor 
 would be unable to make such restitution, in which case it 
 was sufficient for the purchaser to give security that he 
 would redeliver the property on repayment of the pur- 
 chase money within a fixed time *. 
 
 Although the general principle of the law as to redhibi- Points in 
 tion is to treat both parties in precisely the same manner, parties are 
 there are one or two points in which for special reasons t^eat^ed 
 
 they were treated differently. under the 
 
 actio red- 
 Firstly, if a slave or a filius familias sold some article Mbitoria. 
 
 which belonged to his peculium, and in which a defect was 
 
 subsequently discovered, the master or father was liable 
 
 under an actio redhibitoria only to the extent of that 
 
 peculium, provided that it still belonged to the actual 
 
 vendor, and had not been revoked or resumed by the 
 
 master or father, and including in it the purchase money 
 
 actually paid for the article, but deducting any thing which 
 
 might be due to the master or father himself^. If on the 
 
 1 Dig. 21. I. 21. 2 : ib. 30. pr. 
 
 2 Dig. 21. I. 21. 3 : ib. 22 : Cod. 4. 58. 5. 
 ' Dig. 21. I. 25. 10. 
 
 * Dig. 21. I. 26. ° Dig. 21. I. 23. 4 : ib. 57. i. 
 
2o8 RESCISSION BT THE PUECHASEE 
 
 other hand, a slave or filius familias bought a defective 
 article, the master or father could bring the actio redhibi- 
 toria ; but as he thereby adopted the contract as his own, 
 he could do so only on the condition of doing everything 
 which he would have had to do had he made the contract 
 personally, irrespective of the amount of the peculium, so 
 that he must pay or give security for the payment of the 
 whole of the purchase money before he is entitled to 
 rescind it ^- 
 
 Secondly, the vendor can be compelled, nolens volens, to 
 return the purchase money : the purchaser cannot be com- 
 pelled to return the goods, unless he chooses to do so as the 
 condition of getting his money back ^ : and, moreover, if 
 after return or tender of the goods the vendor refuses to 
 repay the purchase money or to discharge the security 
 given by the purchaser for its payment, he could be con- 
 demned ' in duplum.' ^ 
 
 Thirdly, difEculties might arise from the fact of the 
 defective article having been either bought or sold by two 
 or more persons jointly, or through the vendor or purchaser 
 leaving two or more co-heirs *.' Where there were joint 
 purchasers, or co-heirs of a single purchaser, no redhibition 
 could take place unless it were assented to by allj such 
 assent being followed by the joint appointment of a com- 
 mon attorney for the purpose of the suit, for otherwise the 
 
 ^ Dig. 21. 1. 57. pr. 
 
 ^ lUud sciendum est, si emptor venditori haec non praestet, quae de- 
 siderantur in hac actions, non posse ei venditorem condemnari: si 
 autem emptori venditor ista non praestet, condemnabitur ei : Dig. 21. 
 I. 29. pr. : Pothier, 225. 
 
 ' Nana si neque pretium neque accessionem solvat, neque eum qui eo 
 nomine obligatus erit liberet, dupli pretii et accessionis condemnari 
 iubetm- : Dig. 21. i. 45. 
 
 * But if two or more bought distinct shares in a thing from its 
 owner, there were deemed to be as many separate contracts as there 
 were shares sold : si plures singuli partes ab uno emant, tunc pro 
 parte quisque eorum experietur: Dig. 21. i. 31. 10. 
 
FOB UNDISCLOSED DEFECTS. 2O9 
 
 vendor might be uni-easonably prejudiced^. But after 
 restoration of the property, or if it had ceased to exist 
 through no fault of any of the joint purchasers, each might 
 sue separately for his share of what he could have claimed 
 in its entirety had he been the sole purchaser, and each 
 must separately make good his proportion of accessions 
 fruits and profits, or of damages done to the goods since 
 delivery, unless such damages are indivisible ^, or unless 
 the damage has been caused by one of them only ^ Where 
 there were joint vendors who sold a thing as a whole to a 
 single purchaser, the actio redhibitoria could be brought 
 ' in solidum ' against the owner of any but the smallest 
 share*, lest the innocent purchaser should be driven to a 
 multiplicity of actions^: but the joint heirs of a single 
 vendor could be sued only in the ratio in which they 
 succeeded to the inheritance ^ 
 
 The actio redhibitoria could be brought only within six The 
 months of the date of the contract '' : the time was tempus fimua- 
 utile — i.e. only those days were reckoned on which the *^°'^' 
 action could have been brought * ; and the passages in 
 which this rule is laid down are too numerous and explicit 
 to allow us to believe that Justinian's enactment ' substi- 
 tuting a period of four ordinary years for an annus utilis in 
 all cases of in integrum restitutio could have been intended 
 to apply to this remedy i**. It is contended by some authori- 
 
 ' Dig. 21. I. 31. 5 : Pothier, 223. ' Dig. 21. i. 31. 5-7. 
 
 ^ Dig. 21. I. 31. 9. ^ Dig. 21. I. 44. I. 
 
 ° Ne cogeretur emptor cum multis litigare : Dig. loc. oit. 
 ° Dig. 21. I. 31. 10 : Pothier, 223. ' See next note. 
 
 * Dig. 21. I. 19. 6 : ib. 38. pr. : ib. 55. The last passage shows that 
 the time began to run against the purchaser only from the discovery 
 of the defect, if it were of such a kind (e.g. servus fugitivus) that he 
 could not have been aware of it earlier: but the presumption of 
 negligence could apparently not be lightly rebutted. 
 
 * Cod. 2. 52. 7. 
 
 " Cum proponas servum, quern pridie comparasti, post anni tempus 
 fugisse, qua ratione eo nomine cum venditore eiusdem congredi 
 
 P 
 
2IO 
 
 BESCISSION BY THE PUEOHASBB 
 
 (3) By 
 
 actio 
 
 quanti 
 
 minoris 
 
 or aesti- 
 
 matoria: 
 
 ties that the exceptio redhibitoria ^ was governed by the 
 same period of limitation : but there appears to be no 
 reason for excepting this case from the principle ' quae ad 
 agendum sunt temporalia ad excipiendum sunt perpetua,' 
 and the analogy of the actio and exceptio doli ^ strongly 
 supports the contrary opinion ^. 
 
 It has however been already pointed out that the pur- 
 chaser was not left by the Aediles entirely without redress, 
 if he allowed the time within which he could bring the 
 actio redhibitoria to elapse without availing himself of its 
 protection. He had the option*, during the first six months, 
 of either rescinding the contract, or suing the vendor by 
 actio quanti minoris, also called aestimatoria, for a return of 
 part of his purchase money proportionate to the defects 
 which had appeared ° : an action which he could bring 
 
 quaeras, non possum animadvertere : etenim redhibitoriam actioneiu 
 sex mensum temporibus vel quanto minoris anno conoludi manifesti 
 iuris est : Cod. 4. 58. 2. 
 
 ' P. 201 supr. 
 
 ^ Non sicut de dolo actio certo tempore finitiir ita etiam exceptio 
 eodem tempore danda est : Dig 44. 4. 5. 6. 
 
 ^ The Code Civil enacts (Art. 1648) ' L'action resultant des vices 
 redbibitoires doit etre intentee par I'acquereur dans un bref delai, 
 suivant la nature des vices redbibitoires, et I'usage du lieu oil la vente 
 a ete faite.' For tbe law of the province of Orleans on the subject in 
 the last century see Pothier, 231 . for that of Austria and some of 
 the German States Treitsohke, Kaufoontraot, p. 365. As a rule tbe 
 times are shorter than under the Civil Law. 
 
 * Dig. 21. I. 48.1. 
 
 ^ Pothier, 232. L'acheteur a le choix de rendre la cbose et de se 
 faire restituer le prix, ou de garder la chose et de se faire rendre une 
 partie du prix : Code Civil, Art. 1644. Gluck (20, p. 116) points out 
 the utility of the actio quanti minoris to the purchaser of an estate 
 over which a servitude is found existing which was unknown to him 
 when the price was iixed : the case is dealt with in Dig. 21. i. 61 : cf. 
 Dig. 21. 2. 15. According to English law, if there be a breach of 
 warranty of quality, the purchaser may keep the goods, and plead the 
 breach in diminution of the price (Mondel v. Steel, 8 M. & W. 858), so 
 that the principle of the actio quanti minoris is recognised. In the 
 Scotch law, on the other hand, the Roman rule has disappeared : ' there 
 
FOE UNDISCLOSED DEFECTS. 2 1 I 
 
 a second or third time, and so on, according as new and 
 distinct defects were brought to light ^. This latter remedy its period 
 also lay during another six months ; that is to say, it could tion and 
 be brought at any time within twelve months (tempus utile) ** "" "■ 
 from the making of the contract ^- Sometimes, indeed, the 
 judge who tried an actio quanti minoris had power to deal 
 with the matter as if the action had been redhibitoria, 
 apparently even after the lapse of time by which the latter 
 would have been barred ; this being the case where the 
 property was so entirely valueless that a mere reduction in 
 the amount of the purchase money would have been quite 
 out of the question^. The proportion of the purchase 
 money which had to be returned was determined by ascer- 
 taining, on the purchaser's oath *, how much less he would 
 have given for the article had he known of the defects 
 when he first bought it ^ : and where one of two or more 
 things which had been purchased together for one price, and 
 which could not conveniently be separated, was found to 
 be defective, the depreciation of the others was taken into 
 consideration ^. 
 
 There has been some controversy on the question whether 
 even during the fii'st six months the purchaser could always 
 
 is no right to retain the goods and claim, an abatement of the price 
 as in the actio quanti minoris of the Roman law, unless where there 
 is fraud, or a special bargain or usage ' : Bell, Principles of the Law of 
 Scotland, §99. 
 
 1 Dig. 21. I. 31. 16: 21. 2. 32. I. 
 
 ^ Cod. 4. 58. 2, cited on the previous page : Dig. 21. i. 48. 2. 
 
 ^ Aliquando etiam redhiberi mancipium debebit, licet aestimatoria, 
 id est, quanto minoris, agamus : nam si adeo nulHus sit pretii, ut ne 
 expediat quidem tale mancipium domino habere, veluti si furiosum 
 aut lunaticum sit, lieet aestimatoria actum fuerit, officio tamen iudicis 
 continebitur, ut reddito manoipio pretium recipiatur: Dig. 21. i. 
 43.6. 
 
 * Under the Code Civil by the evidence of experts : the same is the 
 modern practice in Germany : Treitschke, Kaufcontract, p. 358. 
 
 ^ Dig. 21. I. 61 : 21. 2. 32. 1 : 19. l. 13. pr. 
 
 6 Dig. 21. I. 38. 13. 
 
 P 2 
 
2 1 2 RESCISSION BY THE PTJECHASER 
 
 rescind the contract, or whether he was not sometimes 
 restricted to the actio quanti minoris. Some authorities 
 are of opinion that he could rescind only if the defect were 
 such as to render the article quite useless, and that if it 
 merely diminished its usefulness he could only sue for a 
 return of part of his purchase money. But this distinction 
 is quite unknown to the authorities ^, and it is clear that if 
 the defect is not quite trivial ^, and the actio redhibitoria is 
 not yet barred by lapse of time, the purchaser can choose 
 between the two remedies, subject to the rule that after 
 bringing one he cannot bring the other action as well ^, and 
 to the possibility, already noticed, of an actio quanti 
 minoris actually resulting in an order for redhibition. 
 
 The effect of the introduction of these Aedilician remedies 
 upon the Civil Law relating to defects of quality (which has 
 been already considered *) requires a brief examination. 
 K<acti.jii The actiones redhibitoria and quanti minoris may be 
 
 of these 
 
 Aedilician used in any case of fraud (including wilful non-disclosure), 
 ou"uoM-^ warranty, or representation in which the purchaser could 
 ';* 'i^*" previously have resorted to the actio ex empto ^, and bv 
 
 Civil Law. ... JT ' J 
 
 this innovation he secures two advantages. Firstly, it 
 enabled him to rescind many contracts to which the Civil 
 Law would have held him, subject to his claim for damages, 
 for, as has been ali-eady observed, rescission could not be 
 obtained on these grounds by actio ex empto proper unless 
 
 ' See Gliick, 20, pp. 121-125. 
 
 "^ P. 196 supr. ' Dig. 44- 2. 25. i. ■* P. 189 supr. 
 
 ° Nam et qui ex empto potest conveniri, idem etiam redlubitoriis 
 actionibus conveniri potest : Dig. 21. i. 19. 2. For fraud or wilful 
 nondisclosure see further the words of the Edict in Dig. ib. i. i : hoc 
 amplius si quis adversus ea sciens dolo malo vendidisse dicetur, 
 indicium dabimus : for warranties or representations Dig. ib. 18. pr. 
 & I : ib. 19. 2. It may perhaps be doubted whether this rule can be 
 held to apply to a wilful nondisclosure of a mental or moral defect in 
 a slave, for such vitiain general, as has been observed, were not within 
 the scope of the Aedilician remedies. Of course there would be an 
 action ex empto in such a case : Dig. 21. i. I. 9 & 10 : ib. 4. pr. & 4. 
 
FOR UNDISCLOSED DEFECTS. 213 
 
 the purchaser could satisfy the court that he would not have 
 entered into the contract at all had it not been for the 
 fraud practised upon him, or had he known that the 
 representation or warranty would turn out to be unfounded : 
 and secondly, if after rescission and return of the goods the 
 vendor refused to repay the purchase money, he might be 
 condemned in duplum 1. 
 
 That the converse proposition is true, and that the vendor 
 could be sued by actio ex empto in lieu of redhibitoria or 
 quanti minoris wherever either of these remedies would 
 have lain, though affirmed by some authorities ^, is not so 
 free from doubt. Assuming it to be true, the ordinary 
 action on the contract could be brought in two important 
 cases where it would not lie before: against a vendor 
 who was ignorant of the defects in the article sold: 
 and where the purchaser could not show that he had 
 sustained any actual damage by reason of its defective 
 quality. The text of Ulpian upon which the proposition 
 is usually founded ^ certainly does not mean that a purchaser 
 could always demand rescission by actio ex empto wherever 
 he could have demanded it by actio redhibitoria : it means 
 merely that rescission might possibly be the result of such 
 an action, in the sense already explained, exactly as Julian 
 says * that an actio quanti minoris also might possibly end 
 in redhibition ^ It is, however, certain that a purchaser 
 could sue ex empto, and thereby recover a proportion of 
 his purchase money, where the defect was unknown to the 
 vendor * — a case properly remediable by actio quanti minoris : 
 and it is possible that under similar circumstances he might 
 also claim rescission by the ordinary action on the contract 
 
 ' P. 208 supr. 
 '' E.g. Grlflck, 20. p. 136. 
 
 ' Redhibitionem quoque contineri empti iudicio et Labeo et Sabinus 
 putant et noe probamus : Dig. 19. I. 11. 3. 
 
 * Dig. 44. 2. 25. I. * Cf. p. 211 supr. 
 
 = Dig. 19. I. 13. pr. 
 
214 
 
 EBSCISSION BY THE PUECHASEE 
 
 Cases in 
 ■which 
 they are 
 inappli- 
 cable. 
 
 instead of by actio redhibitoria ^- It is noticeable, however, 
 that whenever the civil action was used in a case in which 
 it would not have lain before the extension to it of the 
 Aedilician principles, it was strictly regulated by those 
 principles, in respect both of limitation ^ and of the sum 
 or sums recoverable from the vendor ^. 
 
 It has already been poiated out * that the purchaser had 
 no right to use the Aedilician actions if either he was aware 
 of the defects at the time when he made the contract, or 
 they were so obvious that he must have observed them but 
 for his own negligence. There are in addition four other 
 cases in which these remedies (or one of them) are in- 
 applicable, viz. : 
 
 (i) Where the sale is made subject to a suspensive con- 
 dition or condition precedent, unless and until the condition 
 has been fulfilled ^, for the restitution involved in a redhibi- 
 tion implies a complete and absolute contract. 
 
 (2) No redhibition was allowed of what are called 
 ' simplariae venditiones,' the smaU transactions of every- 
 day life ^ : but they appear to have been subject to the 
 actio quanti minoris. 
 
 (3) Sales by the State could not be impeached by either 
 action '', but if there had been fraud or warranty they could 
 be made the subject of the ordinary action on the contract. 
 Municipal and other corporations were not similarly 
 privileged *- 
 
 ' See Windscheid, Lehrbuch II. § 393, notes i & 9. 
 
 " Vangerow, § 609, note 2. II : Windsclieid, § 393, note 12. 
 
 " Dig. 19. I. 13. pr. & I : 18. i. 45. 
 
 * Pp. 197 supr. s Dig. 21. I. 43. 9. 
 
 " Simplariarum venditionum causa ne sit redhibitio in usu est : 
 Dig. 21. I. 48. 8 : cf. Dig. 18. i. 54. 
 
 ■ lUud sciendum est hoc edictum non pertinere ad venditiones 
 fisoales : Dig. 21. i. i. 3. By the Code Civil the action resulting from 
 redhibitory defects ' n'a pas lieu dans les ventes faites par autorite de 
 justice ' : Art. 1649. 
 
 '* Dig. 21. I. I. 4. 
 
FOE UNDISCLOSED DEFECTS. 215 
 
 (4) Where the benefit of the law had been renounced by 
 the purchaser, whether at the time the contract was made, 
 or subsequently^. The most usual form of this was the 
 vendor's bargaining that he should not be liable^ either for 
 any defects at all, or for certain specified defects ^. If, how- 
 ever, notwithstanding such a compact, the purchaser were 
 able to show that the vendor actually knew at the time of 
 making the contract that the defect existed, and had not 
 merely a suspicion about it, the agreement was inoperative, 
 for the exceptio pacti pleaded to the purchaser's action 
 would be destroyed by the replicatio doli ^. Certain defects 
 in slaves are expressly mentioned in the authorities as 
 insufficient to entitle the purchaser to employ the Aedilician 
 actions : it is perhaps sufficient to give the references to 
 the passages in question *. 
 
 There are many wi'iters on the Civil Law ^ who contend 
 that these remedies are inapplicable to purchasers of things 
 determined generically ^. They argue that it is an implied 
 term in every such contract that the goods actually delivered 
 by the vendor shall be of good quality, and that if they are 
 defective the contract simply has not been performed, so 
 that the purchaser can demand others, and damages for any 
 loss which he may have suffered through the consequent 
 delay, or may even under circumstances refuse to accept 
 any at all. Others'' are unable to discover any reason 
 
 ' Pacisci contra edictum aedilium ommmodo Kcet, sive in ipso 
 negotio venditionis gerendo convenisset sive postea: Dig. 2. 14. 31. 
 
 * Si venditor nominatim exoeperit de aliquo morbo et de oetero 
 sanum esse dixerit aut promiserit, standum est eo quod eonvenit, re- 
 mittentibus enim actiones suas non est regressus dandus : Dig. 21. i. 
 14. 9 : of. Dig. 19. I. 39. 
 
 ' Dig. 21. I. 14. 9 : Pothier, 210, 229, 230. 
 
 ". Dig. 21. I. 6. 2 : ib. 7 : ib. 10. j : ib. 11 : ib. 12. I. 2 & 4 : ib. 14. 
 3&7. 
 
 ° E.g. Windscheid, Lebrbuch, § 394, note 19. "P. 28 supr. 
 
 ' E.g. Tbol, Handelsrecbt, I. § 83 : Vangerow, § 609, note i. 
 
 The French law has been materially altered by an enactment of 
 
2l6 SCOTCH AND KXGLISH LAW. 
 
 in the peculiar nature of the contract for excluding the 
 application of these actions. The point, however, is one 
 upon which there is no Koman authority. 
 
 August 2, 1884, relating to 'les vices redliibitoii-es dans les ventes et 
 echanges d'animaux domestiques ' : which 
 
 (i) defines precisely what are to be deemed 'vices redhibitoires ' 
 in horses, mules, asses, sheep and pigs : 
 
 (2) excludes the actions resulting from such defects wherever the 
 price of the animal does not exceed 100 francs : 
 
 (3) entitles the vendor, when sued by an action corresponding to 
 the Roman quanti minoris, to have the animal back on repaying the 
 purchase money and the costs of the contract : 
 
 (4) fixes the period of limitation (subject to two exceptions) at 
 nine days, with certain exceptions when the animal is sent to a dis- 
 tant purchaser, or removed out of the vendor's ' domicil.' See 
 Demante, Cours analytique de Code Civil. tH. pp. 111-117. 
 
 NOTE A. 
 
 Implied By the Common law of Scotland, which corresponded in general 
 
 warranty -^[y^ tj^g Civil Law, there was an implied warranty against latent 
 in Scotch fS'Ults, even though the buyer should see the commodity (i Stair, 10, 
 and Eng- § 15 : Bells Principles of the Law of Scotland, L § 97) : the goods 
 lish Law. might, on discovery of the fault, be rejected, and if the article 
 perished by such latent fault the buyer was relieved from payment, 
 or entitled to have back the price. But the law was assimilated to 
 that of England by 19 & 20 Vic. c. 60. § 5, which enacted that 'where 
 goods shall, after the passing of this Act, be sold, the seller, if at the 
 time of the sale he was without knowledge that the same were defec- 
 tive or of bad quality, shall not be held to have wairanted their 
 quality or suflBciency : but the goods, with all faults, shall be at 
 the risk of the purchaser, unless the seller shall have given an express 
 warranty of the quality or sufficiency of such goods, or unless the 
 goods have been expressly sold for a specified and particular purpose, 
 in which case the seller shall be considered, without such warranty, to 
 warrant that the same are fit for such purpose.' 
 
