THE DIGEST OR PANDECTS. BOOK XVIII.

TITLE I. CONCERNING THE CONTRACT OF PURCHASE AND AGREEMENTS BETWEEN PURCHASER AND VENDOR, AND WHAT THINGS CANNOT BECOME THE OBJECTS OF THE SAME.

1. Paulus, On the Edict, Book XXXIII.

The origin of purchase and sale is derived from exchanges, for formerly money was not known, and there was no name for merchandise or the price of anything, but every one, in accordance with the requirements of the time and circumstances exchanged articles which were useless to him for other things which he needed; for it often happens that what one has a superabundance of, another lacks. But, for the reason that it did not always or readily happen that when you had what I wanted, or, on the other hand that I had what you were willing to take, a substance was selected whose public and perpetual value, by its uniformity as a medium of exchange, overcame the difficulties arising from barter, and this substance, having been coined by public authority, represented use and ownership, not so much on account of the material itself as by its value, and both articles were no longer designated merchandise, but one of them was called the price of the other.

(1) But while it may be doubted whether a true sale can be made to-day without the employment of coin, as, for instance, if I gave a toga and received a tunic instead; Sabinus and Cassius think that, in this case, there is a veritable purchase and sale, but Nerva and Proculus are of the opinion that this is an exchange, and not a purchase.

Sabinus gives Homer as an example, who relates that the army of the Greeks purchased wine with copper, iron, and slaves, as follows: "The long haired Greeks here purchased wine, some of them with copper, others with glittering iron, others with hides, others again with cattle, and still others with slaves."

These verses, however, seem to indicate an exchange and not a purchase, like the following: "Jupiter, the son of Saturn, obscured the faculties of Glaucus until he changed arms with Diomedes, the son of Tydeus." In support of the opinion of Sabinus, the following can be quoted with greater effect, that is, where the same poet says, "He purchased with his possessions."

The opinion of Nerva and Proculus is, however, the better one, for it is one thing to sell, and another to purchase; one thing to be a purchaser, and another a vendor; just as the price is one thing, and the merchandise another; but in an exchange it cannot be ascertained which is the purchaser and which is the vendor.

(2) Purchase is derived from the Law of Nations, and therefore it is accomplished by consent, and can be contracted between parties who are absent, by a messenger, as well as by letters.

2. Ulpianus, On Sabinus, Book I.

A purchase cannot be contracted between father and son, except where it has reference to castrense peculium.

(1) No sale can take place without a price. It is not, however, necessary for the purchase-money to be actually paid, but an agreement perfects the sale without having been reduced to writing.

3. The Same, On Sabinus, Book XXVIII.

Where an article is sold with the understanding that if it does not please the purchaser it shall not be considered to have been bought, it is settled that it is not sold under a condition, but that the purchase may be annulled conditionally.

4. Pomponius, On Sabinus, Book IX.

A purchase is understood to take place where the object of it is a freeman, or a sacred or religious place, which is not susceptible of sale, if it is bought by a party who is ignorant of the fact:

5. Paulus, On Sabinus, Book V.

Because a freeman is not easily distinguished from a slave.

6. Pomponius, On Sabinus, Book IX.

Celsus, the son, says that you cannot purchase a man whom you know to be free, nor any other property if you know that it is not subject to alienation; as, for instance, sacred and religious places, or such as are not the object of commerce, but are public property, which, while they do not absolutely belong to the people, are used for public purposes, as, for instance, the Campus Martius.

(1) Where a tract of land has been sold on three annual payments, with the understanding: "That if the money is not paid at the times indicated, the sale of the land shall be void, and if the purchaser should, in the meantime, cultivate said land and harvest the crops from the same, they shall be returned if the sale is annulled, and the purchaser must make good to the vendor the amount of the price which is lacking, if he should fail to sell the property afterwards to someone else;" if the money is not paid at the stated times, it is established that the vendor will be entitled to an action of sale on this ground.

We should not consider it confusing that where a purchase has been annulled, an action of sale can take place, for in the case of both purchase and sale consideration must rather be paid to the intention of the parties than to the language employed; and, according to what has been said with reference to the intention, it is evident that the understanding merely was that the vendor should not be bound to the purchaser if the money was not paid at the appointed time, and not that the mutual obligations of both purchaser and vendor should be released.

(2) A condition established at the beginning of a contract can afterwards be changed by a different agreement; just as both parties can absolutely rescind a sale, where the acts which were to be performed by both of them have not yet been executed.

7. Ulpianus, On Sabinus, Book XXVIII.

Where the sale of a slave was made in the following terms, namely: "After he has rendered his accounts, according to the will of his master," it is conditional. Conditional sales are only concluded after the conditions have been complied with. In the condition of sale above-mentioned, does the master himself form his judgment according to his own will, or, in fact, should this be considered to have reference, in general terms, to the judgment of a good citizen? For if we understand the will of the master to be meant, the sale is void; just as if anyone made a sale under the condition, "If he should be willing," or where a party promises a stipulator, "I will pay ten aurei if I wish to," for it ought not to depend on the will of the debtor whether he is bound or not.

It was therefore held by the ancient authorities that this clause rather had reference to the judgment of a good citizen, than to that of the owner of the slave. Hence, if the latter could have accepted the accounts of the slave, but did not do so or, if he did accept them, and pretends that he did not, the condition of the sale is fulfilled, and the vendor can be sued in an action on sale.

(1) A purchase made in the following terms: "I will buy this of you at the same price you paid for it, or I will give the amount which I have in my chest," is valid. For the price is not uncertain, as the amount paid at the sale can readily be ascertained, as more doubt exists as to the sum for which the article was purchased, than there does with reference to the property itself.

(2) Where anyone makes a purchase in the following terms: "I will purchase your land for a hundred aurei, and as much more as I can sell it for," the sale is valid, and is at once concluded: for the price, a hundred aurei is certain, that is, this price, however, will be increased if the purchaser should sell the land for a larger sum.

8. Pomponius, On Sabinus, Book IX.

Neither a purchase nor a sale can be held to take place without property which can be sold; nevertheless, crops, and the yield of cattle can properly be made the object of purchase; and when the births have taken place, as the transaction is complete, the sale is understood to be concluded. If, however, the vendor contrived that the crops should not be raised, or the cattle not be born, an action on purchase will lie.

(1) A sale is, however, sometimes understood to be contracted without property being the object of the same, as, for instance, where a purchase is made dependent upon chance; which occurs where fish or birds which are yet to be caught, or money to be thrown to the populace, is bought.

A purchase is also contracted even if nothing happens, because it relates to the expectation. Where the purchase has reference to money thrown to the populace, and the purchaser is deprived by eviction, of what he had secured, no obligation on the ground of purchase will be incurred; for the reason that this is understood to have been the intention of the parties.

9. Ulpianus, On Sabinus, Book XXVIII.

It is clear that the consent of both parties is necessary in all sales and purchases. But if they differ either as to the price, or as to something else connected with the sale, it will be incomplete. Therefore, if I thought that I was purchasing the Cornelian Field, and you thought that you were selling me the Sempronian Field, for the reason that we disagree as to the object of the transaction, the sale will be null and void.

The same rule applies where I was under the impression that you had sold me Stichus, and you believed that you had sold me Pamphilus, who was absent; for when there is a disagreement with reference to the object, it is apparent that the sale is of no effect.

(1) If we disagree with reference to the name, but there is no dispute as to the object, the transaction of purchase and sale is undoubtedly valid; for a mistake in the name is of no consequence, when the property itself is agreed upon.

(2) Hence, the question arises, where no mistake is made as to the object itself, but there is one as to the substance of which it is composed; as, for instance, if vinegar is sold for wine, copper for gold, or lead for silver or something else which resembles silver, whether there is a purchase and sale.

Marcellus says, in the Sixth Book of the Digest, that, in this case, there is a purchase and sale, because the object was agreed upon, although there was an error with reference to the matter of which it was composed. I am of the same opinion, so far as the wine and vinegar are concerned; for, as they are very nearly the same thing, that is to say, the same substance, provided the wine becomes sour, but if it did not become sour but was so in the beginning, that is, if it contained vinegar, it will be held that one thing has been sold for another. In the other instances, however, I think the sale was null, whenever a mistake was made with reference to the substance of which the articles were composed.

10. Paulus, On Sabinus, Book V.

The case would be different where a party had actually sold gold, and the purchaser thought that it was a metal of less value, for then the sale will be valid.

11. Ulpianus, On Sabinus, Book XXVIII.

Otherwise, what can we say where a blind man was the purchaser, or where a mistake was made in the substance, or where he was unskilled in detecting the nature of substances; shall we hold that the parties have agreed as to the property? And how can he agree to it, who has not seen it?

(1) If I think I am buying a virgin slave, when she, in fact, is a woman, the purchase will be valid; for there is no mistake as to her sex. If, however, I should sell you a woman, and you thought that you were buying a boy, for the reason that there is a mistake in the sex, the purchase and sale will be void.

12. Pomponius, On Quintus Mucius, Book XXXI.

In all the questions above stated, the personality of the purchasers and vendors should be considered, and not that of those through whom the right of action on contract is acquired; for if my slave or my son who is under my control, makes a purchase in his own name, in my presence, the inquiry is not what my opinion is, but what the party who made the contract thinks.

13. The Same, On Sabinus, Book IX.

If you sell a slave, knowing that he has the habit of running away, either to one of my slaves, or to a party whom I have directed to purchase him, and the latter is ignorant of the fact, and I am not; it is certain that you will not be liable to an action on purchase.

14. Ulpianus, On Sabinus, Book XXVIII.

But what shall we say where both parties are mistaken as to both the substance and the nature of the object of the sale; as, for instance, where I think I am selling gold, and you think that you are purchasing gold, when, in fact, the metal is brass; or where, for example, two co-heirs sell a bracelet which is said to be of gold, at a high price to another co-heir, and it is discovered that it is, for the most part, copper? It is held that this is a sale, because the bracelet contained some gold, for if the article is gilt, even though I think it to be gold, the sale will be valid, but where copper is sold for gold the sale will not be valid.

15. Paulus, On Sabinus, Book V.

Even though the parties may agree upon the article which is the object of the sale, still, if, in accordance with the course of nature, it ceases to exist before the sale is concluded, the purchase will be void.

(1) A purchaser can take advantage of his ignorance, provided it is not that of an extremely careless man.