 The English law on the subject differs fundamentally from the 
 Roman : speaking generally, in the absence of fraud or of express 
 
SCOTCH AND ENGLISH LAW. 2 I 7 
 
 warranty its maxim is careat emptor. ' In tlie bargain and sale of an 
 existing chattel, by -whicli the property passes, the law does not (in 
 the absence of fraud) imply any warranty of the good quality or con- 
 dition of the chattel so sold ' : per Parke, B. in Ban- v. Gihson, 3 M. & 
 W. 390 : and see the other cases referred to by Chalmers, Sale of Goods, 
 p. 20, note 2. The last named writer observes that the English rule 
 probably owes its origin to the fact that in early times nearly all sales 
 of goods took place in market overt : but the judgment of Parke, B. 
 (in Morley v. Attenhorough). to which he refers in support of this sug- 
 gestion, had reference to the question of implied warranty of title in 
 the vendor, not of qitalHy in the goods. There seems however to be no 
 doubt as to the truth of his further remark that ' the distinct tendency 
 of modern cases is to limit its scope.' 
 
 The following observations will serve to indicate generally the 
 limitations to which the rule is subject : — 
 
 I. At the outset a distinction must be drawn between the sale of a 
 specific ascertained chattel, already existing, which the buyer has in- 
 spected, and an order given for the making or supplying of an article. 
 In sales of the first kind there is never any implied warranty of quality. 
 ' Where goods are m esse and may be inspected by the buyer, and there 
 is no fraud on the part of the seller, the maxim caveat emptor applies, 
 even though the defect which exists in them is latent, and not discover- 
 able on examination, at least where the seller is neither the grower nor 
 manufacturer' : perMellor, J., in Jones v. Just, L. R. 3 Q. B. 197 : Par- 
 kinson V. Lee, 2 East, 314: Emmerton v. Matthews, 7 H. & N. 586: 
 Chanter v. Hopkins, 4 M. & W. 64. It must, however, be remembered 
 that if the chattel is sold by description, and does not correspond with 
 that description, the vendor has simply not performed his contract : 
 Benjamin, pp. 598, 638 : Josling v. Kingsford, 13 C. B. N. S. 447. [So too 
 'it was and still is the law m Scotland, that specific goods sold by de- 
 scription may be rejected even when the buyer has seen and examined 
 them, if they turn out to be different in kind from those described, 
 provided that the difference was not apparent on inspection, e. g. where 
 one sells flax yarn, and delivers yam partly consisting of jute. In such 
 a case the vendor does not fulfil the terms of his contract ' : Bell, I. 
 
 §97-] 
 
 But where an order is given for the making or supplying of an 
 article, there is an implied warranty ' that it is reasonably fit for the 
 purpose for which it is ordinarily used, or that it is fit for the purpose 
 intended by the buyer, if that purpose be communicated to the vendor 
 when the order is given ' (Benjamin, p. 638). Separated from this by 
 only a fine line of distinction is the rule that 
 
 II. Where goods are sold by description, or supplied in compliance 
 with an order by description, by a seller who deals in goods of that 
 
2l8 SCOTCH AND ENGLISH LAW. 
 
 kind (whether he be the manufacturer or not), and they have not been 
 inspected by the buyer, there is 
 
 (a) a condition precedent that the goods shall answer to the descrip- 
 tion : otherwise the contract has not been performed. ' If a man oiFers 
 to buy peas of another, and he sends him beans, he does not perform 
 his contract : but that is not a warranty : there is no u-arranty that he 
 should sell him peas, the contract is to sell peas, and if he sell him 
 anything else in their stead, it is a non-performance of it ' : per Lord 
 Abinger in Chanter v. Hopkins, 4 M. & W. 399 : cf. Shand v. Boiees, 2 
 App. Cas. 455 : and Chalmers, Sale of Goods, p. 19. 
 
 (6) An implied warranty, amounting to a condition (for on breach 
 of it the buyer is entitled to reject the goods : see per Lord Esher, 
 M. E., in Randan v. Newson, 2 Q. B.D. at p. 109, cited in Chalmers, p. 
 22) that they shall be 'saleable or merchantable ' (Benjamin, p. 653) 
 or 'of merchantable quality and condition' (Chalmers, p. 21). In 
 Gardiner v. Gray (4 Camp. 144) Lord EUenborough said ' where there 
 is no opportunity to inspect the commodity, the maxim of caveat emptor 
 does not apply: and in Jones v. Just (L.R. 3Q.B. 197) the Court 
 observed ' we are aware of no case in which the maxim caveat emptor 
 has been applied where there has been no opportunity of inspection, 
 or where that opportunity has not been waived.' But if the goods are 
 to be supphed to a purchaser at a distant place, the warranty does not 
 extend to deterioration which is the necessary and inevitable result of 
 the transit (B11H v. Eobison, 10 Ex. 342), and if deterioration results 
 from exceptional or accidental causes during the transit (such as a 
 railway accident) the loss must be borne by the owner, who may be 
 either the vendor or the purchaser according to circumstances (Benja- 
 min, p. 657). So too in the Scotch law : ' When the goods are afterwards 
 to be furnished or sent to the buyer, they may be rejected on implied 
 warranty, where they are not merchantable according to the deno- 
 mination of the commodity ' : Bell, § 98. 
 
 III. An implied warranty of quality, fitness, or condition may be 
 annexed by the usage of trade. Thus in IJ'eai! v. King (12 East, 452) 
 it was held that where sheep were sold as stock, there was an implied 
 warranty that they were sound, proof having been given that such was 
 the custom of the trade : and in Jones v. Boirden (4 Taunt. 847) it was 
 shown that in auction sales of certain drugs, as pimento, it was usual 
 to state in the catalogue whether they were sea-damaged or not, and 
 in the absence of a statement that they were sea-damaged they would 
 be assumed to be free from that defect : cf. Sijers v. Jonas, 2 Ex. 1 1 1 : 
 Indian Contract Act, 1872, § no. 
 
 IV. Wliere an article is bought for a particular purpose made known 
 to the seller at the time of the contract, and the purchaser relies upon 
 the skill and judgment of the seller to supply what is wanted, it being 
 
SCOTCH AND ENGLISH LAW. 219 
 
 an article of a description which it is in the course of the latter's 
 business to supply, there is an implied warranty that the article sup- 
 plied shall be reasonably fit for such purpose : and it is immaterial 
 that the defect is latent, and was unknown to and even undiscovered 
 by the seller: Randall v. Newson, 2 Q. B. D. 102. C.A. : and see the 
 other oases referred to by Chalmers, Sale of Goods, p. 20, n. 4. The 
 Scotch law is the same : Bell, § 98. 
 
 V. The Court of Appeal, in 1 88 1 , held, in Johnson v. Raylton, ;? Q. B. D. 
 438, that where there is a contract for the sale of goods by a manu- 
 facturer, as such, there is, in the absence of any trade usage to the 
 contrary, an implied warranty that the goods are of the seller's own 
 manufacture. Upon this matter the Scotch law is different : West 
 Stockton Iron Co. v. Nielson, 17 Sc. L. R. 719 r Johnson v. Nicoll, 18 Sc. 
 L. R. 268 : but this point is not exactly relevant to the subject under 
 discussion. 
 
 VI. In a contract of sale by sample, there is (a) an implied warranty 
 that the bulk shall correspond with the sample in quality and condi- 
 tion : Parker v. Palmer, 4 B. & Aid. 387 : Parkinson v. Lee, 2 East, 314 : 
 (b) an implied condition that the buyer shall have a reasonable oppor- 
 tunity of comparing the bulk with the sample : Lorymer v. Smith, I 
 B. & C. I : and, further, if a manufacturer agrees to furnish goods 
 according to sample, the sample is to be considered as if free from any 
 secret defect of manufacture not discoverable on inspection, and un- 
 known to both parties : Drummond v. Van Ingen, 12 App. Ca. 284: 
 Heilhutt V. Hickson, L. R. 7 C. P. 438 : Benjamin, p. 643 sq. : Chalmers, 
 p. 24. As a rule, there is no implied warranty as to the merchantable 
 quality of goods sold by sample : but ' the facts and circumstances of 
 the case may justify the inference that this implied warranty is super- 
 added to the contract ' : Mody v. Oregson, L. R. 4 Ex. 49 : Benjamin, p. 
 664 : ' when a purchaser states generally the nature of the article he 
 requires, and asks the manufacturer to supply specimens of the mode 
 in which he proposes to carry out the order, he trusts to the skill of 
 the manufacturer just as much as if he asked for no such specimens : 
 and I think he has a right to rely on the samples supplied represent- 
 ing a manufactured article which will be fit for the purposes for 
 which such an article is ordinarily used, just as much as he has a right 
 to rely on manufactured goods supphed on an order without samples 
 complying with such a warranty ' : per Lord Herschell, in Drummond 
 V. Tan Ingen, 12 App. Ca. at p. 293. 
 
 VII. Certain warranties, though not exactly of quality, are implied 
 by statute : e. g. the Merchandise Marks Act, 1887, 50 & 51 Vic. c. 28 : 
 the Chain Cables and Anchors Act, 1874, 37 & 38 Vic. c. 51. s. 4: and 
 the Sale of Food and Drugs Act, 1875, 38 & 39 Vic. c. 63. 
 
2 20 SCOTCH AND ENGLISH LAW. 
 
 These implied warranties (except the last) are excluded if there is 
 an express warranty, either by words or acts, which is inconsistent 
 with them (Chalmers, Sale of Goods, p. 13) : Bigge v. Parkinson, 31 
 L. J. Ex. 301 : Dickson v. Zizania, 10 C. B. 602 : and as a rule the war- 
 ranty resulting from a, sale by sample cannot be supplemented by a 
 further implied warranty that the goods are merchantable, though 
 this must be taken subject to the limitation stated above on the 
 authority of Mody v. Qregson and Dyttmmond v. Van Ingen. 
 
Dig. XVIII. 1. 
 
 DE CONTEAHENDA EMPTIONE ET DE PACTIS INTEE 
 
 EMPTOEEM ET VENDITOKEM COMPOSITIS 
 
 ET QUAE EES VENIRE NON POSSUNT. 
 
 [The references in the margin are to the preceding pages.] 
 
 1. PAULUS libro trigensimo tertio ad edictum Origo emendi 3 
 vendendique a permutationibus coepit. olira enim non ita ©rat 
 nummus neque aliud merx, aliud pretium vocabatur, sed 
 unusquisqiie secundum necessitatem temporum ac rerum 
 utiUbus inutilia permutabat, quando plerumque evenit, ut quod 
 alteri superest alteri desit. sed quia non semper nee facile 
 concurrebat, ut, cum tu haberes quod ego desiderarem, invicem 
 haberem quod tu accipere velles, electa materia est, cuius 
 publica ac perpetua aestimatio difficultatibus permutationum 
 aequalitate quantitatis subveniret. eaque materia forma publica 
 percussa usum dominiumque non tam ex substantia praebet 
 quam ex quantitate, nee ultra merx utrumque, sed alterum 
 pretium vocatur. Sed an sine nummis venditio dici hodieque 1 
 possit, dubitatur, veluti si ego togam dedi, ut tunicam acciperem. 66 
 Sabinus et Cassius esse emptionem et venditionem putant : 
 Nerva et Proculus permutationem, non emptionem hoe esse. 
 Sabinus Homero teste utitur, qui exercitum Graecorum aere 
 ferro hominibusque vinum emere refert, illis versibus : 
 
 €v6ev (ip olvi^fiVTO Kapr)Koyi6(ovT€s A^aioi 
 akXoi jjiev ^faXxM, aXXot S' aldaivi (riSripa, 
 aWoi be ptvols, ciWoi 8' air^a-i [Soeacn, 
 aWoi S' diidpanoSecrtriv. 
 
 sed hi versus permutationem significare videntur, non emp- 
 tionem, sicut UH : 
 
222 DIG. XVIII. 1. 
 
 i'vd' avTi TXavKif Kpow'Sijf <j>pevas e^eXero Zevs, 
 OS Trpos Tvbetdrjv Aiofirjbea Tev)^e afiei^eu. 
 
 magis autem pro hac sententia illud diceretur, quod alias idem 
 poeta dicit : 
 
 TTpiaTO KTeaTeaaiv eottriv, 
 
 sed verior est Nervae et Proculi sententia : nam ut aliud est 
 
 vendere, aliud emere, alius emptor, alius venditor, sic aliud est 
 
 pretiuni, aHud merx : quod in permutatione discemi non potest, 
 
 2 uter emptor, uter venditor sit. Est autem emptio iuris gentium, 
 
 2,44et ideo consensu peragitur et inter absentes contrahi potest et 
 
 per nuntium et per litteras. 
 
 1 1 2. ULPIANUS lilro prima ad Sabinitm Inter patrem et filium 
 
 contrahi emptio non potest, sed de rebus castrensibus potest. 
 
 1 Sine pretio nulla venditio est : non autem pretii numeratio, sed 
 
 74 conventio perficit sine scriptis habitam emptionem. 
 
 3. IDEM libro vkensimo octavo ad Sdbinum Si res ita distracta 
 8o, 159, si^i ^^ ®i dispUcuisset inempta esset, constat non esse sub 
 173. 174 condicione distractam, sed resolvi emptionem sub condicione. 
 
 4. P03IP0NIJJS libro nono ad Sab'mum Et Uberi hominis et 
 19, 20 loci sacri et religiosi, qui haberi non potest, emptio intellegitur, 
 
 si ab ignorante emitur, 
 20 5. PATJLUS libro quinto ad Sdbinum quia difficUe dinosci 
 potest liber homo a servo. 
 
 6. POMPONIUS lihro nono ad Sabinum Sed Celsus filius ait 
 19, 2ohominem liberum scientem te emere non posse nee cuiuscumque 
 rei si scias alienationem esse : ut sacra et religiosa loca aut quorum 
 commercium non sit, ut publica, quae non in pecunia populi, 
 1 sed in pubUco usu habeantur, ut est campus Martins. Si fundus 
 annua bima trima die ea lege venisset, ut, si in diem statutum 
 pecunia soluta non esset, fundus inemptus foret et ut, si interim 
 emptor fundum coluerit fructusque ex eo perceperit, inempto 
 eo facto restituerentur et ut, quanti minoris postea alii venisset, 
 ut id emptor venditori praestaret : ad diem pecunia non soluta 
 placet venditori ex vendito eo nomine actionem esse, nee 
 conturbari debemus, quod inempto fundo facto dicatur actionem 
 ex vendito futuram esse : in emptis enim et venditis potius id 
 quod actum, quam id quod dictum sit sequendum est, et cum 
 lege id dictum sit, apparet hoc dumtaxat actum esse, ne venditor 
 
Dia. XVIII. 1. 223 
 
 emptori pecunia ad diem non soliita obligatus esset, non ut 
 omnis obligatio empti et venditi utrique solveretur. Condicio, 2 
 quae initio contractus dicta est, postea alia pactione immutaii 
 potest, siouti etiam abiri a tota emptione potest, si nondum 179 
 impleta sunt, quae utrimque praestari debuerunt. 
 
 7. ULPIANU8 libro vicensimo octavo ad Sabinum Haec ven- 
 ditio servi ' si rationes domini computasset arbitrio ' condicio- 69 
 nalis est : condicionales autem venditiones tunc perficiuntur, 
 cum impleta fuerit condicio. sed utrum haec est venditionis 
 condicio, si ipse dominus putasset suo arbitrio, an vero si arbitrio 
 viri boni ? nam si arbitrium domini acoipiamus, venditio nulla 
 est, quemadmodum si quis ita vendiderit, si voluerit, vel 
 stipulanti sic spondeat ' si voluero, decem dabo ' : neque enim 
 debet in arbitrium rei conferri, an sit obstrictus. placuit itaque 
 veteribus magis in "viri boni arbitrium id collatum videri quam 
 in domini. si igitur rationes potuit accipere nee acoepit, vel 
 accepit, fingit autem se non accepisse, impleta condicio emptionis 
 est et ex empto venditor conveniri potest. Huiusmodi emptio 1 
 'quanti tu eum emisti,' ' quantum pretii in area habeo,' valet : 
 nee enim incertiim est pretium tarn evident! venditione : magis 71 
 enim ignoratur, quanti emptus sit, quam in rei veritate incertum 
 est. Si quis ita emerit : ' est mibi fundus emptus centum et 2 
 quanto pluris eum vendidero,' valet venditio et statim impletur : 71, 72 
 habet enim certum pretium centum, augebitur autem pretium, 
 
 si pluris emptor fundum vendiderit. 
 
 8. P0MP0NIU8 libro nono ad Sabinum Nee emptio nee 
 venditio sine re quae veneat potest intellegi. et tamen fructus 
 et partus futuri reete ementur, ut, cum editus esset partus, iam 
 tunc, cum contractum esset negotium, venditio facta intelle- 
 gatur : sed si id egerit venditor, ne nascatur aut fiant, ex empto 
 agi posse. Aliquando tamen et sine re venditio intellegitur, I 
 veluti eum quasi alea emitur, quod fit, cum captum piscium vel 
 
 avium vel missUium emitur : emptio enim contrahitur etiam si 31,123,186 
 nihil inciderit, quia spei emptio est : et quod missilium nomine 
 eo casu captum est si evietum fuerit, nulla eo nomine ex 
 empto obligatio contrahitur, quia id actum intellegitur. 
 
 9. VLPIANUS libro vicensimo octavo ad Sabinum In venditio- 
 
 nibus et emptionibus consensum debere intercedere palam est : 40, 52, 56 
 ceterum sive in ipsa emptione dissentient sive in pretio sive in 
 
2 24 DIG. XVIIl. 1. 
 
 quo alio, emptio imperfecta est. si igitur ego me fundum 
 emere putarem Cornelianum, tu mihi te vendere Sempronianum 
 putasti, quia in corpore dissensimus, emptio nulla est. idem 
 est, si ego me Stichum, tu Pamphilum absentem vendere 
 putasti : nam cum in corpore dissentiatur, apparet nuUam esse 
 
 1 emptionem. Plane si in nomine dissentiamus, verum de cor- 
 iispore constet, nulla dubitatio est, quin valeat emptio et venditio : 
 
 2 nihil enim facit error nominis, cum de corpore constat. Inde 
 quaeritur, si in ipso corpore non erratur, sed in substantia error 
 
 .S5> 56 sit, ut puta si acetum pro vino veneat, aes pro auro vel plumbum 
 pro argento vel quid aliud argento simile, an emptio et venditio 
 sit. Mareellus scripsit libro sexto digestorum emptionem esse 
 et venditionem, quia in corpus consensum est, etsi in materia 
 sit erratum, ego in vino quidem consentio, quia eadem prope 
 uia-ia est, si modo vinum. acuit : ceterum si vinum non acuit, 
 sed ab initio acetum fuit, ut enibamma, aliud pro alio venisse 
 videtur. in ceteris autem nullam esse venditionem puto, 
 quotiens in materia erratur. 
 
 10. FAULTJS libro quinto ad Sabinum Alitor atque si aurum 
 56 quidem fuerit, deterius autem quam emptor existimaret : tunc 
 
 enim emptio valet. 
 
 11. VLPIANUS lihro ricensimo octavo ad Sahinum AUoquin - 
 quid dicemus, si caecus emptor fuit vel si in materia erratur vel 
 ill minus perito discernendarum materiarum ? in corpus eos con- 
 sensisse dicemus? et quemadmodum consensit, qui non vidit ? 
 
 1 Quod si ego me virginem emere putarem, cum esset iani mulier, 
 56 emptio valebit : in sexu enim non est erratum, ceterum si ego 
 mulierem venderem, tu puerum emere existimasti, quia in sexu 
 error est, nulla emptio, nulla venditio est. 
 
 12. POMPONIUS libro trigensimo prima ad Quinfum Mucium 
 In liuiusmodi autem quaestionibus personae ementium et ven- 
 dentium spectari debent, non eoruni, quibus adquiritur ex eo 
 
 19S contractu actio : nam si servus mens vel filius qui in mea 
 potestate est me praesente sue nomine emat, non est quae- 
 rendum, quid ego existimem, sed quid ille qui contrahit. 
 
 13. IBEM libro nono ad Sabinum Sed si servo meo vel 
 198 ei cui mandavero vendas seiens fugitivum illo ignorante, me 
 
 sciente, non teiieri te ex empto verum est. 
 55 14. VLPIANUS libro vicensimo octavo ad Sabinum Quidtamen 
 
DIG. XVIII. 1, 225 
 
 dicemus, si in materia et qualitate ambo errarent ? ut puta si 
 et ego me vendere aurum putarem et tu emere, cum aes esset ? 
 ut puta coheredes viriolam, quae aurea dicebatur, pretio exqui- 
 site uni heredi vendidissent eaque inventa esset magna ex 
 parte aenea ? venditionem esse constat ideo, quia auri aliquid 
 habuit. nam si inauratum aliquid sit, licet ego aureum putem, 
 yalet venditio : si autem aes pro auro veneat, non valet. 
 
 1 5. PA TIL US libro quinto ad Sabinum Et si consensum f uerit 2 1 
 in corpus, id tamen in rerum natura ante venditionem esse 
 desierit, nulla emptio est. Ignorantia emptori prodest, quae 1 51. '9* 
 non in supinum hominem cadit. Si rem meam mihi ignoranti 2 
 vendideris et iussu meo alii tradideris, non putat Pomponius 
 dominium meum transire, quoniam non hoc mihi propositum 
 
 fuit, sed quasi tuum dominium ad eum transire : et ideo etiam 
 si donaturus mihi rem meam iussu meo alii tradas, idem 
 dicendum erit. 
 
 16. POMPONIUS libro nono ad Sabinum Suae rei emptio 22, 2 J 
 non valet, sive sciens sive ignorans emi : sed si ignorans emi, 
 quod solvere repetere potero, quia nulla obligatio fuit. Nee tamen 1 
 emptioni obstat, si in ea re usus fructus dumtaxat ementis sit : 
 
 17. PAULUS libro trigcnsimo tertio ad edictum oiiicio tamen 
 iudicis pretium minuetur. 
 
 18. POMPONIUS libro nono ad Sabinum Sed si communis 
 ea res emptori cum alio sit, dici debet scisso pretio pro portione 33 
 pro parte emptionem valere, pro parte non valere. Si servus 1 
 doHiini iussu in demonstrandis finibus agri venditi vel errore 
 Vel dolo plus demonstraverit, id tamen demonstratum aecipi 
 oportet, quod dominus senserit : et idem Alfenus scripsit de 
 vacua possessione per servum tradita. 
 
 1 9. IDEM libro trigensimo primo ad Quintum Mucium Quod 
 vendidi non aliter iit accipientis, quam si aut pretium nobis J45 
 solutum sit aut satis eo nomine factum vel etiam iidem habue- 
 rimus emptori sine uUa satisfactione. 
 
 20. IDEM libro nono ad Sabinum Sabinus respondit, si quam 
 
 rem nobis fieri velimus etiam, veluti statuam vel vas aliquod 8, 30, 103 
 seu vestem, ut nihil aUud quam pecuniam daremus, emptionem 
 videri, nee posse ullam locationem esse, ubi corpus ipsum non 
 detur ab eo cui id fieret : aliter atque si aream darem, ubi in- 
 sulam aedificares, quoniam tunc a me substantia proficiscitur. 
 
 Q 
 
2 26 DIG. XVIII, 1. 
 
 21. PAULUS libro qumto ad Sabinum Labeo scripsit obscuii- 
 tatem pacti noeere potius debere venditor! qui id dixerit quam 
 emptori, quia potuit re integra apertius dicere. 
 
 22. VLPIANUS libro vicemimo octavo ad Sabinum Hanc 
 19 legem venditionis ' si quid sacri vel religiosi est, eius venit nihil ' 
 
 supervacuam non esse, sed ad modica loca pertinere. ceterum 
 si omne religiosum vel sacrum vel publicima venierit, nullam 
 esse emptionem, 
 
 25. PAULUS libro quinto ad Sabinum (et quod solverit eo 
 nomine, emptor condicere potest) 
 
 24. ULPIANUS libro vicensimo octavo ad Sabinum in modicis 
 autem ex empto esse actionem, quia non specialiter locus sacer 
 vel religiosus venit, sed emptioni maioris partis aceessit. 
 
 28 25. IDEM libro trigensimo quarto ad Sabinum Si ita distrahatur 
 1 'ilia aut ilia res,' utram eliget venditor, haec erit empta. Qui 
 102 vendidit neeesse non habet fundum emptoris facere, ut cogitur 
 qui fundum stipulanti spopondit. 
 
 26. POMPONIUS libro septimo decimo ad Sabinum Si sciens 
 emam ab eo cui bonis interdictum sit vel cui tempus ad deli- 
 berandum de hereditate ita datum sit, ut ei deminuendi potestas 
 non sit, dominus non ero : dissimiliter atque si a debitore sciens 
 creditorem fraudari emero. 
 
 27. PAULUS libro octavo ad Sabinum Qui a quolibet rem 
 emit, quam putat ipsius esse, bona fide emit : at qui sine tutoris 
 auctoritate a pupillo emit, vel falso tutore auctore, quem scit 
 tutorem non esse, non videtur bona fide emere, ut et Sabinus 
 scripsit. 
 
 28. ULPIANUS libro quadragensimo primo ad Sabinum Kem 
 iSalienam distrahere quem. posse nulla dubitatio est : nam emptio 
 
 est et venditio : sed res emptori auferri potest. 
 
 29. IDEM libro quadragensimo iertio ad Sabinum Quotiens 
 servus venit, non cum peculio distrahitur : et ideo sive non sit 
 exceptum, sive exceptum sit, ne cum peculio veneat, non cum 
 
 99 peculio distractus videtur. unde si qua res fuerit peculiaris 
 a servo subrepta, condici potest videlicet quasi furtiva : hoc ita, 
 si res ad emptorem pervenit. 
 
 30. IBEM libro tngensimo secundo ad edictum Sed ad exhi- 
 99 benduni agi posse nUiilo minus et ex vendito puto. 
 
DIG. XVIlI. 1. 227 
 
 31. POMPONIUS libro vicensimo secundo ad Sabinum Sed et 
 
 si quid postea accessit peculio, reddendum est venditori, veluti 99 
 partus et quod ex opens vicarii perceptum est. 
 
 32. TJLPIANU8 libro quadragensimo quarto ad Sabinum Qui 
 tabernas argentarias vel ceteras quae in solo publico sunt vendit, 17 
 non solum, sed ius vendit, cum istae tabernae publicae sunt, 
 quarum usus ad privates pertinet. 
 
 33. POMPONIUS libro trigensimo tertto ad Sabinum Cum in 
 lege venditionis ita sit scriptum : ' flumina stillicidia uti nunc 
 sunt,^ ut ita sint,' nee additur, quae flumina vel stillicidia 
 primum spectari oportet, quid acti sit : si non id appareat, tunc 
 id accipitur quod venditori nocet : ambigua enim oratio est. 
 
 3 4. PA UL US libro trigensimo tertio ad edictum Si in emptione 
 fundi dictum sit accedere Stichum servum neque intellegatur, 
 quis ex pluribus accesserit, cum de alio emptor, de alio venditor 53 
 senserit, nihilo minus fundi venditionem valere constat : sed 
 Labeo ait eum Stichum deberi quem venditor intellexerit. nee 
 refert, quanti sit accessio, sive plus in ea sit quam in ipsa re 
 cui accedat an minus : plerasque enim res aliquando propter 
 accessiones emimus, sicuti cum domus propter marmora et 
 statuas et tabulas pictas ematur. Omnium rerum, quas quis 1 
 habere vel possidere vel persequi potest, venditio recte fit : 16 
 quas vero natura vel gentium ius vel mores civitatis commercio 
 exuerunt, earum nulla venditio est. Liberum hominem scientes 2 
 emere non possumus. sed nee talis emptio aut stipulatio 
 admittenda est : ' cum servus erit,' quamvis dixerimus futuras 20 
 res emi posse : nee enim fas est eiusmodi casus exspectare. 
 Item si et emptor et venditor scit furtivum esse quod venit, a 3 - 
 neutra parte obligatio contrahitur : si emptor solus scit, non 
 obligabitur venditor nee tamen ex vendito quicquam consequitur, 18, 19, 6a 
 nisi ultro quod convenerit praestet : quod si venditor scit, 
 emptor ignoravit, utrinque obligatio contrahitur, et ita Pom- 
 ponius quoque scribit. Eei suae emptio tunc valet, cum ab 4 
 initio agatur, ut possessionem emat, quam forte venditor habuit, 23 
 et in iudicio possessionis potior esset. Alia causa est degustandi, 5 
 alia metiendi : gustus enim ad hoc proficit, ut improbare liceat, 83, 173 
 mensura vero non eo proficit, ut aut plus aut minus veneat, sed 
 ut appareat, quantum ematur. Si emptio ita facta fuerit : ' est 6 
 mihi emptus Stichus aut Pamphilus,' in potestate est venditoris, 76, 88 
 
 Q 2 
 
2 28 DIG. XVIII, 1. 
 
 quern velit dare, sicut in stipulationibus, sed uno mortuo qui 
 
 ' superest dandus est : et ideo prioris perioulum ad venditorem, 
 
 posterioris ad emptorem respicit. sed et si pariter decesserunt, 
 
 pretium debebitur : unus enim utique perieulo emptoris vixit. 
 
 idem dicendum est etiam, si emptoris fuit arbitrium quern vellet 
 
 habere, si modo hoc solum arbitrio eius commissum sit, ut quem 
 
 voluisset emptum haberet, non et illud, an emptum habere! 
 
 7 Tutor rem pupilli emere non potest : idemque porrigendum est 
 
 9, lo ad similia, id est ad curatores proeuratores et qui negotia aliena 
 
 genint. 
 
 35. GAITTS libro decimo ad edictum provinciak Quod saepe 
 
 48 arrae nomine pro emptione datur, non eo pertinet, quasi sine 
 
 arra conventio nihil proficiat, sed ut evidentius probari possit 
 
 1 convenisse de pretio. Illud constat unperfectima esse negotium, 
 69 cum emere volenti sic venditor dicit : ' quanti velis, quanti 
 
 aequum putaveris, quanti aestimaveris, habebis emptum.' 
 
 2 Veneni mali quidam putant non contrahi emptionem, quia nee 
 21 societas aut mandatuni flagitiosae rei ullas vires habet : quae 
 
 sententia potest sane vera videri de his quae nuUo modo 
 adiectione alterius materiae usu nobis esse possunt : de his vero 
 quae mixta aliis materiis adeo noeendi naturam deponunt, ut ex 
 his antidoti et alia quaedam salubria medicamenta conficiantur, 
 
 3 aliud dici potest. Si quis amico peregre eunti mandaverit, ut 
 fugitivum suum quaerat et si invenerit vendat, nee ipse contra 
 senatus consultum committit, quia non vendidit, neque amicus 
 eius, quia praesentem vendit : emptor quoque, qui praesentem 
 
 4 emit, recte negotium gerere intellegitur. Si res vendita per 
 furtum perierit, prius animadvertendum erit, quid inter eos de 
 
 Sy, yo, 107 custodia rei convenerat : si nihil appareat convenisse, talis 
 custodia desideranda est a venditore, qualem bonus pater 
 familias suis rebus adhibet : quam si praestiterit et tamen rem 
 perdidit, securas esse debet, ut tamen scilicet vindicationem rei 
 et condictionem exhibeat emptori. undo videbimus in personam 
 eius, qui alienam rem vendideiit : cum is nuUam vindicationem 
 aut condictionem habere possit, oh id ipsum damnandus est, 
 quia, si suam rem vendidisset, potuisset eas actiones ad emp- 
 
 5 torem transferre. In his quae pondere numero mensurave 
 84 constant, veluti frumento vino oleo argento, modo ea servantur 
 
 quae in ceteris, ut simul atque de pretio convenerit, videatur 
 
DIG. Xvm. 1. 229 
 
 perfecta venditio, modo ut, etiamsi de pretio eonvenerit, non 
 tamen aliter videatur perfecta venditio, quam si admensa 
 adpensa adnumeratave sint. nam si omne vinum vel oleum 
 vel frumentum vel argentum quantumoumque esset uno pretio 
 venierit, idem iuris est quod in ceteris rebus, quod si vinum 
 ita venierit, ut in singulas amphoras, item oleum, ut in singulas 
 metretas, item frumentum, ut in singulos modios, item argentum, 
 ut in singulas libras certum pretium diceretur, quaeritur, quando 
 videatur emptio perfici. quod similiter scilicet quaeritur et de 
 his quae numero constant, si pro numero corporum pretium 
 fuerit statutura. Sabinus et Cassius tunc perfici emptionem 
 existimant, cum adnumerata admensa adpensave sint, quia 
 venditio quasi sub hac condicione videtur fieri, ut in singulas 
 metretas aut in singulos modios quos quasve admensus eris, aut 
 in singulas libras quas adpenderis, aut in singula corpora quae 
 adnumeraveris. Ergo et si grex venierit, si quidem universa- 6 
 liter uno pretio, perfecta videtur, postquam de pretio eonvenerit : 
 si vero in singula corpora certo pretio, eadem erunt, quae 
 proxime tractavimus. Sed et si ex doliario pars vini venierit, 7 
 veluti metretae centum, verissimum est (quod et constare videtur) 
 antequam admetiatur, omne periculum ad venditorem pertinere : 29, 85 
 nee interest, unum pretium omnium centum metretarum in 
 semel dictum sit an in singulas eas. Si quis in vendendo 8 
 praedio confinem celaverit, quem emptor si audisset, empturus 190 
 non esset, teneri venditorem. 
 
 36. VLPIANUS libra qiiadragensimo tertio ad edictum Cum 
 in venditione quis pretium rei ponit donationis causa non exac- 74 
 turus, non videtur vendere. 
 
 37. IDEM libro tertio disputationum Si quis fundum iure 
 hereditario sibi delatum ita vendidisset : ' erit tibi emptus tanti, 
 quanti a testatore emptus est,' mox inveniatur non emptus, sed 71, 164 
 donatus testatori, videtur quasi sine pretio facta venditio, 
 ideoque similis erit sub condicione factae venditioni, quae nulla 
 
 est, si condicio defecerit. 
 
 38. IDEM libro septimo disputationum Si quis donationis causa 
 minoris vendat, venditio valet ; totiens enim dicimus in totum 
 venditionem non valere, quotiens universa venditio donationis 10, 74 
 causa facta est : quotiens vero viliore pretio res donationis 
 causa distrahitur, dubium non est venditionem valere. hoc 
 
230 DIG. xviir. 1. 
 
 inter ceteros : inter virum vero et uxorem donationis causa 
 venditio facta pretio viliore nullius momenti est. 
 
 39. lULIANUS Ubro quinto decimodigestorum Si debitor rem 
 pigneratam a creditore redemerit, quasi suae rei emptor actione 
 ex vendito non tenetur et omnia in integro sunt creditor!. 
 
 1 Verisimile est eum, qui fructum olivae pendentis vendidisset et 
 stipulatus est decern pondo olei quod natum esset, pretium 
 ^2 constituisse ex eo quod natum esset usque ad decem^ pondo 
 olei : idcirco solis quinque collectis non amplius emptor petere 
 potest quam quinque pondo olei, quae coUecta essent, a plerisque 
 responsum est. 
 
 40. PAULUS Ubro quaiio epitomarum Alfeni digestorum Qui 
 fundum vendebat, in lege ita dixerat, ut emptor in diebus 
 triginta proximis fundum metiretur et de modo renuntiaret, 
 et si ante eam diem non renuntiasset, ut venditoris fides soluta 
 esset : em^ptor intra diem mensurae quo minorem modum esse 
 credidit renuntiavit et pecuniam pro eo accepit : postea eum 
 fundum vendidit et cum ipse emptori suo admetiretur, multo 
 minorem modum agri quam putaverat invenit : quaerebat, an 
 id quod minor is esset consequi a suo venditore posset, re- 
 spondit interesse, quemadmodum lex diceretur : nam si ita 
 dictum esset, ut emptor diebus triginta proximis fundum 
 metiatur et domino renuntiet, quanto modus agri minor sit, 
 quo post diem trigensimum renuntiasset, nihil ei profuturum : 
 sed si ita pactum esset, ut emptor in diebus proximis fundum 
 metiatur et de modo agri renuntiet, etsi in diebus triginta 
 renuntiasset minorem modum agri esse, quamvis multis post 
 
 1 annis posse eum quo minor is modus agri fuisset repetere. In 
 lege fundi aquam accessuram dixit : quaerebatur, an etiam iter 
 aquae accessisset. respondit sibi videri id actum esse, et ideo 
 
 2 iter quoque venditorem tradere oportere. Qui agrum vendebat, 
 dixit fundi iugera decem et octo esse, et quod eius admensum 
 
 r;4. 73 erit, ad singula iugera certum pretium stipulatus ei-at : viginti 
 
 3 inventa sunt : pro viginti deberi pecuniam respondit. Fundi 
 venditor frumenta nianu sata receperat : in eo fundo ex stipula 
 seges erat enata : quaesitum est, an pacto contineretur. re- 
 spondit maxime referre, quid est actum : ceterum secundum 
 verba non esse actum, quod ex stipula nasceretur, non magis 
 quam si quid ex sacco saccarii cecidisset aut ex eo quod avibus 
 
DIG. XVIII. 1. 231 
 
 ex aere cecidisset natum esset. Cum fundum quis vendiderat 4 
 et omnem fructum receperat, et arundinem caeduam et silvam 
 in fruotu esse respondit. Dolia, quae in fundo domini essent, 5 
 accessura dixit : etiam ea, quae servus qui fundum coluerat 99 
 emisset peculiaria, emptori eessura respondit. Kota quoque, 6 
 per quam aqua traheretur, nihilo minus aedificii est quam 98, 99 
 situla. 
 
 41. lULIANUS lilro tertio ad Urseium Ferocem Cum ab eo, 
 qui fundum alii obligatum habebat, quidam sic em.ptum rogas- 15S 
 set, ut esset is sibi emptus, si eum liberasset, dummodo ante 
 kalendas lulias liberaret, quaesitum est, an utiliter agere 
 possit ex empto in hoc, ut venditor eum liberaret. respondit : 
 videamus, quid inter ementem et vendentem actum sit. nam 
 
 si id actum est, ut omni modo intra kalendas lulias venditor 
 fundum liberaret, ex empto erit actio, ut liberet, nee sub con. 
 dicione emptio facta intellegetur, veluti si hoc modo emptor 
 interrogaverit : ' erit mihi fundus emptus ita, ut eum intra 
 kalendas lulias liberes,' vel 'ita, ut eum intra kalendas a Titio 
 redimas.' si vero sub condicione facta emptio est, non poterit 
 agi, ut condieio impleatur. Mensam argento coopertam mihi 1 
 ignoranti pro solida vendidisti imprudens : nulla est emptio 55 
 peeuniaque eo nomine data condicetur. 
 
 42. MABCIANUS libro primo instiiutionum Domini neque 
 per se neque per procuratores suos possunt saltem criminosos 
 servos vendere, ut cum bestiis pugnarent. et ita divi fratres 
 rescripserunt. 
 
 43. FLOBENTINUS lihro octavo institutionum Ea quae com- 
 mendandi causa in venditionibus dicuntur, si palam appareant, 
 venditorem non obligant, veluti si dicat servum speciosum, 59> 191 
 domum bene aedificatam : at si dixerit hominem litteratum vel 
 artificem, praestare debet : nam hoc ipso pluris vendit. Quae- 1 
 dam etiam poUicitationes venditorem non obligant, si ita in 
 promptu res sit, ut eam emptor non ignoraverit, veluti si quis 
 hominem luminibus effossis emat et de sanitate stipuletur : 197 
 nam de cetera parte corporis potius stipulatus videtur quam de 
 
 eo, in quo se ipse decipiebat. Dolum malum a se abesse prae- 2 
 stare venditor debet, qui non tantum in eo est, qui fallendi 59>6i,i89 
 causa obscure loquitur, sed etiam qui insidiose obscure dis- 
 simulat. 
 
232 DIG. XVIII. 1. 
 
 44. MARCIANU8 lihro tertio regularum Si duos quis servos 
 emerit pariter xiiio pretio, quorum alter ante venditionem 
 jnortuus est, neque in vivo constat emptio. 
 
 45. IDEM libro quarto regularum Labeo libro posteriorum 
 scribit, si vestimenta interpola quis pro novis emerit, Trebatio 
 placere ita emptori praestandum quod interest, si ignorans 
 
 55, 205, interpola emerit. quam sententiam et Pomponius probat, m 
 
 "^ qua et lulianus est, qui ait, si quidem ignorabat venditor, 
 
 ipsius rei nomine teneri, si sciebat, etiam damni quod ex eo 
 
 contingit : quemadmodum si vas aurichaloum pro auro vendi- 
 
 disset ignorans, tenetur, ut aurum quod vendidit praestet. 
 
 46. IDEM libro singulari de delatoribus Non licet ex officio. 
 10 quod administrat quis, emere quid vel per se vel per aliam 
 
 personam : alioquin non tantum rem amittit, sed et in quadru- 
 plum convenitur secundum constitutionem Severi et Antonini : 
 et hoc ad procuratorem quoque Caesaris pertinet. sed hoc ita 
 se habet, nisi specialiter quibusdam hoc concessum est. 
 
 47. JJLPIANTJS libro vicensimo nono ad Sabinum Si aquae duc- 
 98, 99 tus debeatur praedio, et ius aquae transit ad emptorem, etiamsi 
 
 nihil dictum sit, siout et ipsae fistulae, per quas aqua ducitur, 
 
 99 48. PAULUS libro quinto ad Sabinum licet extra aedes sint : 
 
 49. JJLPIANTJS libro licensimo iwno ad Sabinum et quam- 
 99 quam ius aquae non sequatur, quod amissum est, attamen fistulae 
 
 et canales dum sibi sequuntur, quasi pars aedium ad emptorem 
 perveniunt. et ita Pomponius libro decimo putat. 
 
 50. IDEM libro undecimo ad edicfum Labeo scribit, si mihi 
 bibliothecam ita vendideris, si decuriones Campani locum 
 mihi vendidissent, in quo earn ponerem, et per me stet, quo 
 minus id a Campanis impetrem, non esse dubitandum, quin 
 praescriptis verbis agi possit. ego etiam ex vendito agi posse 
 puto quasi impleta condicione, cum per emptorem stet, quo 
 minus impleatur. 
 
 51. PAULUS libro vicensimo primo ad edidum Litora, quae 
 fundo vendito coniuncta sunt, in modum non computantur, 
 quia nullius sunt, sed iure gentium omnibus vacant : nee viae 
 
 91 publicae aut loca religiosa vel sacra, itaque ut proficiant 
 venditori, caveri solet, ut viae, item litora et loca publica in 
 modum cedant. 
 
DIG. XVIII. 1. 233 
 
 52. IDEM libra quinquagensimo quarto ad edicium Senatus 
 censuit, ne quis domum villamve dirueret, quo plus sibi ad- 
 quireretur neve quis negotiandi causa eorum quid emeret 21 
 venderetve : poena in eum, qui adversus senatus consultum 
 fecisset, constituta est, ut duplum eius quanti emisset in 
 aerarium inferre oogeretur, in eum vero, qui vendidisset, ut 
 irrita fieret venditio. plane si mihi pietium solveris, cum tu 
 duplum aerario debeas, repetes a me : quod a mea parte irrita 
 facta est venditio. nee solum huic senatus consulto locus erit, 
 
 si quis suam villam vel domum, sed et si alienam vendiderit. 
 
 53. GAITJS libra vicensimo octavo ad edictum provindale Ut 
 res emptoris fiat, nihil interest, utrum solutum sit pretium an eo 
 nomine fideiussor datus sit. quod autem de fideiussore diximus, 145 
 plenius acceptum est, qualibet ratione si venditori de pretio 
 satisfactum est, veluti expromissore aut pignore dato, proinde 
 sit, ac si pretium solutum esset. 
 