(2) If you sell me my own property, and I am ignorant of the fact, and you deliver it to another by my direction, Pomponius does not think that my ownership passes, since it was not intended that mine should pass to the other party, but that yours should do so. Therefore, the same rule applies where I intend to give some property of mine to another, and you deliver it to him under my direction.

16. Pomponius, On Sabinus, Book IX.

The purchase of my own property is not valid, whether I made it knowingly or not, but if I buy it while unaware of the fact, I can recover what I paid, because no obligation arose.

(1) It is no impediment to the sale, however, that only the usufruct of the property in question has been enjoyed by the purchaser.

17. Paulus, On the Edict, Book XXXIII.

It is, nevertheless, the duty of the judge, in a case of this kind, to reduce the price.

18. Pomponius, On Sabinus, Book IX.

Where the property purchased is jointly owned by the buyer and some one else, it should be said that the price must be diminished in proportion, and that the purchase will be valid with respect to a part of the property, and void with reference to the remainder. Where a slave, by the order of his master, in showing the boundaries of a field which has been sold, either by mistake or through fraud, includes more land than is embraced in the tract, it must be understood that he pointed out the boundary-lines where his master intended he should do so.

Alfenus states the same opinion where possession is delivered by a slave.

19. The Same, On Quintus Mucius, Book XLI.

What I have sold does not become the property of the purchaser, unless the price has been paid to me, or security has been furnished for payment, or unless we rely upon the good faith of the purchaser without any security.

20. The Same, On Sabinus, Book IX.

Sabinus gave it as his opinion that, if we wish anything to be made for us; as, for instance, a statue, a vase, or a garment, with the understanding that we shall give nothing but money for it; it is held that this is a true sale, and that it cannot be considered a hiring, if the material is not provided by the party for whom the article is to be made.

The case is different where I furnish the ground upon which you are to build a house; since, in this instance, what constitutes the substance of the structure is provided by me.

21. Paulus, On Sabinus, Book V.

Labeo says that the ambiguity of an agreement should rather prejudice the vendor who mentioned the terms, than the purchaser; because the former could have stated them more clearly before anything had been done.

22. Ulpianus, On Sabinus, Book XXVIII.

It is not superfluous to insert the following sentence in a contract of sale, namely: "If the property is, in any respect, sacred or religious, it will not be included," as this is only applicable to certain tracts of land of limited extent; for if the entire tract is religious, sacred, or public, the purchase will be void.

23. Paulus, On Sabinus, Book V.

The purchaser can revoke what he has paid on the ground of its not having been due.

24. Ulpianus, On Sabinus, Book XXVIII.

An action on purchase will lie in the case of small portions of a tract, as above stated; because, while the place may not be expressly sacred or religious, still, it is included with the greater part of what is bought, as an accessory.

25. The Same, On Sabinus, Book XXXIV.

If the sale is made in the following terms: "Either this or that property," the purchase will apply to whichever property the vendor may select.

(1) The person who sells the property is not required to transfer it to the purchaser, as he who makes a promise of land to a stipulator is compelled to do.¹

¹ An agreement for the sale of an article was generally considered as an inchoate delivery of the same. — ED.

26. Pomponius, On Sabinus, Book XVII.

If I, knowingly, purchase anything from a person whose property is forbidden to be sold, or from one to whom time has been granted to decide whether or not he will accept an estate, in such terms that he has no authority to diminish the assets of the estate; I will not become the owner of said property.

The case will be different, however, if I purchase property from a debtor knowing that his creditor was being defrauded.

27. Paulus, On Sabinus, Book VIII.

He who buys property from anyone whomsoever, thinking that it belongs to him, buys it in good faith; but he who buys anything, from a ward, without the authority of his guardian, or where he is instigated by an impostor, whom he knows is not his guardian, will not be considered a bona-fide purchaser; and this opinion was also held by Sabinus.

28. Ulpianus, On Sabinus, Book XLI.

There is no doubt whatever that anyone can sell property belonging to another, for there is a sale and purchase in this case, but the purchaser can be deprived of the property by legal process.

29. The Same, On Sabinus, Book XLIII.

When a slave is sold, his peculium is not sold with him, and therefore he is not held to be sold with his peculium, whether this has not been reserved, or whether it has been specifically stated that the sale did not include the peculium. Hence, if anything forming part of the peculium has been stolen by the slave, it can be recovered by an action, just like any other stolen property; provided the said property has come into the hands of the purchaser.

30. The Same, On the Edict, Book XXXII.

I think that the vendor is, nevertheless, entitled to an action for production, as well as to one on sale.

31. Pomponius, On Sabinus, Book XXII.

If any accessions have subsequently been made to the peculium, they must be returned to the vendor; as, for instance, the offspring of a female slave, and anything which has been obtained through the labor of a sub-slave.

32. Ulpianus, On the Edict, Book XLIV.

Where anyone sells shops used for banking purposes, or others which are built on public land, he does not sell the ground, but only the right; for as these are public shops, the use of them alone belongs to private individuals.

33. Pomponius, On Sabinus, Book XXXIII.

Where the following clause was inserted in a contract of sale: "The water-courses and gutters shall remain as they now are," and it is not added what water-courses or gutters are meant; the intention of the parties must, first of all, be considered. If this is not apparent, the construction will then be adopted which is prejudicial to the vendor, for the language is ambiguous.

34. Paulus, On the Edict, Book XXXIII.

If, in a sale of a tract of land, it is stated that: "The slave Stichus is included," and it cannot be ascertained which one is intended, where there are several slaves of that name and the purchaser had one in mind and the vendor another; it is established that the sale of the land will, nevertheless, be valid.

Labeo, however, says that that Stichus should be delivered whom the vendor had in mind, and it does not make much difference what the value of the slave was, whether he was worth more or less than the property in which he was included, for we sometimes purchase property because of its accessories, for example, where a house is purchased on account of the marbles, statues, and paintings which it contains.

(1) A sale can legally be made of all the property which anyone has either in his possession, or which he may subsequently acquire; but there can be no sale of that which either the Law of Nature or of Nations, or the customs of the State, have removed from commerce.

(2) We cannot knowingly purchase a free man, nor can a purchase or stipulation based on the assumption that he may become a slave be admitted; although we have stated that property which is not yet in existence can be purchased; for it is not right to anticipate such a contingency.

(3) Moreover, if the purchaser and the vendor both know that the property sold has been stolen, no obligation will be contracted on either side. If the purchaser alone is aware of the fact, the vendor will not be liable; still, he cannot recover anything on the ground of the sale, unless he voluntarily furnishes what he agreed to do. Where, however, the vendor was aware that the property had been stolen, but the purchaser was ignorant of the fact, an obligation is contracted on both sides; and this also was stated by Pomponius.

(4) The purchase of one's own property is valid, only where the purchaser intended from the beginning to obtain possession of it from the vendor, and could obtain it by no other means.

(5) It is one thing to taste, and another to measure anything which is offered for sale; for the taste is an advantage, by giving the buyer his own opportunity to reject it; but the measure only enables him to ascertain the amount of the purchase, and not whether the article is sold for too large or too small a sum.

(6) If a purchase is made in the following terms: "Either Stichus or Pamphilus is purchased by me," the vendor has the right to deliver whichever one he pleases, as is the case in stipulations; but if one of them should die, the survivor must be delivered, and hence the risk of the first slave attaches to the vendor, and that of the second to the purchaser. But if both of them should die, the price will still be due, for the one who survives the other is always at the risk of the purchaser. The same must be said if the purchaser had the right to select which one he wished to have; provided it was only left to him which one he would purchase, and not whether he would make any purchase at all.

(7) A guardian, cannot buy the property of a ward. The same rule extends to similar cases, that is, to those of curators, agents, and persons who transact the business of others.

35. Gaius, On the Provincial Edict, Book X.

Because earnest is often given where purchases are made, it does not follow that where this is not done the agreement is void; but only that it can be more easily proved that the price was agreed upon.

(1) It is settled that a transaction is imperfect when the vendor says to a party who wishes to buy: "You can purchase this for whatever price you wish to give, or for whatever you think just, or for whatever you consider the article to be worth."

(2) Certain authorities hold that a contract cannot be made for the purchase of deadly poison, because neither a partnership nor a mandate has any force in a case where criminality is involved. This opinion can, indeed, very properly be held with reference to substances which cannot be rendered useful to us, even with the addition of something else. Concerning substances, however, which, after having been mixed with others, lose their harmful nature to such an extent that antidotes and other healthful drugs can be made of them, a different opinion must be given.

(3) If anyone should direct a friend of his, who was about to take a journey, to look for his fugitive slave, and if he found him, to sell him; he cannot be said to have acted in violation of the Decree of the Senate, because he did not sell him, nor can his friend, if he sold him when he was present. A purchaser, also, if he buys a slave who is present, is understood to have engaged in a legal transaction.

(4) If property which is purchased is lost by theft, it must first be considered what had been agreed upon between the parties with reference to its safe-keeping. If no agreement appears to have been entered into, the same care in its custody should be required of the vendor as a good head of a household would exercise with regard to his own property. If he used such care, and the property was nevertheless, lost, he will be secure, for he can assign his right of action to recover it, as well as his right of personal action to the purchaser. Wherefore, we must consider the legal position of him who sells property belonging to another, since he is not entitled to an action to recover it, or to a personal action either. On this account he should have judgment rendered against him, because if he had sold his own property, he would have been able to assign these rights of action to the purchaser.

(5) With reference to articles which are determined by weight, number, and measure (as, for instance, grain, wine, oil, and silver) the sale is held to be perfected in these instances as well as in others, only when an agreement has been made with reference to the price; and sometimes, even when an agreement has been made as to the price, the sale is not considered to have been perfected, unless the articles have been measured, weighed, or counted. For where all the wine, oil, grain, or silver, no matter how much there may be, is sold for a certain price, the same rule applies as in the case of other property.

If, however, the wine was sold in separate jars, and the oil in separate vessels, the grain in separate measures, and the silver in separate weights, a certain price being fixed for each; the question arises at what time was the purchase perfected? This question might also be asked with reference to articles which are counted, where the price was fixed according to a certain number of said articles. Sabinus and Cassius hold that the purchase became complete when the articles were counted, measured, or weighed; because the sale is considered to have been made under the condition that you should measure them in individual vessels, or weigh them pound by pound, or count them one by one.

(6) Therefore, if a flock is sold as a whole, for a certain amount, the sale is held to be perfect after the price has been agreed upon; but if the animals are sold by the head at a certain price for each one, the rules which we have just laid down will apply.

(7) Where wine is sold from a wine-cellar, for example, a hundred measures, it is perfectly true, (and this also seems to be settled) that it will be entirely at the risk of the vendor before it is measured. It makes no difference whether a price has been fixed for the hundred measures, or where one has been agreed upon for each of them.

(8) Where anyone, in selling a tract of land, conceals the name of his neighbor from the purchaser, and the latter, having learned it, should not purchase the property, we hold that the vendor will be liable.

36. Ulpianus, On the Edict, Book XLIII.

Where anyone, in making a sale, puts a price on the property which he does not expect to demand, because he intends to donate said property, he is not held to have sold it.

37. The Same, Disputations, Book III.

Where anyone sells a tract of land which has descended to him by hereditary right, in the following terms: "You may purchase this land for the same amount for which it was bought by the testator," and it is subsequently ascertained that it was not purchased by the testator at all, but that it was given to him; it is held that the sale was made without any price, and therefore that it resembled one made under a condition, which is void if the condition did not take place.

38. The Same, Disputations, Book VII.

Where anyone sells property at a low price for the purpose of making a donation of the same, the sale will be valid; for we hold that a sale made of the entire amount of anything is not valid where this is done solely for the sake of making a donation, but when the property is sold at a lower price on account of a donation, there is no doubt that the sale will be valid.

This rule applies to transactions between private individuals; but when a sale is made at a low price on account of a donation between husband and wife, it is of no force or effect.

39. Julianus, Digest, Book XV.

Where a debtor has redeemed property pledged to his creditor, he will not be liable to an action on sale as the purchaser of his own property, and all the rights of his creditor will remain unimpaired.

(1) It is probable that where anyone sells olives which are still hanging on the trees, and stipulates for ten pounds of the oil to be obtained from the same, that he intended to be paid by what is obtained therefrom up to ten pounds of oil. Therefore, if the purchaser can only extract five pounds of oil from said olives, it is held by several authorities that he will not be liable for more than the five pounds of the oil which he has obtained.

40. Paulus, Epitomes of the Digest of Alfenus, Book IV.

A man who sold a tract of land stated in the contract: "That the purchaser should measure the land within the next thirty days, and should give him notice of the measurement, and if he did not do so within that time, the vendor should be released from his obligation." The purchaser gave notice of the measurement within the stated time, Which was found to be less in extent than he supposed, and on this account he received money from the vendor. He afterwards sold the land, and when he himself was measuring it for his own purchaser, he found that there was very much less land in the tract than he thought there was. The question arose whether the amount of the deficiency could be recovered from his vendor. The answer was that the terms of the contract should be examined. For if it had been stated "That the purchaser should measure the land within the next thirty days, and notify the owner how much was lacking in the measurement," and he notified him after the thirtieth day had passed, it would be of no advantage to him; but if it had been set forth in the agreement "That the purchaser should measure the land within the next thirty days, and notify him of the measurement of the same," even though he notified him that the tract was smaller in size than had been supposed, he could, even after several years, bring an action to recover the value of the deficiency.

(1) In a contract for the sale of land the vendor granted the right to obtain water; and the question arose whether a right of way to the water was also included. The answer was that this seemed to have been the intention of the parties, and therefore that the vendor was compelled to grant a right of way.

(2) A party who sold a field, stated that it contained eighteen jugera, and stipulated that after it had been measured he should receive a certain price for each jugerum.¹ The field was found to contain twenty jugera, and it was held that payment for twenty was due.

¹ The Roman jugerum, the standard unit of superficial measurement, was about three-fifths of an acre. It is of such remote antiquity that the date of its adoption cannot be established, and probably antedated the foundation of the Kingdom. Its primitive origin is disclosed by the fact that, like the term jugum, it denoted the amount of land which could be plowed by a yoke of oxen in a day. — ED.

(3) The vendor of a tract of land reserved the grain that had been sowed with the hand, and on the tract a crop had grown from grain which had fallen from the stalk. The question arose whether this was included in the contract. The answer was that the intention should be carefully considered, but, according to the terms of the agreement, the intention seemed to be that what had fallen from the stalk should not be included, any more than if it had fallen from the sack of the sower, or had grown from seeds dropped by birds.

(4) Where a party sold a tract of land and reserved the entire crop of the same, it was held that reeds and wood that were cut were included in said crop.

(5) A slave stated that casks which were on land belonging to his master were accessory to the same. It was held that the casks, which had been bought by the slave who had cultivated the land, and which formed part of his peculium, should be delivered to the purchaser.

(6) The wheel also by which the water is drawn is a part of the building as well as the bucket.

41. Julianus, On Urseius Ferox, Book III.

A certain person attempted to purchase a tract of land from another who had encumbered it, with the understanding, "That it should be considered to be purchased by him, if the vendor released the land, provided he did so before the Kalends of July."

The question arose whether he could properly bring an action of purchase founded on such an agreement, to compel the vendor to remove the encumbrance from the land. The answer was that we should ascertain the intention of the purchaser and vendor, for if it had been intended that the vendor should remove the lien from the land absolutely, before the Kalends of July, the action on purchase should be brought to compel him to do so, and that the purchase was not understood to be made under a condition; as, for instance, if the purchaser had addressed the vendor as follows: "I will buy your land if you will remove the lien on the same before the Kalends of July," or "If you will redeem it from Titius before that date." Where the purchase was made under a condition, proceedings cannot be instituted until the condition has been complied with.

(1) You sold me a table plated with silver, with the understanding that it was solid, neither of us being aware that it was not. The sale is void, and the money paid on account of it can be recovered.

42. Marcianus, Institutes, Book I.

Masters cannot, either themselves or by their agents, dispose of slaves, even if they have been guilty of criminality, for the purpose of having them fight with wild beasts. The Divine Brothers also stated this in a Rescript.

43. Florentinus, Institutes, Book VIII.

Whatever is stated, while sales are being made, in praise of the property, will not bind the vendor, if the truth be clearly apparent; as, for example, where the vendor says that a slave is handsome, or a house well constructed. If, however, he should allege that the slave is well educated, or a skilled artisan, he must make his statements good, for he sold the property for a higher price by reason of them.

(1) There are certain promises which do not bind the vendor if the property is in such a condition that the purchaser cannot be ignorant of it; as, for instance, where anyone buys a slave whose eyes have been torn out, and the vendor stipulates with regard to his soundness, for he is held to have stipulated for every other part of his body, with the exception of that in which he deceives himself.¹

¹ The rule of the Common Law, caveat emptor, was not known to the Romans. In every sale of personal property, an implied warranty as to title and soundness was considered to be given by the vendor, unless an express agreement to the contrary was entered into by the parties, by which the vendor could either provide that he should not be liable for any faults or blemishes whatever, or only for such as were not specifically designated. It was also understood that the article sold was warranted to be adapted to the purpose for which it was intended; and, if this was found to be untrue, the sale could be rescinded, and the purchase-money recovered by an action. Hence the Roman rule was caveat venditor.

In early times, a stipulation was added to the original contract that, in case the purchaser was deprived of the object of the sale by proof of a better title, he would have a right to collect double the amount which he had paid to the vendor.

Afterwards, however, an implied guarantee to indemnify him against loss resulting from such a contingency, was declared by statute to attach to all contracts of sale, just as in the case of hidden defects. If a purchaser knew of the existence of any blemish, or that the title was not good, the principle did not apply.

In England and the United States, the vendor is not liable for faults or blemishes, except in case of special warranty, or where he was aware of their existence, and made false representations, or was otherwise guilty of fraud in attempting to conceal them. An implied warranty of title, however, always exists, and the buyer is presumed to exercise his judgment with reference to any matter which may properly be considered to be within the grasp of every one endowed with ordinary shrewdness and intelligence. To enable him to do this, it is, of course, essential that he should have an opportunity to examine the article in question.

The Roman doctrine prevails in Scotland, "In every contract of sale there was, according to the law of Scotland, an implied condition or warranty that the thing sold was merchantable and fit for the purpose for which it was sold; and the seller, though quite ignorant of the latent defect, was liable if it should turn out that the article was substantially defective." (Erskine, Principles of the Law of Scotland, III, III, 4, Note.)

It is also recognized by Moslem law, but the article must not be used by the purchaser after he has ascertained that it is defective, "When a person purchases a thing with a defect of which he had no knowledge at or previous to the sale, whether the defect be trivial or flagrant, provided that it cannot be easily removed, he has an option, and may either retain the article at its full price or reject it; but he cannot retain it, and seek compensation for the defect. If he becomes acquainted with the defect before possession, he may cancel the sale and reject the purchased article, without the consent of the seller, or the intervention of a judge; but after possession the contract cannot be cancelled, except by consent, or a decree.

"It is a general principle, that any exercise of ownership by a purchaser after knowledge of a defect, annuls his right to reject the thing sold." (Baillie, The Moohummudan Law of Sale, I, VIII, 1, 2.) — ED.

(2) The vendor should warrant that he is not guilty of fraudulent intent; and this not only applies where he speaks ambiguously for the purpose of deceit, but also where he treacherously and artfully dissimulates.

44. Marcianus, Rules, Book III.

Where anyone buys two slaves at the same time for one and the same price, and one of them dies before the sale is concluded, the purchase of the one who survives is void.

45. The Same, Rules, Book IV.

Labeo states in the Book of Recent Cases that, where anyone purchases, as new, clothing which has been renovated, it is held by Trebatius that the purchaser must be indemnified to the extent of his interest, if he ignorantly bought the renovated clothing. Pomponius also approves of this opinion, in which Julianus concurs, for he says that if the vendor was ignorant that the clothing was not new, he will be liable only for the value of the property itself, but if he was aware of the fact, he will also be liable for damages sustained by the purchaser on that account, just as if he had ignorantly sold a vase plated with gold for a solid one, for he must make good the gold which he sold.

46. The Same, On Informers.

It is not lawful for anyone holding a public office to purchase property belonging to the same, either himself or by any other person; otherwise, he will not only lose the property, but he can also be sued for fourfold damages, in accordance with the Constitution of Severus and Antoninus.

This rule applies to the Steward of the Imperial Household. It can only be enforced, however, where permission to make such a purchase has not been expressly granted to the official in question.