 54. PAULTJS libra primo ad edictum aedilium curulium Ees 
 bona fide vendita propter minimam causam inempta fieri non 214 
 debet. 
 
 55. IDEM libra secundo ad edictum aedilium cmulium Nuda 
 et imaginaria venditio pro non facta est et ideo nee alienatio 74 
 eius rei intellegitur. 
 
 56. IDEM libra quinquagensimo ad edictum Si quis sub hoc 
 pacto vendiderit ancillam, ne prostituatur et, si contra factum 
 esset, uti liceret ei abducere, etsi per plures emptores manci- 
 piiun cucurrerit, ei qui primo vendit abducendi potestas fit. 
 
 57. PAULTJS libra quinto ad Plautium Domum emi, cum 
 earn et ego et venditor combustam ignoraremus. Nerva Sabinus 21,23 
 Cassius nihil venisse, quamvis area maneat, peouniamque solu- 
 tam condici posse aiunt. sed si pars domus maneret, Neratius 
 
 ait hac quaestione multum interesse, quanta pars domus in- 
 cendio consumpta permaneat, ut, si quidem amplior domus 
 pars exusta est, non compellatur emptor perficere emptionem, 
 sed etiam quod forte solutum ab eo est repetet : sin vero vel 
 dimidia pars vel minor quam dimidia exusta fuerit, tunc coar- 
 tandus est emptor venditionem adimplere aestimatione viri 
 boni arbitratu habita, ut, quod ex pretio propter incendium 
 decrescere fuerit inventum, ab huius praestatione liberetur, 
 
2 34 DIG. XVIII. 1. 
 
 1 Sin autem venditor quidem sciebat domum esse exustam, 
 emptor autem ignorabat, nuUam venditionem stare, si tota 
 domus ante venditionem exusta sit : si vero quantacumque 
 pars aedificii remaneat, et stare venditionem et venditorem 
 
 2 emptori quod interest restituere. SimUi quoque modo ex 
 diverso tractari oportet, ubi emptor quidem sciebat, venditor 
 
 21 autem ignorabat : et hie enim oportet et venditionem stare et 
 omne pretium ab emptore venditori, si non depensum est, solvi 
 
 3 vel si solutum sit, non repeti. Quod si uterque sciebat et 
 emptor et venditor domum esse exustam totam vel ex parte, 
 
 21, 62 nihil actum fuisse dolo inter utramque partem compensando et 
 iudicio, quod ex bona j&de descendit, dolo ex utraque parte 
 veniente stare non concedente. 
 
 58. PAPINIANUS libro decimo qiiaestionum Arboribus quo- 
 que vento deieetis vel absumptis igne dictum est emptionem 
 fundi non videri esse contractam, si contemplatione iUarum 
 arborum, veluti ohveti, fundus eomparabatur, sive sciente sive 
 ignorante venditore : sive autem emptor sciebat vel ignorabat 
 vel uterque eonim, haec optinent, quae in superioribus casibus 
 pro aedibus dicta sunt. 
 
 59. CELSUS libro octavo digestorum Cum venderes fundum, 
 non dixisti 'ita ut optimus maximusque': verum est, quod 
 
 10;, igi Quinto Mucio placebat, non libervmi, sed qualis esset, fundum 
 praestari oportere. idem et in urbanis praediis dicendum est. 
 
 60. MABCELLUS Uhro sexto digcstamni Comprehensum erat 
 28 lege venditionis dolia sexaginta emptori accessura : cum essent 
 
 centum, in venditoris fore potestate responsum est quae vellet 
 dare. 
 
 61. IDE2I Uhro viccnsimo digestorum Existimo posse me id 
 23 quod meum est sub condicione emere, quia forte speratur meum 
 
 esse desinere. 
 
 62. MODESTINTJS libro giiinto regularum Qui officii causa in 
 10 provincia agit vel militat, praedia comparare in eadem provincia 
 
 non potest, praeterquam si paterna eius a fisco distrahantur. 
 
 1 Qui nesciens loca sacra vel religiosa vel publica pro privatis 
 
 19, 54 comparavit, licet emptio non teneat, ex empto tamen adversus 
 
 venditorem experietur, ut consequatur quod interfuit eius, ne 
 
 72 2 deciperetur. Ees in aversione empta, si non dolo venditoris 
 
DIG. XVIII. 1. 235 
 
 factum sit, ad periculum emptoris pertinebit, etiamsi res ad- 
 signata non sit. 
 
 63. I A VOLENUS libro sepiimo ex Cassio Cum servo dominus 
 rem vendere certae personae iusserit, si alii vendidisset, quam 
 cui iussus erat, venditio non valet : idem iuris in libera persona 
 est : cum perfioi venditio non potuit in eius persona, cui domi- 
 nus venire eam noluit. Demonstratione fundi facta fines nomi- 1 
 nari supervacuum est : si nominentur, etiam ipsum venditorem 106 
 nominare oportet, si forte alium agrum confinem possidet. 
 
 64. IDEM libro secundo epistularum Fundus ille est mihi et 
 Titio emptus : quaero, utnmi in partem an in totum venditio 
 consistat an nihil actum sit. respondi personam Titii super- 
 vacuo aecipiendam puto ideoque totius fundi emptionem ad me 
 pertinere. 
 
 65. IDEM libro undecimo epistularum Convenit mihi tecum, 
 ut certum numerum tegularum mihi dares certo pretio quod ut 
 faceres : utrum emptio sit an locatio ? respondit, si ex meo 7 
 fundo tegulas tibi factas ut darem convenit, emptionem puto 
 esse, non conductionem : totiens enim conductio alicuius rei 
 est, quotiens materia, in qua aliquid praestatur, in eodem statu 
 eiusdem manet : quotiens vero et immutatur et alienatur, 
 emiptio magis quam locatio intellegi debet. 
 
 66. POMPONIUS libro trigensimo xyrimo ad Quintum Mucium 
 
 In vendendo fundo quaedam etiam si non dicantur, praestanda 105,106, 
 sunt, veluti ne fundus evincatur aut usus fructus eius, quaedam "7' ^^^ 
 ita demum, si dicta sint, veluti viam iter actum aquae ductum 
 praestatu iri : idem et in servitutibus urbanorum praediorum. 
 Si cum servitus venditis praediis deberetur nee commemoraverit 1 
 venditor, sed sciens esse reticuerit et ob id per ignorantiam rei 
 emptor non utendo per statutum tempus eam servituteih 
 amiserit, quidam recte putant venditorem teneri ex empto ob 
 dolum. Quintus Mucins scribit, qui scripsit ' ruta caesa quaeque 2 
 aedium fundive non sunt,' bis idem scriptum : nam ruta caesa 
 ea sunt quae neque aedium neque fundi sunt. 
 
 67. IDEM libro trigensimo nono ad Quintum Mucium Alienatio 
 cum fit, cum sua causa dominium ad alium transferimus, quae 98, 99 
 esset futura, si apud nos ea res mansisset, idque toto iure civili 
 
 ita se habet, praeterquam si aliquid nominatim sit constitutum. 
 
236 DIG. XVIII. 1, 
 
 68. PBOCULUS libra sexto epistularum Si, cum fundmn ven- 
 110 deres, in lege dixisses, quod mercedis nomine a conductore exe- 
 
 gisses, id emptori accessm-um esse, existimo te in exigendo non 
 solum bonam fidem, sed etiam diligentiam praestare debere, id 
 
 1 est non solum ut a te dolus malus absit, sed etiam ut culpa. 
 s8, 61 Fere aliqui solent haec verba adicere : ' dolus malus a venditore 
 
 2 aberit,' qui etiam si adieotum non est, abesse debet. Nee 
 videtur abesse, si per eum factum est aut fiet, quo minus 
 
 61, 107 fundum emptor possideat. erit ergo ex empto actio, non ut 
 venditor vacuam possessionem tradat, cum multis modis 
 accidere poterit, ne tradere possit, sed ut, si quid dolo malo 
 fecit aut facit, dolus malus eius aestimaretur. 
 
 69. IDEM lihro undecimo epishdannn Eutilia Polla emit 
 lacum Sabatenem Angularium et circa eum lacum pedes decem : 
 quaero, numquid et decern pedes, qui tunc accessemnt, sub 
 aqua sint, quia lacus crevit, an proximi pedes decem ab aqua 
 RutUiae Pollae iuris sint. Proculus respondit : ego existimo 
 eatenus lacum, queni emit Eutilia PoUa, venisse, quatenua 
 tunc fuit, et circa eum decem pedes qui tunc fuerunt, nee ob 
 earn rem, quod lacus postea crevit, latius eum possidere debet 
 quam emit. 
 
 70. LICIXXIUS BJJFINUS lilro octavo rcgidanim Liberi 
 hominis emptionem contrahi posse plerique existimaverunt, si 
 
 19, 20, 54 modo inter ignorantes id fiat, quod idem placet etiam, si vendi- 
 tor sciat, emptor autem ignoret. quod si emptor seiens liberum 
 esse emerit, nulla emptio contrahitur. 
 
 n. PAPIBIJJS lUSTUSlibropriiuo consfitutio-num Impera- 
 tores Antoninus et Verus Augusti Sextio "\'ero in haec verba 
 reseripserunt : ' quibus mensuris aut pretiis negotiatores ^iua 
 compararent, in contrahentium potestate esse : neque enim 
 quisquam cogitur vendere, si aut pretium aut mensura dis- 
 pliceat, praesertim si nihil contra consuetudinem regionis fiat.' 
 
 72. PAPINIANUS libro decimo quacstiomim Pacta conventa, 
 2.157,180 quae postea facta detrahunt aliquid emptioni, contineri con- 
 tractui videntur : quae vero adieiunt, credimus non inesse. 
 quod locum habet in his, quae adminioula sunt emptionis, veluti 
 ne cautio duplae praestetur aut ut cum fideiussore cautio duplae 
 praestetur. sed quo casu agente , emptore non valet pactum, 
 
mq. XVIII, 1. 237 
 
 idem vires habebit iure exceptionis agente venditore. an idem 
 dici possit aucto postea vel deminuto pretio, non immerito 
 quaesitum est, quoniam emptionis substantia oonstitit ex pretio. 
 PA TJLUS notat ; si omnibus integris manentibus de augendo vel 
 deminuendo pretio rursum convenit, recessum a priore contractu 
 et nova emptio intercessisse videtur. PAFINIANUS : Lege 1 
 venditionis ilia facta ' si quid sacri aut religiosi aut publici est, 
 eius nihil venit,' si res non in usu publico, sed in patrimonio 
 fisci erit, venditio eius valebit, nee venditori proderit exceptio, 
 quae non habuit locum. 
 
 73. IBEM Ubro tertio responsonim Aede sacra terrae motu 
 dinita locus aedificii non est profanus et ideo venire non potest. 19 
 Intra maceriam sepulchrorum hortis vel ceteris culturis loca 1 
 pura servata, si nihil venditor nominatim excepit, ad emptorem 
 pertinent. 
 
 74. IBEM Ubro prima definitionum Clavibus traditis ita 
 mercium in horreis conditarum possessio tradita videtur, si 
 claves apud horrea traditae sint : quo facto confestim emptor 
 dominium et possessionem adipiscitur, etsi non aperuerit horrea : 99 
 quod si venditoris merces non fuerunt, usucapio confestim in- 
 choabitur. 
 
 75. HERMOGENIANTJS Ubro seamdo iuris epitomarum Qui 
 fundum vendidit, ut eum certa mercede conductum ipse habeat 
 
 vel, si vendat, non alii, sed sibi distrahat vel simile aliquid pacisca- 36, 1 76 
 tur : ad complendum id, quod pepigerunt, ex vendito agere poterit. 
 
 76. PATJLTJS Ubro sexto responsorum Delia in horreis defossa 
 
 si non sint nominatim in venditione excepta, horreorum vendi- 99 
 tioni cessisse videri. Eum, qui in locum emptoris successit, is- 1 
 dem defensionibus uti posse, quibus venditor eius uti potuisset, 
 sed et longae possessionis praescriptione, si utriusque possessio 
 impleat tempera constitutionibus statuta. 
 
 77. I A VOLENTI S Uhro quarto ex poster ioribusLabeonis In lege 
 fundi vendundi lapidicinae in eo fundo ubique essent exeeptae 
 erant, et post multum temporis in eo fundo repertae erant 99 
 lapidicinae. eas quoque venditoris esse Tubero respondit : 
 Labeo referre quid actum sit : si non appareat, non videri eas 
 lapidicinas esse exceptas : neminem enim nee vendere nee 
 excipere quod non sit, et lapidicina,s nullas esse, nisi quae 
 
238 DIG. xvni. 1. 
 
 apparent et caedantur : aKter interpretantibus totum fundum 
 lapidicinarum fore, si forte toto eo sub terra esset lapis, hoc 
 probo. 
 
 78. LABEO libro quarto posteriorum a lavoleno epitomatorum 
 Fistulas emptori accessuras in lege dictum erat : quaerebatur, 
 an castellum, ex quo fistulis aqua duceretur, accederet. respondi 
 apparere id actum esse, ut id quoque accederet, licet scriptura 
 
 1 non continetur. Fundum ab eo emisti, cuius filii postea tutelam 
 administras, nee vacuam accepisti possessionem, dixi tradere 
 te tibi possessionem hoc modo posse, ut pupillus et familia eius 
 decedat de fundo, tunc demum tu ingrediaris possessionem. 
 
 2 Qui fundum ea lege emerat, ut soluta pecunia traderetur ei 
 possessio, duobus heredibus relictis decessit. si unus omnem 
 
 144 pecuniam^ solverit, partem familiae herciscundae iudicio serva- 
 bit : nee, si partem solvat, ex empto cum venditore aget, 
 
 3 quoniam ita contractum aes alienum dividi non potuit. Fru- 
 menta quae in herbis erant cum vendidisses, dixisti te, si quid 
 vi aut tempestate factum esset, praestaturum : ea frumenta 
 
 33 nives corruperunt : si immoderatae fuerunt et contra con- 
 suetudinem tempestatis, agi tecum ex empto poterit. 
 
 79. lAVOLENUSlihroquinto ex posteriorihusLaheoms Fundi 
 partem dimidiam ea lege vendidisti, ut emptor alteram partem, 
 quam retinebas, annis decern certa pecunia in annos singulos 
 
 67, 68, 158 conductam habeat. Labeo et Trebatius negant posse ex vendito 
 agi, ut id quod oonvenerit fiat, ego contra puto, si modo ideo 
 villus fundum vendidisti, ut haec tibi conductio praestaretur : 
 nam hoe ipsum pretium fundi videretur, quod eo pacto venditus 
 fuerat : eoque iure utimur. 
 
 80. LABEO libro quinto posteriorum a lavoleno epitomatorum 
 Cum manu sata in venditione fundi excipiuntur, non quae in 
 
 99 perpetuo sata sunt excipi viderentur, sed quae singulis annis 
 seri Solent, ita ut fructus eorum tollatur : nam aHter interpre- 
 
 1 tantibus vites et arbores omnes exceptae videbuntur. Huius 
 rei emptionem posse fieri dixi : ' quae ex meis aedibus in tuas 
 aedes proiecta sunt, ut ea mihi ita habere liceat,' deque ea re ex 
 
 2 empto agi. Silva caedua in quinquennium venierat : quaere- 
 batur, cum glans deoidisset utrius esset. scio Servium respon- 
 disse, primum sequendum esse quod appareret actum esse : 
 quod si in obscuro esset, quaecumque glans ex his arboribus 
 
DIG. XIX. 1. 239 
 
 quae caesae non essent eecidisset, venditoris esse, earn autem, 
 quae in arboribus fuisset eo tempore cum haec caederentur, 
 emptoris. Nemo potest videri earn rem vendidisse, de cuius 3 
 dominio id agitur, ne ad emptorem transeat, sed hoc aut locatio 103 
 est aut aliud genus contractus. 
 
 81. SCAEVOLA libro septimo digestorum Titius cum mutuos 
 acciperet tot aureos sub usuris, dedit pignori sive hypothecae 
 praedia et fideiussorem Lucium, cui promisit intra triennium 
 proximum se eum Kberaturum : quod si id non fecerit die 
 supra scripta et solvent debitum fideiussor creditori, iussit 
 praedia empta esse, quae creditoribus obligaverat. quaero, cum 
 non sit liberatus Lucius fideiussor a Titio, an, si solvent credi- 
 tori, empta haberet supra scripta praedia. respondit, si non ut 
 in causam obUgationis, sed ut empta habeat, sub condicione 
 emptio facta est et contractam esse obligationem. Lucius Titius 1 
 promisit de fundo suo centum milia modiorum frumenti annua 
 praestare praediis Gaii Seii: postea Lucius Titius vendidit 
 fundum additis verbis his : ' quo iure quaque condicione ea 
 praedia Lucii Titii hodie sunt, ita veneunt itaque habebuntur : ' 
 quaero, an emptor Gaio Seio ad praestationem frumenti sit 
 obnoxius. respondit emptorem Gaio Seio secundum ea quae 
 proponerentur obligatum non esse. 
 
 DIG. XIX. 1. 
 
 DE ACTIONIBUS EMPTI VENDITI. 
 
 1. VLPIANUS libro vicmsimo octavo ad Sabinum Si res ven- 
 dita non tradatur, in id quod interest agitur, hoc est quod rem 109 
 habere interest emptoris : hoc autem interdum pretium egre- 
 ditur, si pluris interest, quam res valet vel empta est. Venditor 1 
 si, cum sciret deberi, servitutem celavit, non evadet ex empto 
 actionem, si modo eam rem emptor ignoravit : omnia enim 
 quae contra bonam fidem fiunt veniunt in empti actionem. 58,59,105, 
 sed scire venditorem et celare sic accipimus, non solum si non '°9 
 aifdmonuit, sed et si negavit servitutem istam deberi, cum esset 
 4b eo quaesitum. sed et si proponas eum ita dixisse : ' nulla 
 quidem servitus debetur, verum ne emergat inopinata servitus, 
 
240 DIG. XIX, 1. 
 
 non teneor,' puto eum ex empto teneri, quia sei-vitus debebatur 
 et scisset. sed si id egit, ne cognosceret emptor aliquam 
 servitutem deberi, opinor eum ex empto teneri. et generaliter 
 dixerim, si improbato more versatua sit in celanda servitute, 
 debere eum teneri, non si securitati suae prospeetum voluit. 
 haec ita vera sunt, si emptor ignoravit servitutes, quia non 
 videtur esse celatus qui seit neque certiorari debuit qui non 
 ignoravit. 
 
 72,110 2. PAULUS libro quinto ad Sahinum Si in emptione modus 
 
 1 dictus est et non praestatur, ex empto est actio. Vacua possessio 
 
 emptori tradita non intellegitur, si alius in ea legatorum fideive 
 
 1 01 commissorum sei-vandorum causa in possessione est aut creditores 
 bona possideant. idem dicendum est, si venter in possessione 
 sit : nam et ad hoc pertinet vacui appellatio. 
 
 3. POMPONIUS libro norm ad Sahinum Ratio possessionis, 
 quae a venditore fieri debeat, talis est, ut, si quis earn possessio- 
 
 1 nem iure avocaverit, tradita possessio non intellegatur. Si emptor 
 vacuam possessionem tradi stipulatus sit et ex stipulatu agat, 
 fructus non venient in eam actionem, quia et qui fundum dan 
 stipularetur, vacuam quoque possessionem tradi oportere stipu- 
 lari intellegitur nee tamen fructuum praestatio ea stipulatione 
 continetur, neque rursus plus debet esse in stipulatione. sed 
 
 2 ex empto superesse ad fructuum praestationem. Si iter actum 
 
 102 viam aquae ductum per tuum fundum emero, vacuae possessionis 
 traditio nulla est : itaque cavere debes per te non fieri quo minus 
 
 3 utar. Si per venditorem vini mora fuerit, quo minus traderet, 
 condemnari eum oportet, utro tempore pluris vinum fuit, vel 
 
 109 quo venit vel quo lis in condemnationem deducitur, item quo 
 
 4 loco pluris fuit, vel quo venit vel ubi agatur. Quod si per 
 emptorem mora fuisset, aestimari oportet pretium quod sit cum 
 
 100, 134 agatur, et quo loco minoris sit. mora autem videtur esse, si 
 nulla difficultas venditorem impediat, quo minus traderet, 
 praesertim si omni tempore paratus fuit tradere. item non 
 oportet eius loci pretia spectari, in quo agatur, sed eius, ubi 
 vina tradi oportet : nam quod a Brundisio vinum venit, etsi 
 venditio alibi facta sit, Brundisi tradi oportet. 
 
 4. PAULUS libro quinto ad Sahinum Si servum mihi igno- 
 61 ranti, sciens furem vel noxium esse, vendideris, quamvis duplam 
 
 promiseris, teneris mihi ex empto, quanti mea intererit seisse, 
 
DIG. XIX. 1. 241 
 
 quia ex stipulatu eo nomine agere tecum non possum antequam 
 mihi quid abesset. Si modus agri minor inveniatur, pro numero 1 
 iugerum auetor obligatus est, quia, ubi modus minor invenitur, 
 non potest aestimari bonitas loci qui non exstat. sed non 72 
 solum si modus agri totius minor est, agi cum venditore potest, 
 sed etiam de partibus eius, ut puta si dictum est vineae iugera 
 tot esse vel oliveti et minus inveniatur : ideoque his casibus 
 pro bonitate loci fiet aestimatio. 
 
 5. IDEM libra tertio ad Sabinum Si heres testament© quid 
 vendere damnatus sit et vendiderit, de reliquis, quae per 
 eonsequentias emptionis propria sunt, vel ex empto vel ex 
 testamento agi cum eo poterit. Sed si falso existimans se 1 
 damnatum vendere vendiderit, dicendum est agi cum eo ex 
 empto non posse, quoniam doli mali exceptione actor summoveri 57 
 potest, quemadmodum, si falso existimans se damnatum dare 
 promisisset, agentem doli mali exceptione summoveret. Pom- 
 ponius etiam incerti condicere eum posse ait, ut liberetur. 
 
 6. P0MP0NIU8 libro nono ad Sabinum Tenetur ex empto 72 
 venditor, etiamsi ignoraverit minorem fundi modum esse. Si 1 
 vendidi tibi insulam certa peounia et ut aliam insulam meam 
 reficeres, agam ex vendito, ut reficias : si autem hoc solum, ut 67, 68 
 reficeres eam, convenisset, non intellegitur emptio et venditio 
 facta, ut et Neratius scripsit. Sed si aream tibi vendidi certo 2 
 pretio et tradidi, ita ut insula aedificata partem dimidiam mihi 
 retradas, verum est et ut aedifices agere me posse ex vendito et 
 
 ut aedificatam mihi retradas : quamdiu enini aHquid ex re vendita 
 apud te superesset, ex vendito me habere actionem constat. Si 3 
 locum sepulchri emeris et propius eum locum, antequam 
 mortuus ibi inferatur, aedifioatum a venditore fuerit, poteris ad 
 eum reverti. Si vas aliquod mihi vendideris et dixeris certam 4 
 mensuram capere vel certum pondus habere, ex empto tecum 
 agam, si minus praestes. sed si vas mihi vendideris ita, ut 190, 191, 
 adfirmares integrum, si id integrum non sit, etiam id, quod eo ^94> '95 
 nomine perdiderim, praestabis mihi : si vero non id actum sit, 
 ut integrum praestes, dolum malum dumtaxat praestare te 
 debere. Labeo contra putat et illud solum observandum, ut, 
 nisi in contrarium id actum sit, omnimodo integrum praestari 
 debeat : et est verum. quod et in locatis doliis praestandum 
 Sabinum respondisse Minicius refert. Si tibi iter vendidero, 5 118 
 
 .R 
 
242 DIG. XIX. 1. 
 
 ita demum auctorem me laudare poteris, si tuus fuerit fundus, 
 cui adquirere serYitutem volueris : iniquum est enim me teneri, 
 si propter hoc adquirere servitutem non potueris, quia dominus 
 
 6 vicini fundi non fueris. Sed si fundum tibi vendidero et ei 
 1 10 fundo iter accessurum dixero, omnimodo tenebor itineris 
 
 nomine, quia utriusque rei quasi unus venditor obligatus sum. 
 
 7 Si filius familias rem vendiderit mihi et tradiderit, sic ut pater 
 
 8 familias tenebitur. Si dolo malo aliquid fecit venditor in re 
 vendita, ex empto eo nomine actio emptori competit : nam et 
 dolum malum eo iudicio aestimari oportet, ut id, quod praesta- 
 turum se esse pollicitus sit venditor emptori, praestari oporteat. 
 
 9 Si venditor scions obligatum aut alienum vendidisset et adiectum 
 58, 61, sit 'neve eo nomine quid praestaret,' aestimari oportet dolum 
 
 124, 201 j^alum eius, quem semper abesse oportet in iudicio empti, quod 
 bonae fidei sit. 
 
 7. IDEM libra decimo ad Sdbinum Fundum mibi cum venderes 
 deducto usu fruetu, dixisti eum usum fructum Titii esse, cum is 
 
 69 apud te remansurus esset. si coeperis eum usum fructum 
 vindicare, reveiii adversus te non potero, donee Titius vivat 
 nee in ea causa esse coeperit, ut, etiamsi eius usus fructus esset, 
 amissurus eum fuerit : nam tunc, id est si capite deminutus vel 
 mortuus fuerit Titius, reverti potero ad te venditorem. idemque 
 iuris est, si dicas eum usum fructum Titii esse, cum. sit Sei 
 
 8. PA TIL US libiv quinto ad Sahinum Si tibi liberum praedium 
 tradidero, cum serviens tradere deberem, etiam condictio incerti 
 competit mihi, ut patiaris eam servitutem, quam debuit, imponi. 
 
 1 Quod si servum praedium in traditione fecero, quod liberum 
 
 1 10 tibi tradere debui, tu ex empto habebis actionem remittendae 
 eius servitutis gratia, quam pati non debeas. 
 
 9. POMPONIUS libro vicesimo ad Sabiniim Si is, qui lapides 
 147 ex fundo emerit, tollere eos nolit, ex vendito agi cum eo potest, 
 
 ut eos toUat. 
 
 10. ULPI ANUS lihro guadragesimo sexto ad Sabinum Non est 
 novum, ut duae obligationes in eiusdem persona de eadem re 
 concurrant : cum enim is qui venditorem obligatum habebat ei 
 
 111 qui eundera venditorem obligatum habebat heres exstiterit, 
 constat duas esse actiones in eiusdem persona concurrentes 
 propriam et hereditariam, et debere heredem institutum, si velit 
 
DIG. XIX. 1. 243 
 
 separatim duarum actionum commodo uti, ante aditam heredi- 
 tatem proprium venditorem convenire, deinde adita hereditate 
 hereditarium : quod si prius adierit hereditatem, unam quidem 
 actionem movere potest, sed ita, ut per earn utriusque contractus 
 sentiat commodum. ex contrario quoque si venditor venditor! 
 heres exstiterit, palam est duas evictiones euro, praestare debere. 
 1 1. IDEM libra trigesimo secundo ad edictum Ex empto actione 
 is qui emit utitur. Et in primis sciendum est in hoc iudicio id 1 
 demum deduci, quod praestari convenit : cum enim sit bonae 
 fidei iudicium, nihil magis bonae fidei congruit quam id prae- 98 
 atari, quod inter contrahentes actum est. quod si nihil convenit, 
 tunc ea praestabuntur, quae naturaliter insunt huius iudicii 
 potestate. Et in primis ipsam rem praestare venditorem oportet, 2 
 id est tradere : quae res, si quidem dominus fuit venditor, facit 98, 100, 
 et emptorem dominum, si non fuit, tantum evictionis nomine '°^' ^°^' 
 venditorem obligat, si modo pretium est numeratum aut eo 
 nomine satisfactum. emptor autem nummos venditoris facere 
 cogitur. Eedhibitionem quoque contineri empti iudicio et 3 184, 190, 
 Labeo et Sabinus putant et nos probamus. Animalium quoque 4 '9'. 213 
 venditor cavere debet ea sana praestari, et qui iumenta vendidit 193 
 solet ita promittere ' esse bibere, ut oportet.' Si quis virginem 5 
 se emere putasset, cum mulier venisset, et sciens errare eum 
 venditor passus sit, redhibitionem quidem ex hac causa non 69. i84> 
 esse, verum tamen ex empto competere actionem ad resolvendam 
 emptionem, et pretio restitute mulier reddatur. Is qui vina 6 
 emit arrae nomine certam summam dedit : postea convenerat, 
 ut emptio irrita fieret. lulianus ex empto agi posse ait, ut arra 
 restituatur, utilemque esse actionem ex empto etiam ad 48, 49, 
 distrahendam, inquit, emptionem. ego Ulud quaero : si anulus ^ 4 
 datus sit arrae nomine et secuta emptione pretioque numerato 
 et tradita re anulus non reddatur, qua actione agendum est, 
 utrum condicatur, quasi ob causam datus sit et causa finita sit, 
 an vero ex empto agendum sit. et lulianus diceret ex empto 
 agi posse : certe etiam condici poterit, quia iam sine causa apud 
 venditorem est anulus. Venditorem, etiamsi ignorans vendi- 7 
 derit, fugitivum non esse praestare emptori oportere Neratius 19 
 ait. Idem Neratius, etiamsi alienum servum vendideris, furtis 8 
 noxisque solutum praestare te debere ab omnibus reeeptum ait 19 
 et ex empto actionem esse, ut habere licere emptori caveatur, 
 sed et ut tradatur ei possessio. Idem ait non tradentem quanti 9 
 
 K a 
 
244 DIG. XIX. 1. 
 
 intersit condemnari : satis autem non dantem, quanti plurimum 
 
 10 auctorem periolitari oportet. Idem Neratius ait propter omnia 
 haec satis esse quod plurimum est praestari, id est ut sequentibus 
 
 1 1 aetionibus deducto eo quod praestitimi est lis aestimetur. Idem 
 recto ait, si quid horum non praestetur, cum cetera facta sint, 
 
 12 nullo deducto condemnationem faciendam. Idem libro secundo 
 responsonun ait emptorem. noxali iudicio condemnatum ex 
 
 ii5, 117, empto actione id tantum eonsequi, quanti minitno defungi 
 
 "^ potuit : idemque putat et si ex stipulatu aget : et sive defendat 
 
 noxali iudicio, sive non, quia manifestum fuit noxium servum 
 
 fuisse, nihilo minus vel ex stipulatu vel ex empto agere posse. 
 
 13 Idem Neratius ait venditorem in re tradenda debere praestare 
 emptori, ut in lite de possessione potior sit : sed lulianus libro 
 
 101, 117 quinto decimo digestorum probat nee videri traditum, si superior 
 in possessione emptor futurus non sit : erit igitur ex empto 
 
 14 actio, nisi hoc praestetur. Cassius ait eum, qui ex duplae 
 stipulatione litis aestimationem consecutus est, alianmi rerum. 
 nomine, de quibus in venditionibus eaveri solet, nihil eonsequi 
 posse. lulianus deficiente dupla ex empto agendum putavit. 
 
 15 Denique libro decimo apud Minicium ait, si quis servum ea 
 condicione vendiderit, ut intra trigiata dies duplam promitteret, 
 postea ne quid praestaretur, et emptor hoc fieri intra diem non 
 desideraverit, ita demum non teneri venditorem, si ignorans 
 alienum vendidit : tunc enim in hoc fieri, ut per ipsum et per 
 heredem eius emptorem habere lieeret : qui autem. alienum 
 sciens vendidit, dolo, inquit, non caret et ideo empti iudicio 
 
 16 tenebitur. Sententiam luliani verisstmam esse arbitror ia 
 pignoribus quoque : nam si iure ereditoris vendiderit, deinde 
 haec fueruit evicta, non tenetur nee ad pretium restituendum 
 ex empto actione creditor : hoc enim multis constitutionibus 
 effectum est. dolum plane venditor praestabit, denique etiam 
 repromittit de dolo : sed et si non repromiserit, sciens tamen 
 sibi non obligatam vel non esse eius qui sibi obligavit vendiderit, 
 tenebitur ex empto, quia dolum eum praestare debere ostendi- 
 
 1 7 mus. Si quis rem vendiderit et ei accessurum quid dixerit, 
 omnia quidem, quae diximus in re distracta, in hoc quoque 
 
 iiosequenda sint, ut tamen evietionis nomine non in duplum 
 teneatur, sed in hoc tantum obligetur, ut emptori habere liceat, 
 
 18 et non solum per se, sed per omnes. Qui autem habere licere 
 31,123,124 vendidit, videamus quid debeat praestare. et multuxn interesse 
 
DIG. XIX. 1. 245 
 
 arbitror, uti'um hoc poUiceatur per se venientesque a se personas 
 non jBeri, quo minus habere liceat, an vero per omnes. nam si 
 per se, non videtur id praestare, ne alius evincat : proinde 
 si eviota res erit, sive stipulatio interposita est, ex stipulatu 
 non tenebitur, sive non est interposita, ex empto non tenebitur. 
 sed lulianus libro quinto decimo digestorum scribit, etiamsi 
 aperte venditor pronuntiet per se heredemque suum non 
 fieri, quo minus habere liceat, posse defendi ex empto eum 
 in hoc quidem non teneri, quod emptoris interest, verum tamen 
 ut pretium reddat teneri. ibidem ait idem esse dicendum et 
 si aperte in venditione coniprehendatur nihU evictionis nomine 
 praestatum iri : pretium quidem deberi re evicta, utilitatem 
 non deberi : neque enim bonae fidei contractus hac patitur 
 conventione, ut emptor rem am^itteret et pretium venditor 
 retineret. nisi forte, inquit, sic quis omnes istas supra 
 scriptas conventiones recipiet, quemadmodum recipitur, ut 
 venditor nummos accipiat, quamvis merx ad emptorem non 
 pertineat, veluti cum futurum iactum retis a piscatore emimus 
 aut indaginem plagis positis a venatore vel pantheram ab 
 aucupe : nam etiamsi nihil capit, nihilo minus emptor 
 pretium praestare necesse habebit : sed in supra sciiptis con- 
 ventionibus contra erit dicendum. nisi forte soiens alienum 
 vendit : tunc enim secundum supra a nobis relatam luliani sen- 
 tentiam dicendum est ex empto eum teneri, quia dolo faoit. 
 
 1 2. CELSTJS libro vicesimo septimo digestorum Si iactum retis 
 emero et iactare retem piscator noluit, incertum eius rei 31, 186 
 aestimandum est : si quod extraxit piscium reddere mihi noluit, 
 
 id aestimari debet quod extraxit. 
 
 13. VLPIANUS libro trigesimo secundo ad edidum lulianus 
 libro quinto decimo inter eum, qui sciens quid aut ignorans 
 vendidit, differentiam facit in condemnatione ex empto: ait 190, 191, 
 enim, qui pecus morbosum aut tignum vitiosum vendidit, si ^^^| ^°j' 
 quidem ignorans fecit, id tantum ex empto actione praesta- 213, 314 
 turum, quanto minoris essem empturus, si id ita esse scissem : 
 
 si vero sciens reticuit et emptorem decepit, omnia detrimenta, 
 quae ex ea emptione emptor traxerit, praestaturum ei : sive 
 igitur aedes vitio tigni corruerunt, aedium aestimationem, sive 
 pecora contagione morbosi pecoris perierunt, quod interfuit 
 idonea venisse erit praestandum. Item qui furem vendidit 1 
 aut fugitivum, si quidem sciens, praestare debebit, quanti ^9°' 'W' 
 
246 DIG. XIX. 1. 
 
 emptoris interfuit non decipi : si vero ignorans vendiderit, 
 circa fugitivum quidem tenetur, quanti minoris empturus esset, 
 si eum esse fugitivum soisset, circa furem non tenetur : dif- 
 ferentiae ratio est, quod fugitivuna quidem habere non licet et 
 quasi evictionis nomine tenetur venditor, furem autem habere 
 
 2 possumus. Quod autem diximus ' quanti emptoris interfuit 
 non decipi,' multa continet, et si alios secmn sollicitavit ut 
 
 3 fugerent, vel res quasdam abstulit. Quid tamen si ignoravit 
 quidem furem esse, adseveravit autem bonae frugi et fidum et 
 
 60, 190,191 caro vendidit? videamus, an ex empto teneatur. et putem 
 teneri. atqui ignoravit : sed non debuit facile quae ignorabat 
 adseverare. inter hunc igitur et qui scit^ praemonere debuit 
 furem esse, hie non debuit facilis esse ad temerariam indica- 
 
 4 tionem. Si venditor dolo fecerit, ut rem pluris venderet, puta 
 
 59, 61, 62, de artificio mentitus est aut de peculio, empti eum iudicio 
 7^' 19° teneri, ut praestaret emptori, qusinto pluris servum emisset, si 
 
 5 ita peculiatus esset vel eo artificio instructus. Per contrarium 
 quoque idem lulianus scribit, cum Terentius Victor decessisset 
 relicto herede fratre suo et res quasdam ex hereditate et instru- 
 
 60. 61, 14S menta et mancipia Bellicus quidam subtraxisset, quibus sub- 
 
 tractis facOe, quasi minimo valeret hereditas, ut sibi ea 
 venderetur persuasit : an venditi iudicio teneri possit ? et ait 
 lulianus competere actionem ex vendito in tantum, quanto 
 pluris hereditas valeret, si hae res subtractae non fuissent. 
 
 6 Idem lulianus dolum solere a venditore praestari etiam in 
 huiusmodi specie ostendit : si, cum venditor sciret funduni 
 pluribus municipiis legata debere, in tabula quidem conscrip- 
 
 59 serit uni municipio deberi, verum postea legem consignaverit, 
 si qua tributorum aut vectigalis indictionisve quid nomine aut 
 ad xine collationem praestare oportet, id emptorem dare facere 
 praestareque oportere, ex empto eum teneri, quasi decepisset 
 
 7 emptorem : quae sententia vera est. Sed cum in facto pro- 
 poneretur tutores hoc idem fecisse, qui rem pupillarem vende- 
 bant, quaestionis esse ait, an tutorum dolum pupillus praestare 
 
 60 debeat. et si quidem ipsi tutores vendiderunt, ex empto eos 
 teneri nequaquam dubium est : sed si pupillus auctoribus eis 
 vendidit, in tantum tenetur, in quantum locupletior ex eo factus 
 est, tutoribus in residuum perpetuo condemnandis, quia nee 
 transfertur in pupUlum post pubertatem hoc, quod dolo tutorum 
 
 ' Talia fere exciderxmt : et tacuit non multum interest : nam qui scit 
 
Dia XIX. 1. 247 
 
 factum est. Offerri pretium ab emptore debet, cum ex empto 8 
 agitur, et ideo etsi pretii partem oiferat, nondum est ex empto 97,143,150 
 actio : venditor enim quasi pignus retinere potest earn rem quam 
 vendidit. Unde quaeritur, si pars sit pretii soluta et res tradita 9 
 postea evicta sit, utrum eius rei consequetur pretium integrum 
 ex empto agens an vero quod numeravit? et puto magis id 
 quod numeravit propter doli exceptionem. Si fructibus iam 10 
 maturis ager distractus sit, etiam fructus emptori eedere, nisi 92, 98, 99 
 aliud convenit, exploratum est. Si in locatis ager fuit, pen- 11 
 siones utique ei cedent qui locaverat : idem et in praediis 93, 99 
 urbanis, nisi si quid nominatim eonvenisse proponatur. Sed 12 
 et si quid praeterea rei venditae nocitum est, actio emptori 
 praestanda est, damni forte infecti vel aquae pluviae arcendae 
 vel Aquiliae vel interdioti quod vi aut clam. Item si quid ex 13 
 operis servorum vel vecturis iumentorum vel navium quaesitum 93, 99 
 est, emptori praestabitur, et si quid peculio eorum accessit, non 
 tamen si quid ex re venditoris. Si Titius fundum, in quo 14 
 nonaginta iugera erant, vendiderit et in lege emptionis dictum 
 est in fundo centum esse iugera et antequam modus mani- 
 festetur, decern iugera alluvione adcreverint, placet mihi Neratii 55 
 sententia existimantis, ut, si quidem sciens vendidit, ex empto 
 actio competat adversus eum, quamvis decern iugera adcre- 
 verint, quia dolo fecit nee dolus purgatur : si vero ignorans 
 vendidit, ex empto actionem non competere. Si fundum mihi 15 
 alienum vendideris et hie ex causa lucrativa meus factus sit, 114, 129 
 nihilo minus ex empto mihi adversus te actio compefcit. In his 16 
 autem, quae cum re empta praestari solent, non solum dolum, 
 sed et culpam praestandam arbitror : nam et Celsus libro octavo 99, 107 
 digestorum scripsit, cum convenit, ut venditor praeteritam 
 mercedem exigat et emptori praestet, non solum dolum, sed 
 et culpam eum praestare debere. Idem Celsus libro eodem 17 
 seribit : fundi, quem cum Titio communem habebas, partem 
 tuam vendidisti et antequam traderes, coactus es communi 
 dividundo indicium accipere. si socio fundus sit adiudicatus, 
 quantum ob earn rem a Titio consecutus es, id tantum emptori 
 praestabis. quod si tibi fundus totus adiudicatus est, totum, 
 inquit, eum emptori trades, sed ita, ut ille solvat, quod ob eam 
 rem Titio condemnatus es. sed ob eam quidem partem, quam 
 vendidisti, pro evictione cavere debes, ob alteram autem tantum 
 de dolo malo repromittere : aequum est enim eandem esse con- 
 
248 DIG. XIX. 1. 
 
 dicionem emptoris, quae futura esset, si cum ipso actum esset 
 communi dividundo. sed si certis regionibus fundum inter te 
 et Titium iudex divisit, sine dubio partem, quae adiudicata est, 
 
 18 emptori tradere debes. Si quid servo distracto venditor donavit 
 ante traditionem, hoc quoque restitui debet: hereditates quoque 
 
 94, 99 P^r servum adquisitae et legata omnia, nee distinguendum, 
 cuius respectu ista sint relicta. item quod ex operis servus 
 praestitit venditori, emptori restituendum est, nisi ideo dies 
 traditionis ex pacto prorogatus est, ut ad venditorem operae 
 
 19 pertinerent. Ex vendito actio venditori competit ad ea conse- 
 
 20 quenda, quae ei ab emptore praestari oportet. Veniunt autem 
 in hoc iudicium infra scripta. in primis pretium, quanti res 
 
 142, 146, venit. item usurae pretii post diem traditionis : nam cum re 
 '47 emptor fruatur, aequissimum est eum usuras pretii pendere. 
 