47. Ulpianus, On Sabinus, Book XXIX.

If the servitude of a water-course is attached to a field, the right to take the water passes to the purchaser, even though nothing had been said with reference to it; just as the pipes through which the water is conducted also do,

48. Paulus, On Sabinus, Book V.

Even though they are outside the house.

49. Ulpianus, On Sabinus, Book XXIX.

And even though the right to take the water does not follow, for the reason that it has been lost; still, the pipes and the ditches, so long as they are connected, belong to the purchaser as a part of the premises. This Pomponius also stated in the Tenth Book.

50. The Same, On the Edict, Book XI.

Labeo writes that if you sell me a library on condition that the Campanian Decurions will sell me a site on which I can build it, and I am not to blame for not obtaining the latter, there is no doubt that an action De præscriptis verbis can be brought to force me to comply. I think that an action on sale can also be brought, just as if the condition had been fulfilled, since the purchaser is responsible for its not having been done.

51. Paulus, On the Edict, Book XXI.

The banks contiguous to a tract of land which has been sold, are not embraced in the measurement of the latter, because they do not belong to anyone, but are open to all by the Law of Nations; and this also applies to highways, and religious and sacred places. Therefore it is customary to provide for any advantage of the vendor, by expressly stating that highways, the banks of streams, and public places are not included in the measurement of the property.

52. The Same, On the Edict, Book LIV.

The Senate decreed that no one should demolish a building in town or country, with a view to obtaining more for it, and that no one should buy or sell any of the materials of the same in the course of trade.

The penalties fixed for those who violate this Decree of the Senate are, that he who made the purchase will be compelled to pay twice the amount of the price into the Public Treasury, and with reference to him who sold the materials, the sale shall be considered void.

It is clear that if you pay me the purchase-money, since you are required to pay double the amount into the Treasury, you can recover the same from me because the sale is void, so far as I am concerned.

This Decree of the Senate becomes operative, not only where a party sells his country seat or his town residence, but also where he sells one belonging to another.

53. Gaius, On the Provincial Edict, Book XXVIII.

In order for the property to vest in the purchaser, it is not material whether the price is paid, or a surety given on this account. What we have stated with reference to a surety must be understood to be of wider application where security is given to the vendor for the purchase-money in any way whatsoever; for example, by means of another debtor, or by the delivery of a pledge; and in these instances it is the same as if the price had been actually paid.

54. Paulus, On the Edict of the Curule Ædiles, Book I.

Where property is sold in good faith, the sale should not be annulled for a trifling reason.

55. The Same, On the Edict of the Curule Ædiles, Book II.

A sale without consideration and imaginary, is considered not to be made at all, and therefore the alienation of the property is not taken into consideration.

56. The Same, On the Edict, Book L.

Where anyone sells a female slave under the condition that she shall not be prostituted, and if this is violated he shall have a right to take her back; he will have power to do so, even if the slave has passed through the hands of several purchasers.

57. Paulus, On Plautius, Book V.

I purchased a house, both the vendor and myself being ignorant at the time when the sale was made that it had been burned. Nerva, Sabinus, and Cassius say that nothing was sold, even though the site remained, and that the money which had been paid could be recovered by suit. If, however, any part of the building was left, Neratius says that, in questions of this kind, it is important to ascertain how much of it escaped being consumed, and if the greater portion of the same was burned, the purchaser cannot be compelled to perfect the contract, and can even recover whatever he may have paid.

If, however, half of the house, or even less than half, has been burned, the purchaser will be compelled to comply with the conditions of the sale, after an appraisement of the property had been made in accordance with the judgment of a good citizen; and whatever diminution of value was found to have been occasioned by the fire should be deducted from the amount to be paid by the purchaser.

(1) But if the vendor knew that the house had been burned, and the purchaser was ignorant of the fact, the sale will not stand, if the entire building was destroyed before the transaction took place. If, however, any part of the building remains, the sale will be valid, and the vendor must refund to the purchaser the amount of his interest in what was destroyed.

(2) In like manner, also, the question should be discussed from the opposite point of view, that is, where the purchaser was aware that the house had been burned, but the vendor was ignorant of it; and in this case the sale must stand, and the entire price be paid by the purchaser to the vendor, if this has not already been done, for if it has been paid it cannot be recovered.

(3) Where both purchaser and vendor knew that the house had been entirely, or partially destroyed by fire, the transaction is of no effect, on account of fraud being set off on both sides, and a contract which depends upon good faith cannot stand where both parties are guilty of deceit.

58. Papinianus, Questions, Book X.

The purchase of land is not held to have been contracted for where the trees situated thereon have been overthrown by the wind, or consumed by fire, if it was made in consideration of said trees (as, for instance, in the case of olive trees), and this is true, whether the vendor was aware of the fact, or was ignorant of it. For whether the purchaser was aware of it or not, or whether both parties were aware of it, the same rule prevails which, in previous instances, have been laid down with reference to buildings.

59. Celsus, Digest, Book VIII.

When you sell a tract of land and do not state that it is in the very best possible condition, the opinion held by Quintus Mucius is correct, namely, that the vendor must deliver the property not free from all encumbrances, but as it was at the time. The same must be said to apply to urban estates.

60. Marcellus, Digest, Book VI.

It was included in the terms of a sale of land that the purchaser should be entitled to sixty casks as accessory to the same, and as there were a hundred of these, it was held that the vendor had the power to select those which he wished to furnish.

61. The Same, Digest, Book XX.

I think that I can purchase my own property under a condition, because a case might arise where it would cease to be mine.

62. Modestinus, Rules, Book V.

Where a person administers a public office in a province, or serves there as a soldier, he cannot purchase land in said province, unless where property which belonged to his ancestors is sold by the Treasury.

(1) Where a party ignorantly purchases sacred, religious, or public places, supposing them to belong to private individuals, it is held that the purchase is void; and an action on sale can be brought against the vendor by the purchaser, to recover the amount of the interest he had in not being deceived.

(2) Where property is purchased in bulk, it is done at the risk of the purchaser, provided the vendor is not guilty of fraud, even if the property has not been transferred.

63. Javolenus, On Cassius, Book VII.

Where a master orders his slave to sell property to a certain person, and he sells it to another, the sale will not be valid. The same rule applies to a person who is free, since a sale cannot be made to a party to whom the owner was unwilling that the property should be sold.

(1) Where the contents of a tract of land have been described, it is superfluous to mention the boundaries of the adjacent tracts. If they are mentioned, it is also necessary to state the names of the vendors of the same, if any of them should happen to have adjoining land.

64. The Same, Epistles, Book II.

"The tract of land is purchased for myself and Titius." I ask whether the sale includes a portion of said land, or the whole of it, or whether it is void? I answered: I think that the mention of Titius is superfluous, and therefore that the purchase of the entire tract is mine.

65. The Same, Epistles, Book XI.

An agreement was made between you and myself that you would sell me a certain number of tiles at a special price. What would you do in a case of this kind, would you consider it to be a sale or a lease? The answer was that, if it was agreed I should furnish you with the material for the tiles to be made on my land, I think it would be a purchase, and not a lease; for a lease only exists where the material of which anything is made always remains the property of the same party, but whenever it is changed and alienated, the transaction should be understood to be rather a purchase than a lease.

66. Pomponius, On Quintus Mucius, Book XXXI.

In the sale of a tract of land certain things should be guaranteed, even though they may not be contained in the agreement; for example, that the purchaser will not lose the land or the usufruct of the same by the assertion of a superior title.

Again, there are certain things which the vendor is not compelled to provide unless they are expressly mentioned; as, for instance, a right of way, a pathway, a road on which to drive cattle, and a water-course. This rule also applies to urban servitudes.

(1) Where land which is sold is entitled to a servitude, and the vendor did not mention the fact, but, being aware of it, kept silent, and on this account the purchaser of the property, by not making use of the servitude through ignorance during the time established by law, lost it; certain authorities very properly hold that the vendor is liable to an action of purchase on the ground of fraud.

(2) Quintus Mucius says that anyone who mentions raw materials as not appurtenant to a house or a tract of land, states the same thing twice, for raw materials are things which belong neither to a house nor to land.

67. The Same, On Quintus Mucius, Book XXXIX.

Where an alienation of property is made, we transfer the ownership of the same to the other party, together with its accessories, that is, in the same condition as if the property had remained in our hands; and this rule applies to all cases under the Civil Law, unless something to the contrary has been expressly stated.

68. Proculus, Epistles, Book VI.

If, when you sell a tract of land, you state in the contract that whatever you collect from the lessee as rent, shall belong to the purchaser; I think that you should not only show good faith, but also exercise diligence in the collection of said rent; that is to say, that you shall not merely avoid all fraudulent intent but also all negligence.

(1) Some persons are accustomed to add these words, "The vendor is without fraudulent intent," and, even if this is not added, there should be no fraudulent intent.

(2) The vendor is not held to be free from fraudulent intent if he performs any act, or anything is done, to prevent the purchaser from obtaining possession of the land. In this instance, therefore, an action on purchase can be brought, not to compel the vendor to deliver the mere possession, since it might happen for many reasons that he could not do so, but in order that, if he has been guilty, or is now guilty of bad faith, an appraisement of damages for the same may be made.

69. The Same, Epistles, Book XI.

Rutilia Polla bought the lake at the corner of the Sabatine estate, and ten feet of ground around said lake. I ask if the lake should become larger, whether the ten feet of land due to Rutilia Polla are those which are under water, or the ten feet around the water, after the lake has increased in size? Proculus answered: "I think that the lake which Rutilia Polla bought was sold to her in the condition that it was at the time, with the ten feet of land which then surrounded it, and because the lake afterwards increased in size she should not be entitled to the possession of more ground than she purchased."

70. Licinius Rufinus, Rules, Book VIII.

Many authorities held that the purchase of a freeman could be made, provided the transaction took place among parties ignorant of the facts. It has been decided that the same rule applies even if the vendor knows that this is the case, and the purchaser is ignorant of it; for if the purchaser, knowing a man to be free, buys him, the purchase will be void.

71. Papirius Justus, Constitutions, Book I.

The Emperors Antoninus and Verus made use of the following words in a Rescript addressed to Sextus Verus: "It is in the power of the contracting parties to fix the price and the measure of the wine with reference to which they are negotiating, for no one can be compelled to sell if he is not content with the price or the measure of the article; especially where there is no violation of the custom of the country."