 21 Possessionem autem traditam accipere debemus et si precaria 
 147 sit possessio : hoc enim solum spectare debemus, an habeat 
 
 22 facultatem fructus percipiendi. Praeterea ex vendito agendo 
 consequetur etiam sumptus, qui facti sunt in re distracta, ut 
 puta si quid in aedificia distracta erogatum est : scribit enim 
 
 147 Labeo etTrebatius esse ex vendito hoc nomine actionem, idem 
 et si in aegri servi curationeni impensum est ante traditionem 
 aut si quid in disciplinas, quas verisimile erat etiam emptorem 
 velle impendi. hoc amplius Labeo ait et si quid in funus 
 moi-tui servi impensum sit, ex vendito consequi oportere, si 
 
 23 modo sine culpa venditoris naortem obierit. Item si con- 
 venerit, cum res veniret, ut locuples ab emptore reus detur, 
 
 24 ex vendito agi posse, ut id fiat. Si inter emptorem praediorum 
 et venditorem convenisset, ut, si ea praedia emptor heresve 
 eius pluris vendidisset, eius partem dimidiam venditori prae- 
 staret et heres emptoris pluris ea praedia vendidisset, venditorem 
 ex vendito agendo partem eius, quo pluris vendidisset, con- 
 
 25 secuturum. Si procurator vendiderit et caverit emptori, quae- 
 ritur, an domino vel adversus dominum actio dari debeat. et 
 Papinianus libro tertio responsorum putat cum domino ex 
 empto agi posse utili actione ad exemplum institoriae actionis, 
 si modo rem vendendam mandaAdt : ergo et per contrarium 
 dicendum est utilem ex empto actionem domino competere. 
 
 26 Ibidem Papinianus respondisse se refert, si convenerit, ut ad 
 diem pretio non soluto venditori duplimi praestaretur, in 
 fraudem constitutionum videri adiectum, quod usuram legiti- 
 
DIG. XIX. 1. 249 
 
 mam excedit : diversamque causam commissoriae esse ait, cum 
 ea specie, inquit, non faenus illicitum contrahatur, sed lex 
 contractui non improbata dicatur. Si quis coUudente procura- 27 
 tore meo ab eo emerit, an possit agere ex empto? et puto 6i 
 hactenus, ut aut stetur emptioni aut discedatur. Sed et si quis 28 
 minorem viginti quinque annis oircumvenerit, et huic hactenus 
 dabimus actionem ex empto, ut diximus in superiore casu. Si 29 
 quis a pupillo sine tutoris auctoritate emerit, ex uno latere 12 
 constat contractus : nam qui emit, obligatus est pupillo, pupil- 
 lum sibi non obligat. Si venditor habitationem exceperit, ut 3D 
 inquilino liceat habitare, vel colono ut perfrui liceat ad certum 
 tempus, magis esse Servius putabat ex vendito esse actionem : 99 
 denique Tubero ait, si iste colonus damnum dederit, emptorem 
 ex empto agentem cogere posse venditorem, ut ex locate cum 
 colono experiatur, ut quidquid fuerit consecutus, emptori 
 reddat. Aedibus distractis vel legatis ea esse aedium solemus 31 
 dicere, quae quasi pars aedium vel propter aedes habentur, ut 
 puta putealia, 
 
 14. POMPONIUS libro trigesimo primo ad Quintum Mucium 99 
 (id est quo putevmi operitur), 
 
 1 5. ULPIANUSlibro trigesimo secundo ad edictumlia.es et labra, 
 salientes. fistulae quoque, quae salientibus iunguntur, quamvis 99 
 longe excurrant extra aedificium, aedium sunt : item canales : 
 pisces autem qui sunt in piscina non sunt aedium nee fundi, 
 
 16. POMPONIUS libro trigesimo primo ad Quintum Murium 99 
 non magis quam puUi aut cetera animalia, quae in fundo sunt. 
 
 1 7. ULPIANVS libra trigesimo seeundo ad edictum Fundi nihil 
 
 est, nisi quod terra se tenet : aedium autem multa esse, quae 981 99 
 aedibus adfixa non sunt, ignorari non oportet, ut puta seraa 
 claves claustra : multa etiam defossa esse neque tamen fundi 
 aut villae haberi, ut puta vasa vinaria torcularia, quoniam haec 
 instrimienti magis sunt etiamsi aedilicio cohaerent. Sed et 1 99 
 vinum et fructus perceptos villae non esse constat. Fundo 2 99 
 vendito vel legato sterculinum et stramenta emptoris et lega- 
 tarii sunt, ligna autem venditoris vel heredis, quia non sunt 
 fundi, tametsi ad eam rem comparata sunt, in sterculino 
 autem distinotio Trebatii probanda est, ut, si quidem sterco- 
 randi agri causa comparatum sit, emptorem sequatur, si ven- 
 dendi, venditorem, nisi si aliud actum est : nee interest, in 
 
250 DIG. XIX. li 
 
 99 3 stabulo iaceat an acervus sit. Quae tabulae pictae pro tectorio 
 
 4 includuntur itemque crustae marmoreae aedium sunt. Eeticuli 
 99 circa columnas, plutei circa parietes, item cilicia vela aedium 
 
 5 non sunt. Item quod insulae causa paratum est, si nondum 
 99 perfectum est, quamvis positum in aedificio sit, non tamen 
 
 6 videtur aedium esse. Si ruta et caesa excipiantur in venditione, 
 ea placuit esse ruta, quae eruta sunt, ut harena creta et similia : 
 caesa ea esse, ut arbores caesas et carbones et his similia. 
 Gallus autem Aquilius, cuius Mela refert opinionem, recte ait 
 
 99 frustra in lege venditionis de rutis et caesis contineri, quia, si 
 non specialiter venierunt, ad exhibendum de his agi potest 
 neque enim magis de materia caesa aut de caementis aut de 
 harena cavendum est venditor! quam de ceteris quae sunt pre- 
 
 7 tiosiora. Labeo generaliter scribit ea, quae perpetui usus causa 
 in aedificiis sunt, aedificii esse, quae vero ad praesens, non esse 
 
 90 aedificii : ut puta fistulae temporis quidem causa positae non 
 sunt aedium, verum tamen si perpetuo fuerint positae, aedium 
 
 8 sunt. Castella plumbea, putea, opercula puteorum, epitonia 
 99 fistulis adplumbata (aut quae terra continentur quam.vis non 
 
 9 sint adfixa) aedium esse constat. Item constat sigilla, columnas 
 99 quoque et personas, ex quorum rostris aqua salire solet, villae 
 
 99 1 esse. Ea, quae ex aedificio detracta sunt ut reponantur, aedificii 
 
 1 1 sunt : at quae parata sunt ut imponantur, non sunt aedificii. Pali, 
 
 qui viaeae causa parati sunt, antequam coUocentur, fundi non 
 
 sunt, sed qui exempti sunt hao mente ut collocentur, fundi sunt. 
 
 18. lAVOLUN US libra septimo ex Cassio Granaria, quae ex 
 99 tabulis fieri solent, ita aedium sunt, si stipites eorum in terra de- 
 
 1 fossi sunt : quod si supra terram sunt, rutis et caesis cedunt. Te- 
 gulae, quae nondum aedificiis impositae sunt, quamvis tegendi 
 gratia allatae sunt, in rutis et caesis habentur : aUud iuris est 
 in his, quae detractae sunt ut reponerentur : aedibus enim 
 accedunt. 
 
 1 9. GAIJJS ad edidum praetoris tiiulo de puhUcanis Veteres 
 in emptione venditioneque appellationibus promiscue utebantur. 
 
 20. IDEM libra vicesimo prima ad edidum proiindale Idem 
 est et in locatione et conductione. 
 
 2 1 . PA TJL US libra trigesimo tertia ad edidum Si sterilis ancilla 
 sit, cuius partus venit, vel maior annis quinquaginta, cum id 
 
 1 emptor ignoraverit, ex empto tenetur venditor. Si praedii 
 
DIG. XIX. 1. 251 
 
 venditor non dicat de tribute sciens, tenetur ex empto : quod 60, 106 
 si ignorans non praedixerit, quod forte hereditarium praedium 
 erat, non tenetur. Quamvis supra diximus, cum in corpore 2 
 consentiamus, de qualitate autem dissentiamus, emptionem 
 esse, tamen venditor teneri debet, quanti interest non esse 56, 190 
 deceptum, etsi venditor quoque nesciet : veluti si mensas quasi 
 citreas emat, quae non sunt. Cum per venditorem steterit, quo 3 
 minus rem tradat, omnis utilitas emptoris in aestimationem 
 venit, quae modo circa ipsam rem consistit : neque enim si 
 potuit ex vino puta negotiari et lucrum facere, id aestimandum 92, 109 
 est, non magis quam si triticum emerit et ob earn rem, quod 
 non sit traditum, familia eius fame laboraverit : nam pretium 
 tritici, non servorum fame necatorum consequitur. nee maior 
 fit obligatio, quod tardius agitur, quamvis crescat, si vinum 
 hodie pluris sit, merito, quia sive datum esset, liaberem em.ptor, 
 sive non, quoniam saltem hodie dandum est quod iam olim 
 dari oportuit. Si tibi fundum vendidero, ut eum conductum 4 
 certa summa haberem, ex vendito eo nomine mihi actio est, 67, 68 
 quasi in partem pretii ea res sit. Sed et si ita fundum tibi 5 
 vendidero, ut nuUi alii eum quam mihi venderes, actio eo 26, 176 
 nomine ex vendito est, si alii vendideris. Qui domum vendebat, 6 
 excepit sibi habitationem, donee viveret, aut in singulos annos 
 decern : emptor primo anno maluit decern praestare, secundo 
 anno habitationem praestare. Trebatius ait mutandae voluntatis 99 
 potestatem eum habere singulisque annis alterutrum praestare 
 posse et quamdiu paratus sit alterutrum praestare, petitionem 
 non esse. 
 
 22. lULIANUS libro septimo digestorum Si in qualitate fundi 
 venditor mentitus sit, non in modo eius, tamen tenetur emptori : 
 pone enim dixisse eum quinquaginta iugera esse vineae et quin- 59 
 quaginta prati et in prate plus inveniri, esse tamen omnia 
 centum iugera. 
 
 23. IDEM libro tertio decimo digestorum Si quis servum, quem 
 eiwa. peculio vendiderat, manumiserit, non solum peculii nomine, 
 quod servus habuit tempore quo manumittebatur, sed et eorum, no 
 quae postea adquirit, tenetur et praeterea cavere debet, quidquid 
 
 ex hereditate liberti ad eum pervenerit, restitutu iri. MAECEL- 
 LUSnotat : Ula praestare venditor ex empto debet, quaehaberet 
 emptor, si homo manumissus non esset : non continebuntur 
 igitur, quae, si manumissus non fuit, adquisiturus non esset. 
 
252 DIG. XIX. 1. 
 
 24. lULIANUS libro qumto decimo digestorum Si servus, in 
 quo usus fructus tuus erat, fundum emerit et antequam pecunia 
 numeraretur, capite minutus fueris, quamvis pretium solvens, 
 actionem ex empto non habebis propter talem capitis deminu- 
 tionem, sed indebiti actionem adversus venditorem habebis. 
 ante capitis autem minutionem nihil interest, tu solvas an 
 servus ex eo peculio quod ad te pertinet : nam utroque casu 
 
 1 actionem ex empto habebis. Servum tuum imprudens a fure 
 bona fide emi : is ex peculio quod ad te pertinebat hominem 
 paravit, qui mihi traditus est. posse te eum hominem mihi 
 condicere Sabinus dixit, sed si quid mihi abesset ex negotio 
 quod is gessisset, invicem me tecum acturum de peculio. 
 Cassius veram opinionem Sabini rettulit, in qua ego quoque 
 
 2 sum. Servo vendente hominem fideiussor venditionis omnia 
 praestare debet, in quae obligaretur, si pro libero fideiussisset : 
 nam et in dominum actio sic datur, ut emptor eadem conse- 
 quatur, quae libero vendente consequi debuisset, sed ultra 
 pecuUi taxationem dominus non condemnatur. 
 
 25. IDEM libro qiunquagesimo quarto digestorum Qui pen- 
 dentem vindemiam emit si uvam legere prohibeatur a venditore, 
 
 97 adversus eum petentem pretium exceptione uti poterit ' si ea 
 pecunia, qua de agitur, non pro ea re petitur, quae venit neque 
 tradita est. ' ceterum post traditionem sive lectam uvam calcare 
 sive mustum evehere prohibeatur, ad exhibendum vel iniuiia- 
 nmi agere poterit, quemadmodum si aliam quamlibet rem suam 
 toUere prohibeatur. 
 
 26. ALFJSXUS VARUS libro secundo digestonim Si quis, cum 
 fundum venderet, dolia centum, quae in fundo esse adfirmabat, 
 
 1 10 accessura dixisset, quamvis ibi nullum doUum fuisset, tamen 
 dolia emptori debebit. 
 
 27. PAULUS libro te)iioepitomantinAIfcni Quidquid venditor 
 accessurum diserit, id integrum ae sanum tradi oportet : veluti 
 
 no, 199 si fundo dolia accessura dixisset, non quassa, sed Integra dare 
 debet. 
 
 28. IULIAjS^US libro tertio ad Vrseitim Feroccm Praediamihi 
 vendidisti et convenit, ut aliquid facerem : quod si non fecissem, 
 poenam promisi. respondit : venditor antequam poenam ex 
 stipulatu petat, ex vendito agere potest : si consecutus fuerit, 
 quantum poenae nomine stipulatus esset, agentem ex stipulatu 
 
DIG. XIX. 1. 253 
 
 doli mali exceptio summovebit : si ex stipulatu poenam conse- 
 cutus fueris, ipso iure ex vendito agere non poteris nisi in id, 
 quod pluris eius interfuerit id fieri. 
 
 29. IBEM libro quarto ex Minicio Cui res sub condicione 23 
 legata erat, is earn imprudens ab herede emit : actione ex empto 
 potent consequi emptor pretium, quia non ex causa legati rem 
 habet. 
 
 30. AFSICANUS libro octavo quaestionum Servus, quern de 
 me cum peculio emisti, priusquam tibi traderetur, furtum mihi 
 fecit, quamvis ea res quam subripuit interierit, nihilo minus 
 retentionem eo nomine ex peculio me habiturum ait, id est 
 ipso iure ob id factum minutum esse peculium, eo scilicet, quod 
 debitor meus ex causa condictionis sit factus. nam licet, si iam 
 traditus furtum mihi fecisset, aut omnino condictionem eo 
 nomine de peculio non haberem aut eatenus haberem, quatenus 
 ex re furtiva auctum peculium fuisset, tamen in proposito et 
 retentionem me habiturum et, si omne peculium penes te sit, 
 vel quasi plus debito solverim posse me condicere. secundum 
 quae dicendum : si nummos, quos servus iste mihi subripuerat, 
 tu ignorans furtivos esse quasi peculiares ademeris et consump- 
 seris, condictio eo nomine mihi adversus te competet, quasi res 
 mea ad te sine causa pervenerit. Si sciens alienam rem igno- 1 
 ranti mihi vendideris, etiam priusquam evincatur utihter me 19, 59, 89 
 ex empto acturum putavit in id, quanti mea intersit meam esse j°j '°j ' 
 factam : quamvis enim alioquin verum sit venditorem hactenus 121, 134 
 teneri, ut rem emptori habere liceat, non etiam ut eius faciat, 
 
 quia tamen dolum malum abesse praestare debeat, teneri eum, 
 qui sciens alienam, non suam ignoranti vendidit : id est maxime, 
 si manumissuro vel pignori daturo vendiderit. 
 
 31. NERATIUS libro iertio membrcmanvm Si ea res, quam ex 
 empto praestare debebam, vi mihi adempta fuerit : quamvis 38, 89, 10: 
 eam custodire debuerim, tamen propius est, ut nihil amplius 
 
 quam actiones persequendae eius praestari a me emptori 
 oporteat, quia custodia adversus vim parum proficit. actiones 
 autem eas non solum arbitrio, sed etiam periculo tuo tibi prae- 
 stare debebo, ut omne lucrum ac dispendium te sequatur. Et 1 
 non solum quod ipse per eum adquisii praestare debeo, sed et 
 id, quod emptor iam tunc sibi tradito servo adquisiturus fuisset. 
 Uterque nostrum eandem rem emit a non domino, cum emptio 2 
 
254 DIG. XIX. 1. 
 
 venditioque sine dolo malo fieret, traditaque est i sive ab eodem 
 emimus sive ab alio atque alio, is ex nobis tuendus est, qui prior 
 ius eius adprehendit, hoc est, cui primum tradita est. si alter 
 ex nobis a domino emisset, is omnunodo tuendus est. 
 
 3 2. ULPIANUS liiro undecimo ad edictum Si quis a me oleum 
 quod emisset adhibitis iniquis ponderibus accepisset, ut in mode 
 me falleret, vel emptor ciroumscriptus sit a venditore ponderibus 
 minoribus, Pomponius ait posse dici venditorem sibi dare opor- 
 tere quod plus est petere : quod habet rationem : ergo et emptor 
 ex empto habebit actionem, qua contentus esse possit. 
 
 33. IDEM libro vicesimo tcrtio ad edictum Et si uno pretio 
 plures res emptae sint, de singulis ex empto et vendito agi 
 potest. 
 55 34. IDEM libro decimo octavo ad edictum Si fundo vendito in 
 qualitate iugerum captio est, ex empto erit actio. 
 
 35. IDEM libro septuagesimo ad edictum Si quis fundum 
 emerit, quasi per eum fundum eundi agendi ius non esset, et 
 interdicto de itinere actuque victus sit, ex empto habebit 
 actionem : licet enim stipulatio de evictione non committatur, 
 quia non est de iure servitutis in rem actione pronuntiatutn, 
 tamen dicendum est ex empto actionem competere. 
 
 36. PA TJLUSlibro sepiimo ad Plautium Venditor domus ante- 
 quam eam tradat, damni infecti stipulationem interponere 
 
 90, 107 debet, quia, antequam vacuam possessionem tradat, custodiam 
 et diligentiam praestare debet et pars est custodiae diligentiae- 
 que banc interponere stipulationem : et ideo si id neglexerit, 
 tenebitur emptori. 
 
 37. IDEM libro quarto decimo ad Plautium Sicut aequimi est 
 bonae fidei emptori alterius dolum non nocere, ita non est 
 aequum eidem personae venditoris sui dolum prodesse. 
 
 38. CELSUS libro octavo digestorum Si venditor hominis dixit 
 72 peculium eum habere decem nee quemquam adempturum, et si 
 
 plus habet, totum praestet, nisi hoc actiun est, ut dumtaxat 
 decern praestaret, si minus est, praestet esse decern et talem 
 
 1 servum esse, ut tantum peoulii habeat. Si per emptorem 
 148 steterit, quo minus ei mancipium traderetur, pro cibariis per 
 
 arbitrium indemnitatem posse servari Sextus Aelius, Drusus 
 dixerunt, quorum et mihi iustissima videtur esse sententia. 
 
 2 Firmus a Proculo quaesiit, si de plumbeo castello fistulae sub 
 
DIG. XIX. 1. 255 
 
 terrain missae aquam ducerent in aenum lateribus circum- 
 structum, an hae aediiun essent an ut ruta caesa vincta fixaque 99 
 quae aedium non essent. ille rescripsit referre, quid acti esset. 
 quid ergo si nrhil de ea re neque emptor neque venditor 
 cogitaverunt, ut plerumque in eiusmodi rebus evenisse solet, 
 nonne propius est, ut inserta et inclusa aedificio partem eius 
 esse existimemus ? 
 
 39. MOBESTINUS libra quinto responsorum Quaero, si quis 
 ita fundum vendiderit, ut id venum datum esse videatur, quod 
 intra terminos ipse possedit, sciens tamen aliquam partem 
 certam se non possidere non certioraverit emptorem, an ex 
 empto iudicio teneatur, cum haeo generalis adieotio ad ea, quae 
 specialiter novit qui vendidit nee excepit, pertinere non debeat, 
 
 ne alioquin emptor capiatur, qui fortasse, si hoc cognovisset, vel 59, 215 
 empturus non esset vel minoris empturus esset, si certioratus 
 de loco certo fuisset : cum hoc et apud veteres sit relatum in eius 
 persona, qui sic exceperat : ' servitutes si quae debentur, debe- 
 buntur : ' etenim iuris auctores responderunt, si certus venditor 
 quibusdam personis certas servitutes debere non admonuisset 
 emptorem, ex empto eum teneri debere, quando haec generalis 
 exceptio non ad ea pertinere debeat, quae venditor novit quaeque 
 specialiter excipere et potuit et debuit, sed ad ea, quae ignoravit 
 et de quibus emptorem certiorare nequivit. Herennius Modes- 
 tinus respondit, si quid cireumveniendi emptoris causa venditor 
 in specie de qua quaeritur fecit, ex empto actione conveniii 
 posse. 
 
 40. POMPONIUS libra trigesimo prima ad Quintum Mucium 
 super Quintus Mucins scribit : dominus fundi de praedio arbores 
 stantes vendiderat et pro his rebus pecuniam aecepit et tradere 
 nolebat : emptor quaerebat, quid se facere oporteret, et verebatur, 
 ne hae arbores eius non viderentur factae. POMPONIUS : ar- 
 borum, quae in fundo continentur, non est separatum corpus a 
 fundo et ideo ut dominus suas specialiter arbores vindicare 
 emptor non poterit : sed ex empto habet actionem. 
 
 41. PAPINIANU8 libra tertia responsarum In venditione 
 super annua pensitatione pro aquae ductu infra domum Eomae 
 constitutum nihil commemoratum est. deceptus ob eam rem 60, 106 
 ex empto actionem habebit : itaque, si conveniatur ob pretium 
 
 ex vendito, ratio inprovisi oneris habetui-. 
 