72. Papinianus, Questions, Book XII.

Where, after the contract is made, the parties deduct something from the property purchased, this is considered to be included in the original contract, but where they make additions, we do not think that these form part of the contract. This takes place where something is added which supports the purchase; for instance where a bond for double the amount is furnished, or where a bond is furnished together with a surety. But in case the purchaser brings an action where the agreement is not valid, and the vendor also brings one, he will also have the right to avail himself of an exception.

The question has very reasonably been asked whether the same rule applies where the price has been subsequently increased, or diminished; since the substance of the purchase consists of the price. Paulus states in a note that where everything remains in its original condition, and an agreement is afterwards made with reference to the increase or diminution of the price, the parties are held to have withdrawn from their former contract, and a new purchase to have been made.

(1) Papinianus says that where a sale is made in the following terms, namely: "This sale shall be void if it has reference to anything sacred, religious, or public," and the property is not in public use, but belongs to the Treasury, its sale will be valid, and the vendor cannot avail himself of an exception because it will not be operative.

73. The Same, Opinions, Book III.

If a temple is destroyed by an earthquake, the site of the building is not profane, and therefore cannot be sold.

(1) Where ground has been used for a garden, or for some other kind of cultivation, within the wall enclosing a tomb, it is profane and belongs to the purchaser, if the vendor did not expressly except it.

74. The Same, Definitions, Book I.

Possession is held to have been transferred where the keys of a warehouse containing merchandise have been delivered, provided they are given up at the said warehouse; and when this is done, the purchaser immediately acquires ownership, and possession of the same, even though he does not open the warehouse; and if the merchandise does not belong to the vendor, the right of usucaption begins immediately to run.

75. Hermogenianus, Epitomes of Law, Book II.

Where anyone sells a tract of land, under the condition that he himself should hold it under a lease or payment of a certain sum, or that the purchaser cannot sell it to anyone else but the vendor himself, or where gome similar provision is agreed upon; the vendor has a right to bring an action on sale to compel the purchaser to comply with his contract.

76. Paulus, Opinions, Book VI.

Casks which are buried in warehouses are held to have been transferred with the sale of the former, unless they are expressly excepted.

(1) The person who succeeds to the rights of a purchaser can avail himself of the same defence which the purchaser himself could have employed, including even that of prescription based on long possession, if the possession of both purchasers has lasted during the time established by law.

77. Javolenus, On the Last Works of Labeo, Book IV.

In a contract for the sale of land, the quarries on said land, wherever they might be, were reserved, and after a long time quarries were found on said land. Tubero gave it as his opinion that they belonged to the vendor; Labeo held that the intention should be considered, arid if this could not be ascertained, the said quarries could not be held to ' have been reserved, for no one would sell or reserve something which was not in existence, and no quarries are in existence unless they are visible and are worked. In case a different interpretation should be given, the entire tract would constitute a quarry if there should happen to be stone under all of it. I approve this opinion.

78. Labeo, Last Works, Epitomes of Javolenus, Book IV.

It was stated in a contract that certain water-pipes referred to in a sale belonged to the purchaser. The question arose whether the building from which the water was conducted by the pipes was an accessory? I answered that it appeared that the intention was that it should be an accessory, although this was not contained in the written instrument.

(1) You purchased a tract of land from a certain person, the guardianship of whose son you afterwards administered, but you did not obtain possession of said land. I stated that possession could be delivered to you by causing the ward and his family to leave the premises, and that then you could enter into possession of the same.

(2) A man purchased a tract of land under the condition that possession of it should be delivered to him as soon as the price was paid. He died leaving two heirs, if one of them should pay the entire sum, he could retain his share in an action in partition; but if he only paid a part of the price, he could not bring an action on purchase against the vendor, since a debt contracted in this way cannot be divided.

(3) Where you sell grain which is uncut, and agree to make good any loss sustained by force, or by bad weather, and the said grain is destroyed by snow; if the fall was very great, and more than what usually took place at that season, an action on purchase can be brought against you.

79. Javolenus, On the Last Works of Labeo, Book V.

You sold half of a tract of land on condition that the purchaser would lease you the other half, which you reserved for the term of ten years at a certain rent, payable annually. Labeo and Trebatius deny that an action on sale can be brought, to compel the purchaser to comply with what he agreed to. I am of the contrary opinion, even if you sold the land at a very low price in order that this lease might be made to you; for this is held to be part of the price of the land, since it was sold under this agreement. This is the law at the present time.

80. Labeo, Last Works, Epitomes of Javolenus, Book V.

Where a vendor in a sale reserves all crops which have been sowed by hand, those which have been permanently planted are not held to have been reserved, but only such as are usually sowed every year, in order that their yield may be gathered; for, if this was interpreted otherwise, all vines and trees would be held to have been reserved.

(1) I stated that a purchase could not be made of property in the following terms, namely: "I shall enjoy the right to have my house project over yours," and that on this account an action on purchase can be brought.

(2) The right to cut wood was sold for the term of five years, and the question arose to whom the acorns which might fall would belong? I am aware that Servius gave it as his opinion that what appeared to be the intention of the parties must be followed in this instance. If, however, this cannot be ascertained, any acorns which fell from trees, which were not cut down will belong to the vendor, and those which remained on the trees which were cut down, will be the property of the purchaser.

(3) No one can be held to have sold property whose ownership is in question, unless it was delivered to the purchaser; for this is either a lease, or some other kind of a contract.

81. Scævola, Digest, Book VII.

Titius, when he borrowed a certain sum at interest, pledged or hypothecated lands, and gave Lucius as surety, whom he promised to release from liability within the next three years, and, if he did not do so at the appointed time, and the surety paid the debt, he directed him to hold, as purchaser, the lands which he had encumbered to his creditors. I ask if Lucius, as surety, should not be released by Titius and should pay the creditor, whether he would be the purchaser of the aforesaid lands? The answer was that if the surety was to have the land as a purchase, and not on account of the obligation, the purchase was made under a condition, and an obligation was contracted.

(1) Lucius Titius promised to furnish a hundred thousand measures of grain annually from his own land to that of Gaius Seius. Lucius Titius afterwards sold his land, and inserted the following words in the contract: "The land of Lucius Titius is sold today, and is to be held subject to the same rights and the same conditions as it is now held by the vendor." I ask whether the purchaser is responsible to Gaius Seius for the delivery of the grain. The answer was that, according to the facts stated, the purchaser is not bound to furnish it.

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TITLE II. CONCERNING A CONDITIONAL SALE DURING A CERTAIN TIME.

1. Paulus, On Sabinus, Book V.

A conditional sale during a certain time is made as follows: "Such-and-such a tract of land is considered to be purchased by you, unless before the first Kalends of next January, I can obtain better terms by which I can relinquish the ownership of the same."

2. Ulpianus, On Sabinus. Book XXVIII.

Whenever land is sold for a certain period, it should be determined whether the sale is absolute, or under some condition, and inquiry should be made whether it is not undoubtedly conditional. It seems to me to be the better opinion that the interpretation of the contract depends upon what was the intention of the parties, for if it was understood that the sale should be annulled if more advantageous terms were offered, the purchase is absolute, and will be rescinded if the condition takes place. If, however, the intention was that the purchase should be perfected if better terms were not offered, the purchase will be a conditional one.

(1) Therefore, where, in accordance with the distinction which we have made, the sale is absolute, Julianus states that he to whom the property was sold under such conditions, can acquire it by usucaption, and has a right to the crops and all the accessories, and the loss will be his if the property should be destroyed.

3. Paulus, On Sabinus, Book V.

Since, after the destruction of the property the condition of the vendor cannot be improved.

4. Ulpianus, On Sabinus, Book XXVIII.

Where a sale is conditional, Pomponius denies that the purchaser has the right of usucaption, and that the crops do not belong to him.

(1) Julianus asks the following question in the Fifteenth Book, namely: If during the time appointed for the sale the property should be destroyed, or a female slave should die, can the addition of her offspring or of the profits be allowed on this account? Julianus denies that this can be done, because it is not customary for the addition of property, other than of that which was sold, to be allowed.

(2) Julianus also asks in the same Book. If two slaves have been sold for twenty aurei conditionally, for a certain time, and one of them flies, and afterwards a purchaser appears to buy the surviving slave, and makes an offer of more than twenty aurei, will the first contract be annulled? He says that this example is different from the one relative to the offspring of the slave, and therefore, that, in this instance, the first purchase is rescinded, and the second may be concluded.

(3) Marcellus, however, states in the Fifth Book of the Digest that, where a tract of land is sold subject to the condition of a better offer, and the latter is made, if the purchaser has pledged the property, it will cease to be encumbered; for which it may be inferred that the purchaser is the owner during the intermediate time, otherwise the pledge will not be valid.

(4) Julianus also says in the Eightieth Book of the Digest, that he who purchases land dependent upon better terms being offered within a certain time, can avail himself of the interdict Quod vi aut clam, for he is entitled to this interdict whose interest it is that such an event should not take place.

He says, however, that where land is sold under such a condition, both its advantages and disadvantages belong to the purchaser before a sale is made to a third party; and therefore that, if any forcible or clandestine act is performed, the first purchaser will be entitled to an interdict, even though better terms had been offered; but he also says that he can bring this action, just as he can claim the crops which he has gathered from the property sold.

(5) Therefore, where the sale is annulled after having been absolutely made, or where the condition under which it was contracted is not complied with, if better terms are offered, (on the supposition that there is a spurious buyer), Sabinus very properly states that the property belongs to the first purchaser, because better terms do not seem to be offered, as another genuine purchaser did not appear. Where, however, another purchaser appears, but does not offer better terms than the former one, it must also be said that everything remains in the same condition as if he had not appeared.

(6) Better terms are held to be offered where an addition is made to the price. If, however, the price is not increased, better terms are held to be offered if the payment of the price is rendered more easy, or is made sooner. Again, if a more convenient place for payment is mentioned, better terms are also held to have been offered, and this Pomponius stated in the Ninth Book on Sabinus.

He also says that better terms are likewise held to have been offered if a more solvent party presents himself as a purchaser. Hence, if another purchaser is willing to give the same price, but agrees to buy the property under less onerous conditions, or does not require security, better terms are held to be offered.

The same opinion must be approved if he is ready to purchase the property for a lower price, but releases the vendor from conditions which were burdensome to him in the first transaction.

5. Pomponius, On Sabinus, Book IX.

For whatever contributes to the convenience of the vendor should be considered as affording more advantageous terms.