256 DIG. XIX. 1. 
 
 42. PA ULUS libro secundo quaestkmum Si duorum fundorum 
 venditor separatim de modo ouiusque pronuntiaverit et ita 
 utmmque uno pretio tradiderit, et alteri aliquid desit, quamvis 
 in altero exsuperet, forte si dixit unum centum iugera, alteram 
 ducenta habere, non proderit ei, quod in altero ducenta decern 
 inveniuntur, si in altero decem desint. et de his ita apud 
 Labeonem relatum est. sed an exceptio doU mali venditori 
 profutura sit, potest dubitari, utique si exiguus modus silvae 
 desit et plus in vineis habeat, quam repromissum est. an non 
 facit dolo, qui iure perpetuo utitur ? nee enim hie quod ampHus 
 in modo invenitur, quam alioquin dictum est, ad compendium 
 venditoris, sed ad emptoris peitinet : et tunc tenetur venditor, 
 cum minor modus invenitur. videamus tamen, ne nulla querella 
 sit emptoris in eodem fundo, si plus inveniat in vinea quam in 
 prate, cum universus modus constat, similis quaestio esse 
 potest ei, quae in duobus fundis agitata est, et si quis duos 
 statuliberos uno pretio vendat et dicat unum decem dare iussum, 
 qui quindecim dare debebat : nam et hie tenebitur ex empto 
 actione, quamvis emptor a duobus viginti accepturus sit. sed 
 rectius est in omnibus supra scriptis casibus lucrum cum damno 
 compensari et si quid deest emptori sive pro modo sive pro 
 qualitate loci, hoc ei resarciri. 
 too, 124, 43. IDEJI libro quinto quaestionum Titius cum decederet, 
 ^ Seiae Stichum PamphUum Arescusam per fideioommissum 
 reliquit eiusque fidei commisit, ut omnes ad Ubertatem post 
 annum perduceret. cum legataria fideicommissum ad se per- 
 tinere noluisset nee tamen heredem a sua petitione liberasset, 
 heres eadem mancipia Sempronio vendidit nuUa com memo- 
 ratione fideicommissae libertatis facta : emptor cum pluribus 
 annis mancipia supra seripta sibi servissent, Arescusam manu- 
 misit, et cum ceteri quoque servi cognita voluntate defuucti 
 fideicommissam libertatem petissent et heredem ad praetorem 
 perduxissent, iussu praetoris ab herede sunt nianumissi. 
 Arescusa quoque nolle se emptorem patronum habere respon- 
 derat. cum emptor pretium a venditore empti iudicio Ares- 
 cusae quoque nomine repeteret, leotum est responsum Domitii 
 Ulpiani, quo continebatur Arescusam pertinere ad rescriptum 
 sacrarum constitutionum, si nollet emptorem patronum habere : 
 emptorem tamen nihil posse post manuniissionem a venditore 
 oonsequi. ego cum meminissem et lulianum in ea sententia 
 
DIG. XIX. 1. 257 
 
 esse, ut existimaret post manumissionem quoque empti actionem 
 durare, quaero, quae sententia vera est. illud etiam in eadem 
 cognitione nomine emptoris desiderabatur, ut sumptus, quos in 
 unum ex his quem erudierat fecerat, ei restituerentur. idem 
 quaero, Arescusa, quae recusavit emptorem patronum habere, 
 cuius sit liberta constituta ? an possit vel legatariam quae non 
 liberavit vel heredem patronum habere? nam ceteri duo ab 
 herede manumissi sunt, respondi : semper probavi luliani 
 sententiam putantis manumissione non amittitur eo modo. de 
 sumptibus vero, quos in erudiendum hominem emptor fecit, 
 videndum est : nam empti indicium ad eam quoque speciem 
 sufficere existimo : non enitn pretium continet tantum, sed 
 omne quod interest emptoris servum non evinci. plane si in 
 tantum pretium excedisse proponas, ut non sit cogitatum a 
 venditore de tanta summa (veluti si ponas agitatorem postea 
 factum vel pantomimum evictum esse eum, qui minimo veniit 
 pretio), iniquum videtur in magnam quantitatem obKgari 
 venditorem, 
 
 44. AFRICANTJ8 libra octavo quaestionum (cum et forte 126 
 idem mediocrium facultatium sit : et non ultra duplum peri- 
 culum subire eum oportet) 
 
 45. PAULUS libro quinto quaestionum id que et lub'anum 
 agitasse Africanus refert : quod iustum est ; sicut minuitur 125 
 praestatio, si servus deterior apud emptorem effectus sit, cum 
 evincitur. lUud expeditius videbatur, si mihi aHenam aream 1 
 vendideris et in eam ego aedificavero atque ita eam dominus 
 evincit : nam quia possim petentem dominum, nisi impensam 
 aedificiorum solvat, doli mali exceptione summovere, magis est, 127 
 ut ea res ad periculum venditoris non pertineat. quod et in 
 servo dicendum est, si in servitutem, non in libertatem evin- 
 ceretur, ut dominus mercedes et impensas praestare debeat. 
 quod si emptor non possideat aedificium vel servum, ex empto 
 habebit actionem, in omnibus tamen his casibus, si scions quis 
 alienum vendiderit, omnimodo teneri debet. Superest tertia 2 
 deliberatio, cuius debet esse liberta Arescusa, quae recusat 
 emptorem. et non sine rations dicetur eius debere eflSci 100 
 libertam, a quo vendita est, id est heredis, quia et ipse ex 
 empto actione tenetur : sed hoc ita, si non Arescusa elegerit 
 emptoris patronatum : tune etenim et illius remanet liberta et 
 
 S 
 
258 DIG. XIX. 1. 
 
 ille ex empto actionem non habet, quia nihil eius interest, cum 
 earn libertam habet. 
 
 46. IBEM libro vicensimo quarto quaestionum Si quis aUenam 
 rem vendiderit et medio tempore heres domino rei exstiterit, 
 cogetur implere venditionem. 
 
 109 47. IDEM libro sexto responsormn Lucius Titius accepta 
 pecunia ad materias vendendas sub poena certa, ita ut, si non 
 integras repraestaverit intra statuta tempera, poena conveniatur, 
 partim datis materiis decessit : cum igitur testator in poenam 
 commiserit neque heres eius reUquam materiam exhibuerit, an 
 et in poenam et in usuras conveniii possit, praesertim cum 
 emptor mutuatus pecuniam usuras gra-vissimas expendit? 
 Paulus respondit ex contractu, de quo quaeritur, etiam heredem 
 venditoris in poenam conveniri posse, in aetione quoque ex 
 empto officio iudicis post moram intercedentem usurarum pretii 
 rationem haberi oportere. 
 
 106 48. SCAEYOLA libro secimdo responsorum Titius heres Sem- 
 pronii fundum Septicio vendidit ita : ' fundus Sempronianus, 
 quidquid Sempronii iuris fuit, erit tibi emptus tot nummis ' 
 vacuamque possessionem tradidit neque fines eius demonstravit : 
 quaeritur, an empti iudicio cogendus sit ostendere ex instrumentis 
 hereditariis, quid iuris defunctus habuerit et fines ostendere. 
 respondi id ex ea scriptura praestandum, quod sensisse int«lle- 
 guntur : quod si non appareat, debere venditorem et instrumenta 
 fundi et fines ostendere : hoc etenim contractui bonae fidei con- 
 sonat. 
 69 49. HERMOGENIANUS libro secundo iuris epitomanun 
 Qui per coUusionem imaginarium colonum circumveniendi emp- 
 toris causa subposuit, ex empto tenetur nee defenditur, si, quo 
 facilius excogita,ta fraus occultetur, colonum et quinquennii 
 1 pensiones in fidem suam recipiat. Pretii, sorte licet post moram 
 
 146 soluta, usurae peti non possunt, cum hae non sint in obHgatione, 
 sed officio iudicis praestentur. 
 
 .151 50. LABEO libro quarto posteriorum a lavoleno (pitomatomm 
 Bona fides non patitur, ut, cum emptor alicuius legis beneficio 
 pecuniam rei venditae debere desisset antequam res ei tradatur, 
 venditor tradere compeUetur et re sua careret. possessione 
 autem tradita futurum est, ut rem venditor aeque amitteret, 
 utpote cum petenti earn rem petitor ei neque vendidisset neque 
 tradidisset. 
 
DIG. XIX. 1. 259 
 
 51. IDEM libro quinto posteriorum alavohno epitomatorum Si 171 
 et per empiorem et venditorem mora fuisset, quo minus vinum 
 praeberetur et traderetur, perinde esse ait, quasi si per emptorem 
 solum stetisset : non enim potest videri mora per venditorem 
 emptori facta esse ipso moram faeiente emptore. Quod si 1 
 fundum emisti ea lege, uti des peeuniam kalendis luliis, et si 
 ipsis calendis per venditorem esset factum, quo minus pecunia 
 
 ei solveretur, deinde per te staret quo minus solveres, uti posse 
 adversus te lege sua venditorem dixi, quia in vendendo hoc 
 ageretur, ut, quandoque per emptorem factum sit, quo minus 
 peeuniam solvat, legis poenam patiatur. hoc ita verum puto, 
 nisi si quid in ea re venditor dolo fecit. 
 
 52. SCAEYOLA libro septimo digestorum Creditor fundum 106 
 sibi obligatum, cuius chirographa tributorum a debitore retro 
 solutonmi apud se deposita habebat, vendidit Maevio ea lege, 
 ut, si quid tributorum nomine debitum esset, emptor solveret : 
 idem fundus ob causam eorum tributorum, quae iam soluta 
 erant, a conductore saltus, in quo idem fundus est, venit eumque 
 idem Maevius emit et pretium solvit : quaesitum est, an empti 
 iudicio vel aHqua actione emptor a venditore consequi possit, ut 
 solutionum supra scriptarum chii'ographa ei dentur. respondit 
 posse emptorem empti iudicio consequi, ut instrumenta de 
 quibus quaereretur exhibeantur. Praedium aestimatum in 1 
 dotem a patre filiae suae nomine datum obligatum creditor! loi, 134 
 deprehenditur : quaesitum est, an filius, qui hereditatem patris 
 retinet, cum ab ea se filia abstinuisset dote contenta, actione ex 
 empto teneatur, ut a creditore lueret et marito liberum praestaret. 
 respondit teneri. Inter venditorem et emptorem militiae ita 2 
 convenit, ut salarium, quod debeatur ab ilia persona, emptori 
 cederet : quaesitum est, emptor militiae quam quantitatem a 
 
 quo exigere debet et quid ex eiusmodi pacto venditor emptori 
 praestare debeat. respondit venditorem actiones extraordinarias 
 eo nomine quas haberet praestare debere. Ante domum mari 3 
 iunctam molibus iactis ripam constituit et uti ab eo possessa 99 
 domus fuit, Gaio Seio vendidit : quaero, an ripa, quae ab auctore 
 domui coniuncta erat, ad emptorem quoque iure emptionis 
 pertineat. respondit eodem iure fore venditam domum, qup 
 fuisset priusquam veniret. 
 
 53. LABEO libro prima pifhanon Si mercedem insulae acces- 99 
 suram esse emptori dictum est, quanti insula locata est, tantum 
 
 s a 
 
26o DIG. XIX, 1. 
 
 emptori praestetur. PAULUS : immo si insulam totam uno 
 nomine locaveris et aniplioris conductor locaverit et in vendenda 
 insula mercedem emptori cessuram esse dixeris, id accedet, quod 
 
 1 tibi totius insulae conductor debebit. Si eum fundum vendidisti, 
 99 in quo sepulcrum habuisti, nee nominatim tibi sepulcrum 
 
 excepisti, parum habes eo nomine cautum. PA TJLTJS : minime, 
 
 2 si modo in sepulcrum iter publicum transit. Si habitatoribus 
 habitatio lege venditionis recepta est, omnibus in ea habitantibus 
 praeter dominvim recte recepta habitatio est. PAULUS : immo 
 si cui in ea insula, quam vendideris, gratis liabitationem dederis 
 et sic receperis : 'habitatoribus aut quam quisque diem conductum 
 habet,' parum caveris (nominatim enim de his recipi oportuit) 
 itaque eos habitatores emptor insulae habitatione impune 
 prohibebit. 
 
 107 54. IDEM lihro sccundo pithanon Si servus quem vendideras 
 iussu tuo aUquid fecit et ex eo crus fregit, ita demum ea res tuo 
 perieulo non est, si id imperasti, quod solebat ante venditionem 
 facere, et si id imperasti, quod etiam non vendito servo im- 
 peraturus eras. PAULUS: minime: nam si periculosam rem 
 ante venditionem facere solitus est, culpa tua id factum esse 
 videbitur : puta enim eum fuisse servum, qui per eatadromum 
 deseendere aut in cloacam demitti solitus esset. idem iuris erit, 
 si eam rem imperare solitus fueris, quam prudens et diligens pater 
 familias imperaturus ei servo non fuerit. quid si hoc exceptum 
 fuerit? tamen potest ei servo novam rem imperare, quam 
 imperaturus non fuisset, si non venisset : veluti si ei imperasti, 
 ut ad emptorem iret, qui peregre esset : nam certe ea res tuo 
 perieulo esse non debet, itaque tota ea res ad dolum malum 
 1 dumtaxat et culpam venditoris dirigenda est. Si dolia octoginta 
 
 no accedere fundo, quae infossa essent, dictum erit, et plura erunt 
 quam ad eum numerum, dabit emptori ex omnibus quae vult, 
 dum Integra det : si sola octoginta sunt, qualiacumque emptorem 
 sequentur nee pro non integris quicquam ei venditor praestabit. 
 55. POMPONIUS libro decimo epistulannn Si servus, qui 
 emeretur vel promitteretur, in hostium potestate sit, Oetavenus 
 magis putabat valere emptionem et stipulationem, quia inter 
 ementem et vendentem esset eommercimn : potius enim 
 difficultatem in praestando eo inesse, quam in natura, etiamsi 
 officio iudicis sustinenda esset eius praestatio, donee praestari 
 possit. 
 
26l 
 
 EEFEEENCES TO OTHER TITLES IN THE 
 DIGEST AND CODE. 
 
 [The references are to the preceding pages.l 
 
 DIG. XVIII. 2. 
 DE IN DIEM ADDICTIONE. 
 
 1- i6o. 6. pr. 163-165. 13. I. 162. 
 
 2. pr. 157, 160, 170. - I. 164. 14. pr. 162, 163. 
 
 - I- 164- 7. 163. — I. 162, i6j. 
 
 3. 165. 8. 163. — 3. 14, 162. 
 
 4. pr. 162, 9. 165, 166. — 5. 161. 
 
 - 2. 165. 10. 166. 15. I. 161, 162. 
 
 - 3. i6o, 165. 11. pr. 167. 16. 164, 165. 
 
 - 4. 164, 165. — I. 166. 17. 166. 
 
 - 6. 161. 12. 166. 18. 162. 
 
 5. 14, 161. 13. pr. 166. 19. 161. 
 
 DIG. XVIII. 3. 
 DE LEGE COMMISSOEIA. 
 
 1. 170. 4. 2. 173. 6. pr. 172. 
 
 2. 170-172. - 3. 170. - 2. 171. 
 
 3. 172. - 4. 170, 171. 7. 171. 
 
 4. pr. 170, 172. 5. 170, 171. 8. 170, 171. 
 
 - I. 172. 
 
 DIG. XVIII. 4- 
 DE HEEEDITATE VEL ACTIONE VENDITA. 
 
 1. 
 
 22. 
 
 4. 
 
 37- 
 
 14. 
 
 I. 33- 
 
 2. 
 
 I- 34, 35. 
 
 5. 
 
 37- 
 
 15. 
 
 33- 
 
 - 
 
 4- 34- 
 
 6. 
 
 37- 
 
 16. 
 
 33- 
 
 - 
 
 10. 35- 
 
 7. 
 
 22, 33- 
 
 17. 
 
 37- 
 
 - 
 
 II. 35- 
 
 8. 
 
 33, 38. 
 
 20. 
 
 pi'- 35- 
 
 - 
 
 15- 35- 
 
 9. 
 
 33- 
 
 21. 
 
 34. 
 
 - 
 
 16. 35- 
 
 10. 
 
 33, 131- 
 
 23. 
 
 pr- 37. 
 
 - 
 
 18. 35. 
 
 11. 
 
 33, 131- 
 
 24. 
 
 35- 
 
 3. 
 
 34. 
 
 13. 
 
 33- 
 
 25. 
 
 34. 
 
262 EEFEEENCES 
 
 DIG. XVIII. 5- 
 
 DE EESCINDENDA VENDITIONE ET QUANDO LICET 
 AB EMPTIONE DISCEDEEE. 
 
 2. i8o. 
 
 5. I. 179. 
 
 7. pr. 79, 158, 180. 
 
 3. i8o. 
 
 - 2. 76. 
 
 — I. 12. 
 
 4. i8o. 
 
 6. 80, 174, 179- 
 
 10. I. 171. 
 
 DIG. XVIII. 6. 
 
 DE PEEICULO ET COMMODO EEI VENDITAE. 
 
 1. pr. 76, 77, 81- 4. I. 72, 76, 77, 82, 12. 77, 90. 
 
 83, 90. 83. 14. 89, 99. 
 
 - I. 77, 87. - 2. 8i. 15. pr. 108, 148. 
 
 - 2. 81, 99. 5. 86. — I. 30, 77, 82, 83. 
 
 - 3. 88, 148. 6. 190. 16. 77. 
 
 - 4. 88. 7. pr. 94. 17. 154. 
 
 2. pr. 88. 8. pr. 40, 76, 77- 18. 87, 148. 
 
 - I- 87, 107, 108. 79, 163. 19. I. 19, 128, 133. 
 
 3. 107. - I. 79. 20. 147. 
 
 4. pr. 77, 81, 83, - 2. 17. 
 
 107, 
 
 DIG. XXI. I. 
 
 DE AEDILICIO EDICTO ET EEDHIBITIONE ET 
 QUANTI MINOEIS. 
 
 1. pr. 194. 4. 4. 196, 212. 14. 7. 215. 
 
 - I. 193, 202, 212. 6. pr. 196. — 9. 215. 
 
 - 2. 201. - 2. 215. — 10. 198. 
 
 - 6. 198. 7. 215. 15. 210. 
 
 - 7- 195- 10. 2. 195. 16. 197. 
 
 - 8. 195, 196. — 5. 215, 17. pr. 196. 
 
 - 9. 196, 212. 11. 215. — 14. 196. 
 
 - 10. 196, 212. 12. I. 195, 215. — 17. 197. 
 
 - II. 196. — 2. 215. 18. pr.-i. 212. 
 4 pr. 196, 212. — 4. 215. 19. pr.-i. 191. 
 
 - 1-3. 196. 14. 3. 215. — 2. 191, 212. 
 
TO OTHEE TITLES. 263 
 
 19 
 
 • 3- 191- 
 
 31 
 
 . 5- 209, 
 
 
 39. 200, 
 
 
 
 4- 201, 
 
 — 
 
 6. 206, 
 
 209. 
 
 40. pr. 200. 
 
 
 5. 5, 195. 
 
 — 
 
 7. 209. 
 
 
 43. pr. 196, 197, 
 
 
 6. 209. 
 
 — 
 
 9- 203, 
 
 209. 
 
 — 1-3. 196. 
 
 21, 
 
 . pr. 201, 202. 
 
 — 
 
 10. 208, 
 
 , 209. 
 
 — 5- 202. 
 
 7 — 
 
 I. 203. 
 
 — 
 
 11-15. : 
 
 203, 206. 
 
 . — 8. 203, 206. 
 
 — 
 
 2-3, 207. 
 
 — 
 
 16. 211. 
 
 
 — 9- 214. 
 
 22. 
 
 207. 
 
 — 
 
 17. 202. 
 
 
 44. I. 192, 209. 
 
 23. 
 
 pr. 203. 
 
 — 
 
 18. 201. 
 
 
 — 2. 206. 
 
 — 
 
 I. 202. 
 
 — 
 
 19. 202. 
 
 
 45. 208. 
 
 — 
 
 2-3. 196. 
 
 — 
 
 20. 192, 
 
 193- 
 
 46. 203. 
 
 — 
 
 4. 207. 
 
 — 
 
 2 2. 83, 
 
 174- 
 
 47. pr.-i. 206. 
 
 — 
 
 7. 202. 
 
 — 
 
 23. 83. 
 
 
 48. pr. 206. 
 
 — 
 
 8. 205. 
 
 — 
 
 24. 176. 
 
 
 — I. 210. 
 
 — 
 
 9. 202. 
 
 32. 
 
 199. 
 
 
 2. 2 11. 
 
 25. 
 
 pr.-2. 203. 
 
 33. 
 
 pr. 199, 
 
 200. 
 
 — 3-4- 197- 
 
 — 
 
 3. 202, 203. 
 
 — 
 
 I. 199. 
 
 
 — 8. 214. 
 
 — 
 
 4-8. 203. 
 
 34. 
 
 pr.-i. i; 
 
 33, 200. 
 
 49. 194. 
 
 — 
 
 10. 207. 
 
 35. 
 
 200. 
 
 
 51. I. 198, 199, 
 
 26. 
 
 207. 
 
 36. 
 
 204. 
 
 
 54. 197. 
 
 27. 
 
 204. 
 
 38. 
 
 pr. 194, 199, 
 
 55. 209. 
 
 28. 
 
 193- 
 
 
 209. 
 
 
 67. pr. 208. 
 
 29. 
 
 pr. 208, 
 
 — 
 
 3. 206. 
 
 
 — I. 207. 
 
 — 
 
 I. 205. 
 
 — 
 
 5-.194- 
 
 
 58. pr.-i. 205. 
 
 — 
 
 2. 161, 204. 
 
 — 
 
 8. 197. 
 
 
 69. pr.-i. 201. 
 
 — 
 
 3. 204. 
 
 — 
 
 9. 195, I 
 
 97- . 
 
 60. 22. 
 
 30. 
 
 pr. 207. 
 
 — 
 
 II. 199. 
 
 
 61. 210, 211. 
 
 — 
 
 I. 204. 
 
 — 
 
 12. 200. 
 
 
 63. 194. 
 
 31. 
 
 pr. 204, 205. 
 
 — 
 
 13. 211. 
 
 
 64. pr. 200, 204. 
 
 — 
 
 2-4. 202. 
 
 — 
 
 14. 200. 
 
 
 — I. 200. 
 
 DIG. XXI. 2. 
 DE EVICTIONIBUS ET DUPLAE STIPULATIONE 
 
 2. 112. 9. 114, 129. 15. I. 131. 
 
 4. pr. 118. 11. pr. 115. 16. pr. 127. 
 