6. Ulpianus, On Sabinus, Book XXVIII.

Moreover, what has been stated, namely, that the crops gathered in the meantime belong to the first purchaser, is only true so long as a purchaser does not appear who offers better terms, or where one who does appear is proved to be false. If, however, another purchaser appears, it is settled that the first one must return the crops to the vendor; and this Julianus stated in the Forty-eighth Book of the Digest.

(1) Where anyone appears who offers better terms, and then the first purchaser bids against him, and the property remains in his hands; it may be doubted whether he is entitled to the crops, as he would have been if no better terms were offered; or whether they belong to the vendor, even though the first purchaser is the one who made the better offer. I think that the last conclusion seems to be reasonable, but still, it is important, as Pomponius says, to ascertain what was the intention of the parties.

7. Paulus, On Sabinus, Book V.

The vendor can adjudge the property to the last purchaser, where better terms are offered, unless the former is ready to bid a larger sum.

8. The Same, On the Edict, Book XXXIII.

The vendor is required to notify the first purchaser, where better terms are offered, so that, if the other has increased the price, he can do so likewise.

9. Ulpianus, On Sabinus, Book XXVIII.

Sabinus says that the vendor can reject the better terms offered, and adhere to the first proposal, if he considers it preferable, and we have adopted this rule. But what should be done, if the intention of the parties had been expressly stated to be that the purchaser could withdraw his offer in case a better one was made? It must be said that the first purchase is annulled, even if the vendor does not accept the second one.

10. Julianus, Digest, Book XIII.

Where, however, a pledge has been sold by a creditor in the case of a conditional sale, he cannot be held to have acted in good faith, if he does not accept the increased price. But what if the new purchaser was poor, and had intervened only for the purpose of preventing the sale? The creditor can adjudge the property to the first purchaser without incurring any risk.

11. Ulpianus, On Sabinus, Book XXVIII.

The opinion of Sabinus, namely, that land cannot be sold a second time where it is subject to a condition of this kind, he defends by the following argument. He holds that the land at once became the property of the first purchaser, just as if better terms were not offered when it was not adjudged positively to the second purchaser, but only with the view to another bidding up the price. Julianus, however, says in the Fifteenth Book of the Digest, that the intention of the contracting parties is a matter of much importance, and that there is nothing to prevent the land from being frequently transferred, provided this is done by the vendor after the first, second, or third bid.

(1) Sabinus also says that, where of three vendors two adjudge the property to the last purchaser, but one did not consent that this should be done, the share of the latter will belong to the first purchaser; and this is true where the vendors sold their shares to different parties,

12. Pomponius, On Sabinus, Book IX.

Even though the shares of the vendors were unequal.

13. Ulpianus, On Sabinus, Book XXVIII.

Where all three parties sold their shares at the same price, it must be said that the entire property belongs to the first purchaser; just as if someone had sold me an entire tract of land for a time under this condition, and afterwards had adjudged half of it to another party at a higher price.

Celsus states in the Eighth Book of the Digest, that Mucius, Brutus, and Labeo were of the same opinion as Sabinus. Celsus also approves this opinion, and he adds that he is surprised that it had been remarked by no one that if a first purchaser had made a contract with the understanding that he was unwilling to make the purchase unless the entire property was included, he could not be compelled to buy that portion which one of the joint-owners refused to adjudge to a subsequent purchaser.

(1) It is true, however, that one of the vendors can himself offer better terms, because we can also purchase our share along with the remainder of the entire property.

14. Paulus, On Sabinus, Book V.

If a vendor pretends that better terms have been offered, while, in fact, the price was lower; and he should sell the property to the party for this, or for the same that had been previously offered, he will be liable to both purchasers for the entire amount.

(1) Where the purchaser provides another who is not solvent, and the land is adjudged to him, Sabinus says, "I do not see how the property can be purchased by the former, since another and a genuine sale has subsequently been made." It is true, however, that where the vendor has been deceived, he will be entitled to an action on sale against the first purchaser, to the extent that he was interested in not having this done. By means of this action, the vendor will recover the crops which the first purchaser gathered, as well as damages to the extent that the property was deteriorated by the negligence or fraudulent acts of the latter. This opinion was also held by Labeo and Nerva.

(2) But where neither of the parties provided the new purchaser, but the land was adjudged to him on account of the larger amount which he offered, even though he may not be solvent, the first purchase is annulled; because what the vendor approved is understood to be more advantageous, since he had the right not to adjudge the property to the last purchaser.

(3) Where, however, a ward purchases property at a higher bid, without the authority of his guardian, if the vendor accepts his bid the first purchase will be annulled; and the same rule applies to the case of a slave belonging to another.

It would be otherwise, however, if the vendor, through mistake, should adjudge the property to his own slave, or to his son who is under his control, or to the owner of the property himself, because there can be no sale under such circumstances. On the other hand, if he should adjudge the property to the slave of another whom he believed to be free, he would be liable; and the case will be similar to that of an insolvent debtor.

(4) Where a purchaser offers better terms, he acquires nothing except the property which is sold.

(5) Still, however, better terms are not offered where another party is willing to pay the same price, because he does not obtain the crops which belonged to the first purchaser, since these are not the object of the transaction between a second purchaser and the vendor.

15. Pomponius, On Sabinus, Book IX.

Where land has been sold conditionally in this manner, and the vendor dies before the expiration of the time, or his heir appears afterwards, or does not appear at all, the land will belong to the first purchaser; because it cannot be understood that better terms have been offered which would be accepted by the owner, since he who sold the property is no longer living. Where, however, the heir appears before the expiration of the time, better terms can be offered to him.

(1) When a tract of land is sold subject to a condition of this kind, and more has been paid for it with the understanding that such accessories as have not been received by the first purchaser shall be delivered to the second; if these accessories are not less in value than the increase of price of the second sale, the former sale will be valid, because, if they are less, the terms of the second sale will not be more advantageous than those of the first.

A similar estimate should also be made where a longer time for payment is granted the second purchaser, in order that the calculation of the interest may be made for the additional time.

16. Ulpianus, On the Edict, Book XXXII.

The Emperor Severus stated in a Rescript: "Just as where a house is sold under a condition in this manner, the profits must be restored to the vendor, in case of a better offer; so he will be entitled to retain the income from the property where he shows that it is not sufficient to pay the necessary expenses which the first purchaser proves that he has incurred in the meantime." I think that the Emperor had the action on sale in his mind.

17. Julianus, Digest, Book XV.

Where two slaves have been thus conditionally sold separately for ten aurei, and someone appears who says that he will pay thirty for both; it should be ascertained whether he wishes to add ten to the price of one, or five to the price of each. In the first instance, the slave to whose price the addition is made, will not be bought by the first purchaser, and, in the second instance, both slaves will belong to the second. If it is uncertain to the price of which one an addition is made, it will be held that the first purchase is not annulled.

18. Africanus, Questions, Book III.

Where a tract of land has been sold conditionally in this manner to two partners, and one of them increases the price, it is very properly held that the first sale is annulled, even with reference to the share of the party who increases the amount.

19. Javolenus, On Plautius, Book II.

Where a tract of land has been sold dependent upon a better offer being made, and a higher price is subsequently offered, and the vendor adjudges the said tract to the second purchaser, together with another adjoining it, and does this without fraudulent intent; he will not be liable to the former purchaser, even though he not only sold him what was included in the offer at a higher price, but also another tract; still, if the vendor was not guilty of fraud, the transaction with the first purchaser is at an end, for it should only be considered whether the transfer to the second purchaser was made in good faith.

20. Papinianus, Opinions, Book III.

The first purchaser, after better terms have been offered by another, cannot bring an action against the second for the money paid to the vendor, unless in compliance with the terms of the stipulation a substitution was made of the second purchaser for payment.

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TITLE III. CONCERNING THE CONDITIONAL ANNULMENT OF A SALE.

1. Ulpianus, On Sabinus, Book XXVIII.

Where a tract of land is sold conditionally on the payment of the purchase-money, it is held rather to be annulled under a condition, than to be contracted under one.

2. Pomponius, On Sabinus, Book XXXV.

Where the vendor of a tract of land provides in a contract that if the money is not paid at the appointed time the property shall not be considered sold, the latter clause is understood to mean if the vendor wishes that it should not be sold, because this provision is made for his benefit. For if it was understood in another sense, and the house which was purchased should be burned, the purchaser would have it in his power, by not paying the money, to annul the sale of property which was at his own risk:

3. Ulpianus, On the Edict, Book XXX.

As the clause relative to the annulment of the sale in case of non-payment, which is inserted in the contract, is dependent upon the will of the vendor, for, if unwilling to do so, he cannot be compelled to carry it into execution.

4. Paulus, On the Edict, Book XXXII.

Where a tract of land has been sold conditionally upon payment of the purchase-money, that is to say, that the sale will be void if the price is not paid within a certain time; let us consider in what way the vendor can proceed with reference to the land as well as the profits which he has received therefrom, and also in case the land has become deteriorated through the act of the purchaser. The purchase, indeed, is at an end, but it has already been decided that an action on sale will lie, as is stated in the Rescripts of the Emperor Antoninus and the Divine Severus.

(1) What Neratius says is, however, reasonable, namely, that sometimes the purchaser is entitled to the profits when he loses the price which he paid. Therefore, this opinion of Neratius, which is just, applies when the purchaser has paid a certain portion of the purchase-money.

(2) Papinianus very properly says in the Third Book of Opinions that as soon as the clause in the contract becomes operative, the vendor must determine whether he wishes the sale to be annulled, or whether he will demand the price; for if he chooses to annul the sale, he cannot afterwards adopt a different course.

(3) It is customary in a sale of this kind to also agree, "That if the vendor should sell the same tract of land, he can collect from the first purchaser the amount of the deficiency in the price." Hence, in this instance, an action on sale can be brought against a first purchaser.

(4) Marcellus, in the Twentieth Book, is in doubt whether a contract of this kind is operative where he who is notified to pay does not do so, or where, in fact, he does not tender the money. I think the better opinion is that he should tender it, if he wishes to be released from liability on the contract of sale. If, however, no one should appear to whom he can tender it, he will be secure.

5. Neratius, Parchments, Book V.

Where it is stated in the contract for the sale of land that if the price is not paid within a certain time, the property will not be considered sold; it must be understood to be the intention that the purchaser shall, in the meantime, be entitled to the crops of said land, but if it is restored to the vendor, Aristo is of the opinion that an action for the recovery of the crops should be granted to him against the purchaser, because nothing derived from the property should remain in the hands of the party who has not complied with his contract.

6. Scævola, Opinions, Book II.

Having been interrogated with reference to a contract for the sale of land dependent upon payment, I answered that, if anything was done by the purchaser to prevent the execution of the contract, and the vendor wishes to enforce it, the land would remain unsold; and whatever had been paid by way of earnest, or for any other reason, should remain in the hands of the vendor.

(1) The same opinion was given that, where the land remained unsold on account of non-compliance with the contract, whatever might be classed as accessories should not remain in the possession of the purchaser.

(2) A vendor received the remainder of the purchase-money after the day mentioned in the contract of sale. The opinion was that the vendor should be considered to have renounced the privilege of the contract, if he did not enforce its execution, and receive the balance of the money due after the day fixed for its payment.

7. Hermogenianus, Epitomes of Law, Book II.

If the vendor demands the price, after the time mentioned in the contract for its payment has elapsed, he is held to have renounced the benefit of said contract, for he cannot do otherwise and have recourse to the contract.

8. Scævola, Opinions, Book VII.

A woman sold certain lands to Gaius Seius, and received a sum of money by way of earnest, a time having been fixed for the payment of the remainder of the amount; and it was agreed that if the purchaser should not comply with the terms of the contract he should lose the earnest, and that the property should remain unsold. Upon the appointed day the purchaser, in the presence of witnesses, offered to pay the balance of the purchase-money, and sealed the bag containing the same with the seals of all the parties, but the vendor was not present. The next day the purchaser was notified by the Treasury, in the presence of witnesses, not to pay the woman until a claim of the Treasury was satisfied. The question arose whether, in this instance, the lands should not be recovered by the vendor in accordance with her agreement.

(1) The answer was that, in accordance with the facts stated, the purchaser had not committed any act in violation of the contract of sale.

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TITLE IV. CONCERNING THE SALE OF AN ESTATE, OR OF A CLAIM.

1. Pomponius, On Sabinus, Book IX.

If the right to inherit an estate is sold during the lifetime of the party who owns it, or if it is sold where it is worthless, the sale is void, because there was nothing in existence which could be sold.

2. Ulpianus, On Sabinus, Book XLIX.

The vendor of a right to an estate is not compelled to give security against recovery by a better title, for the implied understanding between the purchaser and the vendor is that the former should have nothing more or less than the heir would be entitled to. It is clear that the vendor can be compelled to give security for what actually conies into his hands.

(1) Where a right of succession is sold, should it be considered whether an account is to be taken of the amount of the estate at the time of the death, or when the estate was entered upon, or of the assets when the sale took place? The better opinion is that the intention of the parties should be carried into effect, and it is generally held that the intention was that whatever formed part of the estate at the time when the sale was concluded is considered to be sold.

(2) It may also be asked whether, when the person who sold the estate of the testator was himself substituted for a minor heir, what came into the hands of him who sold the estate from the inheritance of the minor heir would afford ground for an action on purchase. The better opinion is that it would not be included, because the estate of a minor is different from that of his father, for, although there is but one will, there are, nevertheless, two estates. It is evident that if this was the intention, it must be held that the estate of the minor is also included in the sale; above all, if the right of inheritance was sold while the succession of the minor was still intact.

(3) A question arises as to the construction of this clause, namely: "Whatever has come into the hands of the heir who sells his right of inheritance."

It is my opinion that it applies to a case where the vendor has not yet obtained any of the property belonging to the estate, and that he has only acquired the privilege of assigning his rights of action to the purchaser, for where he has obtained possession of the property of the estate, or has collected debts due to the same, it is held that the property has come into his hands in a broader sense.

Where, however, he has obtained the price of property sold before the sale of his right of inheritance, it is clear that the price of said property has come into his hands. This should be retained by him, since it seems to have actually come into his possession, and not at first sight would merely appear to have done so; and therefore what he has paid by way of legacies is not considered to have come into his hands. Moreover, where there is any indebtedness, or other burden of any kind attaching to the estate, it is very properly said not to have come into his hands. The demands of equity, however, require the heir to pay to the purchaser the value of any property belonging to the estate which he gave away before the sale.

(4) Again, not only what has come into the hands of the vendor of the right to a succession, but also whatever has come into the hands of his heir from the estate must be delivered to the purchaser; and not only what he has already obtained, but also whatever may, at any time hereafter, come into his possession must be given up.

(5) Moreover, where any act has been committed through the fraudulent intent of the parties to prevent property from coming into the hands of the heir, this also must be made good to the purchaser. He is held to have been guilty of malicious intent to prevent property from coming into the hands of the heir who alienates any of the assets of the estate; or releases a debtor from liability by means of a receipt; or fraudulently prevents possession thereof from being acquired, where this can be done. A party is also liable not only where he has committed an act with fraudulent intent, but also where he has been guilty of gross negligence. Anything, however, that has been lost or depreciated without fraudulent intent on the part of the vendor, will not have to be made good.

(6) The question has been asked whether the vendor of the right of succession to an estate should be accountable to the purchaser for a debt due from his son who was under his control, or from his slave, to the party, the right to whose estate he sold? It is held that he should account to him only for what was ascertained to have belonged to the peculium of his son, or was used for the benefit of his own property.

(7) The question is often asked whether, where the vendor of the right to an estate has obtained any profit by reason of the same, he must make this good to the purchaser? This point is discussed by Julianus in the Sixth Book of the Digest. He says that the heir can retain whatever he may have collected that was not due, and that he will not be held accountable where he has paid what was not due; for the rule that the heir is not required to make good to the purchaser a debt which he collected that was not due must be observed, and that he cannot collect from him anything which he paid when it was not owing. If, however, the heir should make payment after judgment has been rendered against him, it will be sufficient for him that he suffered an adverse decision without any fraud on his part, even though the creditor was not the party in whose favor the decision was rendered. I concur in this opinion.

(8) It must be said that the heir should assign to the purchaser not only any rights of action belonging to the estate, but also such obligations as the heir himself has contracted for his own benefit, and which he derived from the estate; therefore, if the heir has accepted a surety from a debtor to the estate, he should assign to the purchaser any claim which he may have against said surety. Where, however, he has renewed the obligation, or instituted judicial proceedings with reference to it, he must assign the right of action which be has obtained.

(9) As all the profits of the succession to an estate are acquired by the purchaser, so also he must bear any loss growing out of the same.

(10) Hence, if an heir should sell the right of succession to an estate, and, in consequence, should have judgment rendered against him, he will not be entitled to an action against the purchaser; as the decision was rendered against him, not because he was the heir, but for the reason that he had made the sale. Let us see, however, if he pays to the purchaser of the succession the price received for the property sold, whether there will be ground for an action on sale. I think that there will be.

(11) Where the vendor himself gave something on behalf of the estate, or his agent, or anyone else who was transacting his business did so, there will be ground for an action on sale; provided anything was paid out of the property of the vendor of the right of succession. If, however, the vendor was at no expense on his own account, it must be held, in consequence, that an action in his favor will not lie.

(12) It is stated by Julianus that, if the vendor of a right of succession reserves a slave without his peculium, and an action De peculio is brought against him on account of said peculium, or he is sued for money expended for the benefit of the property of the deceased; that can only be recovered which he would have paid on account of said peculium and would have passed to the purchaser, or the amount which had actually been expended on the property of the deceased; for, in these instances, he has paid the debts of the purchaser, and. in all others, the vendor will have judgment rendered against him in his own name.

(13) What then, if the vendor of the right of succession to an estate should reserve a slave together with his peculium and an action was brought against him on the peculium, would he be compelled to pay? Marcellus holds in the Sixth Book of the Digest, that this cannot be recovered from him, provided the intention of the parties was that the vendor should be entitled to what remained of the peculium, after Payment of the claim. If, however, the intention was different, he very properly says that the purchaser can bring an action against him for its recovery. Where nothing was expressly agreed upon between the parties, but mention was only made of the peculium, it is established that an action on sale will not lie.

(14) Where the vendor of the right of succession to an estate reserves a house, on account of which security has been given for the prevention of threatened injury, the intention of the parties is a matter of importance; for if the reservation was made in such a way that he must sustain the burden of the loss, as well as that of the security against injury, nothing can be recovered from the purchaser; but if the intention was that the purchaser should pay this debt, the burden of the stipulation will rest upon him.

If the intention cannot be ascertained, the probability is that it was understood that the responsibility for any injury which occurred before the sale was made will rest upon the purchaser, but that what may occur at any other time must be assumed by the heir.

(15) If Titius should sell to Seius his right of succession to the estate of Mævius, and, having afterwards been appointed the heir of Seius, sells his right of succession to Attius, can an action be brought against Attius on the ground of the former sale? Julianus says that whatever the vendor of the right of succession can recover from any foreign heir, he can recover from the purchaser of the right of succession. It is clear that if another heir of Seius should appear, whatever the vendor has paid on account of the estate of Mævius he can recover from the said heir in an action on sale; for if I have stipulated with Seius for double the amount of the value of a slave, and I become his heir, and sell the estate to Titius, and the slave is acquired by someone else through a better title, I will have to make good the property to Titius.

(16) Where the vendor of the right of succession to an estate has paid anything by way of public taxes, it must consequently be said that the purchaser will be required to make this good to him, for these are burdens constituting a charge on the estate. And if the heir should happen to pay anything on account of duties, the same rule will apply.

(17) If, after the funeral has taken place, the heir should sell his rights to the estate, can he recover the funeral expenses from the purchaser? Labeo says that the purchaser must refund the funeral expenses, because they, also, are part of the liability of the estate. Javolenus thinks that this opinion is correct, and I agree with him.

(18) Where anyone becomes the heir to a debtor, he ceases to be a creditor, through confusion. If, however, he should sell his right of succession to the estate, it is held to be perfectly just that the purchaser should occupy the place of the heir, and therefore be liable to the vendor either for what the testator owed at the time of his death, (although his indebtedness ceased when the vendor entered upon the estate), or for what was owing within a certain time, or under some condition, after the condition had been complied with; provided, nevertheless, that an action will lie against the heir of the debtor, for an action should not be brought against a purchaser on any ground on which it could be brought against an heir.

(19) Where an appointed heir loses any servitudes, through entrance upon an estate, he can bring an action on sale against the purchaser to compel him to restore said servitudes.

(20) If, however, the vendor has not yet paid anything, but has bound himself in any way whatsoever on account of the estate, he can, nevertheless, proceed against the purchaser.