 5. 132. 12. 44. — I, 114, 133. 
 
 6. 122. 13. 130. 21. pr. 89, 90, 115. 
 8. Ill, 124, 131. 14. 130. 131. 
 
264 EEFEEENCES 
 
 21. I. 89, 115. 45. 55. 62. I. 120. 
 
 — 2. 121. 47. 128. — 2. 117. 
 
 22. I. 113. 48. 105. 63. pr. 121. 
 
 24. 100, 114. 49. 117. — I- 116-118, 131. 
 
 27.116. 51. pr. 115, 118, 131. — 2.116,131. 
 
 28. ii6, 118. — 3. 128. 64. pr. 129. 
 
 29. pr. 115, 128. 53. pr. 130. — r. 130- 
 
 — I. 116. — I. 118, 121. — 2. 118, 130. 
 ^ 2. 120. 54. I. 132. — 3- ISO- 
 SI. 193. 55. pr. 112, 116, 66. pr. 116, 131. 
 32. pr. 193, 122, 131. — I. 117- 
 
 — I. 211. — I. ir6, 121. — 2. 122. 
 
 34. 1-2. 117. 56. I. 116. 67. 128. 
 
 35. 117. — 4. 116, 119. 69. 3. 132. 
 37. pr. Ill, 112, 122. — 5-6. 121. — 5- i°5- 
 
 — I. 112, 123, 193. — 7. 119. — 6. 55. 
 39. pr. 117. 57. pr. 114. 70. 124, 125. 
 
 — I. 119. — I. 129. 72. 128. 
 
 — 2. 113. 59. 120. 74. 3. 38. 
 
 — 3. 54. 60. 112, 124. 75. 105, 191. 
 41. I. 114, 129. 61. 113. 76. 116. 
 
 — 2. 129. 
 
 COD. IV. 38. 
 DE COIifTEAHENDA EMPTIONE. 
 
 3. 74. 
 
 8. 173. 
 
 12. pr. 173 
 
 4. 22. 
 
 9- 74, 173- 
 
 13. 69. 
 
 5. 10. 
 
 10. 22. 
 
 15. pr. 70. 
 
 COD. IV. 39. 
 DE HEEEDITATE VEL ACTIONE VENDITA 
 
 1. 36. 5. 36. 9. 36. 
 
 2. 36. 6. 34. 
 
TO OTHEE TITLES. 265 
 
 COD. IV. 44- 
 DE EESCINDENDA VENDItlONE. 
 
 1. 64. 
 
 8. 64, 181, 183. 
 
 12. 128. 
 
 2. 75, 181, 182. 
 
 9. 67. 
 
 14. 173 
 
 5. pr. 61. 
 
 10. 61. 
 
 
 COD. IV. 48. 
 DE PEEICULO ET COMMODO EEI VENDITAE. 
 
 1. 92. 2. I. 76. 5. 76, 78. 
 
 2. pr. 84, 86. 4. 90, 107. 6. 90. 
 
 COD. IV. 49- 
 DE ACTIONIBUS EMPTI ET VENDITI. 
 
 2. 2. 92. 
 
 7. 143- 
 
 13. 92, 146, 147 
 
 3. 42. 
 
 9. 106. 
 
 14. 193. 
 
 4. 109. 
 
 10. 109. 
 
 16. 92, 148. 
 
 5. 146. 
 
 12. 109. 
 
 17. 115. 
 
 COD. IV. 58. 
 
 DE AEDILICIIS ACTIONIBUS. 
 
 1. 205. 3. pr. 197. 5. 207. 
 
 2. 210, 211. 4. pr. 194. 
 
 COD. VIII. 44- 
 DE EVICTIONIBUS. 
 
 1. 132. 8. 97, 118. 21. I. 118. 
 
 3.89,102,112,133, 9. 127. 23. 124. 
 
 134. 14. 118. 24. pr. 128, 133. 
 
 4. 195. 1!5. 131. 25. 112. 
 
 5. loi, 128, 134. 16. 127. 26. 89, 115. 
 
 6. 112. 17. 128. 27. 123, 132. 
 
 7. 118, 119. 20. pr. 121. 30. 132. 
 
INDEX 
 
 Acceptance of goods under the 
 English Statute of Frauds, may- 
 be constructive, 138. 
 
 Actio quanti minoris, 194, 210- 
 ai2. 
 
 redhibitoria, 194, 201 sq. : its 
 
 effects, 231 : duties of the pur- 
 chaser under, 202, 203 : of the 
 v«ndor, 203-206 : points in which 
 the law treats the two parties 
 differently, 207 sq. -. limitation of 
 the action, 209. 
 
 Addictio in diem, 160 : what is a 
 ' better offer ' ?, 160 : effects of ad- 
 dictio, where the condition is 
 suspensive, 163, and resolutive, 
 164 : when the condition is ful- 
 filled, 165, 166 : effect of a second 
 addictio, 166 : are the principles 
 of addictio applied to sales by 
 auction ? , 167. 
 
 Aedilician Edict, 1 1 1 : on pacta dis- 
 plicentiae, 175 : as to quality of 
 goods sold, 192-195. 
 
 Agents, effect of contracts made 
 by, 48, 198, 199. 
 
 Ager vectigalis, 6. 
 
 Arra, 43, 48, 172. 
 
 Assignment by sale of rights of 
 action, 36-38. 
 
 Auction, sales by, 167-169. 
 
 Auotor, auctorem laudare, 118. 
 
 Aversio, sale by, 72, 83, 84. 
 
 Capacity to enter into a contract of 
 sale, 9, 10. 
 
 Commodum rei, belongs to the pur- 
 chaser, 92 : fruits, 92 : fructus 
 civiles, 93 : accessions, 94. 
 
 Conditions suspensive and resolu- 
 tive, 156, 157 : conditions dis- 
 tinguished from terms in the 
 contract, 157 : which of the par- 
 ties is affected by the condition, 
 158 : question whether a condi- 
 
 tion could be annexed by subse- 
 quent agreement to a sale origi- 
 nally unconditional, 158 : condi- 
 tions affirmative and negative, 
 159 : see Addictio in diem ; Lex 
 commissoria ; Emptio ad gus- 
 tum ; Pactum displicentiae. 
 
 Conduct as evidence of assent to a 
 contract, 44. 
 
 Correspondence, contracts con- 
 cluded by, 45-47. 
 
 Delivery of goods sold : see Ven- 
 dor's duties. 
 
 Discharge, modes of, 178 sq. 
 
 Dolus, see Eraud. 
 
 Droit de R6m6r6, 177. 
 
 Duress : what it includes, 63 : its 
 effects, 64 : it has a wider opera- 
 tion than fraud, 64. 
 
 Emphyteusis, 6, 176. 
 
 Emptio ad gustum, 83, 174. 
 
 per aversionem, 72, 83, 84. 
 
 perfeota, 77. 
 
 spei, 30, 32. 
 
 English Law, fundamental con- 
 trasts with Roman in the matter 
 of sale, 3 : whether a contract is 
 sale, or for work and labour, 7,8: 
 sales of pensions and public 
 offices, 20 : of noxious things, 21 : 
 of things which have ceased to 
 exist, 21, 22 : purchase of pro- 
 perty already belonging to the 
 purchaser, 24 : sale of goods 
 not belonging to the vendor, 27 : 
 appropriation of goods to the con- 
 tract, 29 : sale of things not yet 
 in existence, 32 : as to the giving 
 of assent to the contract by con- 
 duct, 44 : contracts by correspon- 
 dence, 46 : revocation of offers, 
 46 : earnest, . 48 : as to mistake, 
 52 : destruction of goods before 
 
268 
 
 INDEX. 
 
 delivery without vendor's fault, 
 53 : mistake of price, 56 : mis- 
 take as to the other party, 57 : 
 the price must be in money, 66 : 
 doctrine of ' reasonable price,' 
 69 : agreement that the price 
 shall be fixed by a third person, 
 71 : expressions such as 'about,' 
 ' more or less,' in describing 
 the quantity of the thing sold, 
 73 : effect of purchaser's marking 
 the goods, 81 : question at whose 
 risk the property is, 91 : as to 
 commodum rei, 95 : performance 
 by each party a concurrent con- 
 dition of performance by the 
 other, 96 : vendor's duty to de- 
 liver the goods, 99 : destruction 
 of the goods while in the ven- 
 dor's possession, 107: delay on 
 the purchaser's part in accepting 
 delivery, 108 : effect of the con- 
 tract in transferring the property, 
 135-137, 145, 146 : origin of the 
 English rule on the subject, 137 ; 
 vendor's implied warranty of 
 Title, 139-141 : question whether 
 payment by a third person dis- 
 charges the purchaser, 144 : 
 pvu-chaser's duty to fetch the 
 goods away, 147 : vendor's right 
 of re-sale, 148, and lien for un- 
 paid purchase money, 149, 150 ; 
 doctrine of stoppage in transitu, 
 152, 153 : sales by auction, 168 : 
 legality of puffers at auctions, 168: 
 puffing of one's own goods, 191 : 
 sales * on trial,' 'on approval,' 
 ' sale or return,' 174, 175 : sales 
 by description, 190 : innocent 
 misrepresentation not forming 
 part of the contract, 190, 191 : 
 implied warranty of quality on a 
 sale of goods, 205, 210, 216-219. 
 Eviction, vendor bound to compen- 
 sate purchaser for, no sq. : his- 
 torical origin of the liability, in; 
 what is an eviction, 112-115 : 
 how it can take place, 113 : the 
 flaw in the purchaser's title must 
 have existed when the contract 
 was made, 115 : vendor not li- 
 able if eviction is due to the pur- 
 chaser's own fault, 116 : eviction 
 by third person proving rights 
 less than ownership, 117 : pur- 
 chaser must notify vendor that 
 his title is disputed, see Litis de- 
 nuntiatio : vendor's duty on re- 
 
 ceiving such notice, isi, 122 : 
 stipulatio duplae, 122 : pactum 
 de evictione non praestanda, 
 123 ; measure of the vendor's 
 liability, 124 sq. : question of its 
 limitation, 125. 126 : increase in 
 the value of the property by the 
 purchaser's outlay, 126, 127 : pur- 
 chaser entitled to withhold pur- 
 chase money, if unpaid, when he 
 hears of the adverse claim, 128 : 
 effect of purchaser's acquiring a 
 new title before eviction, 129 : 
 partial eviction, where the part 
 for which the purchaser is evicted 
 is ideal, 129, or specific, 130 : 
 summary of cases in which the 
 vendor is not liable, 131, 132 : 
 subsidiary remedies of a pur- 
 chaser threatened with eviction. 
 
 133, 134- 
 Exceptio non adimpleti contrac- 
 tus, 97. 
 
 Praud, 57 sq., 189 : what it in- 
 cludes : wilful misrepresentation, 
 58 : active concealment, 59 : 
 reckless ignorance as to truth or 
 falsehood of statements made, 59 : 
 innocent non-disclosure, 60 : ef- 
 fects of these circumstances, 61 : 
 reciprocal fraud, 62 ; fraud prac- 
 tised by third party outside the 
 contract, 62 : sometimes remedi- 
 able by Aedilieian actions, 212. 
 
 Preemen, sale of, 20. 
 
 French Law^, on the contract of ex- 
 change, 4, 5 : sales between hus- 
 band and wife, 10 : sales of things 
 extra commercium, 19, and public 
 offices, 20 : of things which have 
 ceased to exist, 22 : of things 
 which do not belong to the ven- 
 dor, 26 : agreement that the con- 
 tract shall be put into writing. 
 41, 43 : as to risk, 76 : effect of 
 the contract in transferring pro- 
 perty, 137, 138: question whether 
 payment by a third person dis- 
 charges the purchaser, 144 : ven- 
 dor's right of rescission if the 
 price is not paid, 148 : as to 
 lex commissoria, 169 : droit de 
 i'6m6re, 177 : vendor's right to 
 rescind on account of inadequacy 
 of price, 182, 183: limitation of 
 action for rescission on account of 
 redhibitory defects, 210 : amend- 
 
INDEX, 
 
 269 
 
 ment of the law on the subject 
 in 1884, 215, 216. 
 
 Genus, sale of, 28. 
 
 In diem addiotio, see Addiotio. 
 
 Inheritances, sale of, 22 : its ef- 
 fects between vendor and pur- 
 chaser, 33-35 : between the pur- 
 chaser and third persons, 36. 
 
 Ijaesio enormis, or inadequacy of 
 price, rescission for, 180 sq. . 
 courses open to the vendor, 183 : 
 cases in which he cannot rescind, 
 186, 187 : effect of vendor's know- 
 ledge that he is selling at an 
 undervalue, 187 : can a sale by 
 auction be rescinded? , 188. 
 
 Lex commissoria, 169 sq. : is never 
 presumed, 173 : the condition 
 always resolutive, 170 ; condi- 
 tions of its operation, 1 70 : does 
 a lex commissoria imply credit 
 given?, 170: effect of piu-ehase 
 money not being paid by the day 
 fixed, 171, 172 : within what time 
 the vendor must rescind, 173. 
 
 Litis denuntiatio, 117 sq. : why a 
 necessary condition of the pur- 
 chaser's right to recover on evic- 
 tion, 118 : to whom notice must 
 be given, 119: time of giving 
 notice, 120 : cases in which it is 
 unnecessary, 121. 
 
 Mensura, sale by, 84. 
 
 Metus : see Duress. 
 
 Mistake, its effect on a contract of 
 sale, 50 sq. : relating to the na- 
 ture of the transaction, 52 : to 
 the identity of the subject-mat- 
 ter of the contract, 52 : to its ex- 
 istence or its legal character, 53 : 
 to its quantity, 54 : to its mate- 
 rial, qualities or properties, 55 : 
 mistake as to the price, 56 : mis- 
 take of motive, 56 : mistake as to 
 the identity of the other party, 57. 
 
 Pacta arralia, 42. 
 
 Pactum de retroemendo, 177. 
 
 de retrovendendo, 176. 
 
 displicentiae, 80, 175. 
 
 reaervatae hypotheoae, 15^. 
 
 reservati dominii, 154. 
 
 Performance of the contract of sale, 
 must be concurrent, 96 : place 
 and time of performance, 100. 
 
 Periculum rei : meaning of the 
 phrase, 77 : it is with the pur- 
 
 chaser, 76, as soon as the sale is 
 'perfeeta,' 77 : when it is ' imper- 
 fecta ' : because the price is not 
 yet determined, 78, or the sale is 
 subject to a suspensive condition, 
 78, or the purchaser has reserved 
 the right of testing or examining 
 the goods, 79 : various ways in 
 which this may be done, 80 : in 
 the mode of a suspensive condi- 
 tion, 80 : of a resolutive condition, 
 82 : of ii pactum displicentiae, 
 82 : sale imperfect because the 
 goods are not yet specifically 
 ascertained, such as goods to be 
 weighed, measured, or counted, 
 83, 84 ; meaning of these terms, 
 86 : prevention of weighing &c. by 
 the purchaser's fault, 87 : rule as 
 to risk in sales of things in genere 
 and in the alternative, 88, and of 
 res alienae, 89 : in sales of the 
 same thing to two different 
 persons, 89 : exceptions from the 
 general rule as to risk, 90 : 
 theories as to its rationale, 90 : 
 anomalous rule in pacta displi- 
 centiae, 176. 
 
 Poison, sale of, 21. 
 
 Preemption, provisionfor, infavour 
 of the vendor, 176. 
 
 Price, mistake as to, 56 : it must 
 consist in money, 66, at any rate 
 in part, 67 : must be fixed by 
 agreement between the parties, 
 68 : no doctrine in the civil law 
 of a ' reasonable price,' 69 : where 
 the price is left to be fixed by an 
 arbitrator orexpert, 70 : uncertain 
 price admitting of immediate 
 ascertainment, 71 : variation of 
 the price, 72 : fixing of the price 
 where a number of things are 
 bought together, 72 : the price 
 must be intended as a bond fide 
 equivalent for the thing sold, 73 : 
 fairness or adequacy of the price, 
 74j 7Si see Laesio enormis : 
 price must be paid before the 
 property will pass, 144. 
 
 Property in the thing sold : does 
 not pass by the contract, but only 
 by delivery, no, and then only 
 if the price is paid, or security 
 or credit given, 144 : question 
 whether delivery implies credit, 
 
 145- 
 Puffers at auctions, 168 : pufSng 
 one's own goods, 190. 
 
270 
 
 INDEX. 
 
 Pupilli, effect of contract of sale 
 entered into by, without auctori- 
 tas, 11-15. 
 
 Purchaser's duties : to pay the 
 price, 142, and make it the ven- 
 dor's property, 142, 143 : who 
 may pay the vendor, 143, and to 
 whom payment may be made, 
 144 : joint-purchasers, 144 : to 
 pay interest on unpaid purchase- 
 money from the date of delivery, 
 146, 147 ; to take delivery of the 
 property purchased, 147 : effect 
 of his delay or refusal, 148 : to 
 pay the vendor's charges, 147. 
 
 Bedhibitio, see Actio redhibitoria. 
 
 Redhibitory defects, what are, 195 : 
 in slaves, 196, and animals, 197 : 
 the defect must have existed 
 when the contract was made, 
 and be unknown to the purchaser, 
 197, and invisible, 198 : law 
 where the goods are bought by an 
 agent, 198, 199: where the defect 
 is in an accessory, 198 : in one 
 of several things bought together 
 for one price, 198, or in a part of 
 an uuiversitas, 200. 
 
 Bes alienae, sale of, 17-19. 
 
 — communes, 16. 
 
 — furtivae, sale of, 20. 
 
 — sua, purchase of, 22 : when 
 valid, 23. 
 
 Bevocation of proposal or of ac- 
 ceptance, 46, 47. 
 Bight of action, sale of, 36. 
 Bisk, see Periculum. 
 
 Sale, defined, i : is consensual, 1, 
 and synallagmatic, 2 : its relation 
 to exchange, 3-5, and to hiring 
 and letting, 6-8 : what can and 
 cannot be bought and sold, 16 : 
 sale of sei-vitudes, 17 : of res 
 alienae, 17 : of res extra com- 
 mercinm, 19 : of freemen, 20 : of 
 res furtivae, 20 : of things w^hose 
 alienation is forbidden by law, 
 20 : of things which have ceased 
 to exist, 21 : of free services, 24 ; 
 of coins, 24 : limitations on the 
 right of sale imposed by testament 
 or contract, 25 : sale of genus, 
 28 : of things to be procured, &c., 
 by the vendor, 29 : emptio spei, 
 30, and rei speratae, 31 : how the 
 contract is concluded, 39, 44 ; 
 Justinian's enactment as to writ- 
 
 ing, 40-43 : when concluded "by 
 correspondence, 45 : compulsory 
 sales, 65 : at whose risk is the 
 thing sold, see Perieulum : ques- 
 tion whether the purchaser is en- 
 titled to the rent of land, &c., sold 
 while subject to a lease, 93 : con- 
 ditional sales, 156 sq. : sales by 
 auction, 167-169 : modes in which 
 the contract is discharged, I^8 sq.: 
 . mutual waiver, 1 79 : partial dis- 
 charge by subsequent variation 
 of terms, 180 : rescission by ven- 
 dor for inadequacy of price, see 
 Laesio enormis : rescission by 
 purchaser for undisclosed defects, 
 see 'Warranty of quality. 
 
 Scotch Law, as to sales of res 
 alienae, 27; conclusion of the 
 contract, 39 ; fixing of the price, 
 69 : at whose risk the property is, 
 92 : necessity of concurrent per- 
 formance, 97 : effect of the con- 
 tract in transferring property, 
 135 : vendor's liability to com- 
 pensate the purchaser on eviction, 
 139 : who may pay the vendor, 
 144: property usually passes by 
 delivery even though the price is 
 not paid, 145 : actio quanti 
 minoris, 210, 211: implied 
 warranty of quality in goods 
 sold, 216. 
 
 Servitudes, sale of, 17. 
 
 Stipulatio duplae, 112, 122. 
 
 Stoppage in transitu, the civil law 
 equivalent, 151-155. 
 
 Treasury, alienation by the, 112: 
 its obligations to refund purchase 
 money on eviction, 129. 
 
 Vendor's duties : to deliver posses- 
 sion, 98 : what appurtenances 
 pass with the thing sold, 98 : 
 what constitutes delivery, 99- 
 102, no: vendor not bound to 
 give a title as 0"wner, 102 : reason 
 of this rule, 103, 104 : question 
 of his liability if the property is 
 found to be subject to undisclosed 
 servitudes, 105, or other charges, 
 106 ; his duty to point out the 
 boundaries of the property to the 
 purchaser, 106 : delay in delivery 
 by the vendor, 109 ; his duty to 
 compensate the purchaser on 
 eviction, see Eviction : to show 
 diligence in the custody of the 
 
INDEX. 
 
 271 
 
 thing sold pending delivery, 
 106-108, even though not yet at 
 the purchaser's risk, 87 : to assign 
 rights of action to the purchaser, 
 89, 108 : to point out to him 
 redhibitory defects, 200. 
 Vendor's lien for unpaid purchase 
 money, the civil law equivalent, 
 149-151- 
 
 ■Warranty of quality, express, 190 : 
 implied, in every sale : the pur- 
 chaser's right of rescission for 
 undisclosed defects, 188 sg.; the 
 old civil law on the subject, 189- 
 
 191 ; independent stipulations as 
 to quality, 192; the Aedilician 
 Edict, 192 stjr. : its remedies ex- 
 tended to all sales by construction, 
 194 : see Redhibitory defects : the 
 purchaser's remedy by exceptio, 
 201 : by actio redhibitoria, 201 : by 
 actio quanti minoris, 210; 
 guarantees demandable by either 
 party, 206, 207 : effect of the 
 Aedilician actions upon those of 
 the civil law, 212-214: cases in 
 which they will not lie, 214. 
 "Writing, agreement to redvice the 
 contract to, 40-43. 
 
 THE END.