3. Pomponius, On Sabinus, Book XXVII.

Where the vendor of an estate loses money belonging to the latter which he has collected, without being guilty of fraud or negligence, it is held that he will not be liable to the purchaser.

4. Ulpianus, On the Edict, Book XXXII.

Where a claim is sold, Celsus states, in the Ninth Book of the Digest, that the vendor is not obliged to guarantee the solvency of the debtor, but only that he is a lawful debtor; unless something else has been agreed upon.

5. Paulus, On the Edict, Book XXXIII.

And this is the case without any exception, unless the intention was otherwise. If, however, a party is alleged to be a debtor for a certain sum, the vendor will be liable for that amount; but if the sum is said to be uncertain, and nothing is due, he will be liable to the amount of the interest of the purchaser,

6. The Same, Questions, Book V.

The right of action for the recovery of a pledge should also be assigned to the purchaser, even where the pledge has been received by the vendor after the sale; for the advantages of the vendor must accrue to the purchaser.

7. The Same, On Plautius, Book XIV.

Where a party sells the right of succession to an estate, there must actually be an estate in order that a purchase may take place; for, in this instance, a purchase is not made by chance, as in hunting, and other cases of this kind; since, where there is no property, a contract for purchase cannot be made, and therefore the price can be recovered by an action.

8. Javolenus, On Plautius, Book II.

Where the vendor has no right of succession to an estate, in order to ascertain how much he should pay the purchaser, a distinction must be made, namely: where a right of succession, in fact, exists, but does not belong to the vendor, it should be appraised; but if there is no right of succession at all, with reference to which the agreement appears to have been made, the purchaser can recover from the vendor only the price which he paid, and any expenses which he incurred on account of the property.

9. Paulus, On the Edict, Book XXXIII.

And whatever interest the purchaser had in having the sale concluded.

10. Javolenus, On Plautius, Book II.

If it was agreed upon in the sale of the succession to an estate that any rights of the vendor should be sold, but that afterwards nothing should be guaranteed by him, and even though the right of succession did not belong to the vendor, he would, nevertheless, not be liable on this account, because it was manifestly the intention that as any profit arising from the transaction would belong to the purchaser, he must also bear the risk.

11. Ulpianus, On the Edict, Book XXXII.

For it is admitted that a sale of the right of succession to an estate can be made in the following terms: "If I have any rights in the estate they are sold to you," just as if the expectation of a right was purchased; for a sale in this way can be made of anything that is uncertain, as for instance, of whatever may be caught in a net.

12. Gaius, On the Provincial Edict, Book X.

But this should be understood to be operative only where a party is not aware that he had no right to the succession which he sold; for if he did, he would be liable on the ground of fraud.

13. Paulus, On Plautius, Book XIV.

If a right to a succession exists, although it has not been agreed upon that the purchaser shall be entitled to all the rights which the vendor possessed, then the latter must guarantee that he is the heir. If this is inserted in the contract, the vendor will be released, if it should be ascertained that he has no right to the succession.

14. The Same, On the Edict, Book XXXIII.

Where anyone sells claims against a son under paternal control, he must also assign any rights of action which he has against the father of the debtor.

(1) Where the right of succession to an estate is sold, the vendor shall deliver the property belonging to the same; and it makes no difference what its value is.

15. Gaius, On the Provincial Edict, Book X.

Unless the vendor has stated the amount.

16. Paulus, On the Edict, Book XXXIII.

Where you, as an heir, sell the right of succession to an estate, since the estate must be restored to you in accordance with the Trebellian Decree of the Senate, you will be liable to the extent of the purchaser's interest.

17. Ulpianus, On the Edict, Book XLIII.

We are accustomed both to purchase and sell claims due from debtors under certain conditions, or which are payable within a certain time; for this is property which can be purchased and sold.

18. Julianus, Digest, Book XV.

If one of several heirs should pay all of a sum of money which was due from the testator under a penalty, before the other heirs had entered upon the estate, and should afterwards sell his right of succession to said estate, and he is unable to recover anything from his co-heirs on account of their property, he can properly proceed against the purchaser of the right of succession, either on the ground of the stipulation, or on that of sale, since it is manifest that all the money was paid by him on account of the estate, for the same principle applies as in a suit for partition, by which each of the heirs can recover nothing more than what he expended in the capacity of heir.

19. The Same, Digest, Book XXV.

It makes a great deal of difference whether a claim is sold under some condition, or whether the obligation is incurred under a condition and the sale is absolute. In the first instance, if the condition is not fulfilled, the sale is void; in the second, the sale is made as soon as contracted; for, if Titius owes you ten aurei under some condition, and I purchase his note from you, I can immediately bring an action on sale to compel you to release him.

20. Africanus, Questions, Book VII.

If you should sell me your right to the succession of Lucius Titius, and you afterwards become the heir of his debtor, you will be liable to an action on sale.

(1) This is much more simple in the case where a party becomes the heir of his creditor, and sells his right of succession to the estate.

21. Paulus, Questions, Book XVI.

A vendor sold to a party his right of succession to an estate, and agreed by a stipulation to transfer to him everything belonging to the estate. The question arose as to what he ought to deliver in accordance with the stipulation; for a stipulation is, by no means, doubly binding, so that both the property and the price are due. And, in fact, if the party afterwards sold the property, and the stipulation was entered into, we think that the price is included in the stipulation. If, however, the stipulation was made beforehand, and the party then obtained the property, in this instance, he will owe the property. If he should sell a slave, and the latter died, would he owe the price of said slave? If he who had promised Stichus should sell him, the slave being dead at the time, he would not owe the price if he had not been in default.

Where, however, I sold the right of succession to an estate, and afterwards disposed of property belonging to the same, it will be held that I was transacting the business of the purchaser, rather than that of the estate. But this does not apply to a case where any particular property is concerned, for if I sell you a slave, and, before he is delivered, I sell him again to a third person, and receive the price, and the slave dies; let us consider whether I do not owe you something on account of the purchase, since I was not in default in making delivery, for the price of the slave that was sold to the second purchaser was not collected on account of the property, but on account of the transaction; and hence the result is just as if I had not sold the slave to another, for I will owe you the property, and not the right of action against the second purchaser.

Where, however, a right to the succession of an estate is sold, it is held to be tacitly agreed that if I do anything as heir, I must make it good to the purchaser, in the same way as if I was transacting his business; just as the vendor of a tract of land is obliged by considerations of good faith to surrender the crops, even though he were not at all to blame for neglecting to harvest crops belonging to another, unless he could be called to account for negligence.

But what if I sold property while another party was in possession, and I accepted the damages appraised, would I owe the party the property or the price of the same? I would certainly owe him the property, for I would not be compelled to transfer to him my rights of action but the property itself. If I was deprived of the property by force, or had been condemned to pay double damages on account of an action for theft, this would not in any way affect the purchaser, for if the vendor ceased to hold possession of the property without his fault, he would be obliged to assign his rights of action and also the damages he received, but not the property; and in case a building was consumed by fire, he ought to transfer the ground on which it stood.

22. Scævola, Opinions, Book II.

The vendor of the right of succession to an estate received a portion of the price, but the purchaser did not pay him the remainder. The question arose whether the property belonging to the succession could be held on the ground of pledge? I answered that there was nothing in the facts stated to prevent it from being so held.

23. Hermogenianus, Epitomes of Law, Book II.

The vendor of a claim which he has against a principal debtor is obliged to transfer every right of action arising out of the same, not only against the debtor himself, but also against the sureties of said claim, unless it was otherwise agreed upon.

(1) The vendor of a claim is compelled to deliver intact to the purchaser whatever he has obtained, either by way of set-off, or through collection.

24. Labeo, Last Works, Epitomes of Javolenus, Book IV.

You sold your right of succession to the estate of Cornelius; then Attius (to whom Cornelius bequeathed a legacy with which you, as heir, were charged) before he received the legacy from the purchaser, died, making you his heir. I think that an action on sale can properly be brought by you in order that payment of the legacy may be made to you, because the right of succession was sold at a lower price in order that the purchaser might pay the legacy; nor does it make any difference whether the money was due to Attius, who appointed you his heir, or to the legatee.

25. The Same, Probabilities, Book II.

Where the right of succession to an estate is sold with the exception of a tract of land belonging thereto, and then the vendor acquires something on account of said tract of land, he must surrender it to the purchaser of the right of succession. Paulus says that, in an instance of this kind, inquiry must always be made as to the intention of the parties. If, however, this cannot be ascertained, the vendor must transfer the property which has been acquired by him in this way to the purchaser; for it appears to have come into his hands on account of the succession, and not otherwise; just as if in disposing of the succession he had not excepted the said tract of land.

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TITLE V. CONCERNING THE RESCINDING OF A SALE, AND WHEN IT IS PERMITTED TO WITHDRAW FROM A PURCHASE.

1. Pomponius, On Sabinus, Book XV.

Celsus, the younger, was of the opinion that if a son under paternal control should sell me property which formed part of his peculium, even though an agreement was made that the sale should be annulled, it ought to be entered into between the father, the son, and myself; for if I made the agreement with the father alone, the son would not be released from liability; and it was asked whether such a contract would not be absolutely void, or whether, in fact, I would not be released and the son remain bound; as, for instance, in the case where a ward made a contract without the authority of his guardian, he himself would be released, but the party with whom he made the contract would not be. For what Aristo stated is not true, namely, that a contract could be entered into so that only one of the contracting parties would be liable, because one of them cannot annul an agreement for a sale; therefore, if the contract is renewed by one party, it is held that such an agreement is not valid. It must, however, be said that where a father makes a contract, and the other party is released from liability, the son will also be released at the same time.

2. The Same, On Sabinus, Book XXIV.

If, after I have purchased something from you, I again purchase it from you at a higher or a lower price, we are understood to have annulled the first sale; for the sale is still held to be incomplete by our agreement while matters remain unchanged, and thus the subsequent sale will stand, just as if no other had preceded it. But we cannot apply the same principle if the sale is renewed after the price was paid, because after it was paid we could not render the sale incomplete.

3. Paulus, On the Edict, Book XXXIII.

Purchase and sale are contracted by common consent, and so they can also be rescinded by common consent before the transaction has been concluded. Therefore, the question arose as to whether the obligation could be rescinded by the mere will of the parties, if the purchaser has accepted a surety, or the vendor had entered into a stipulation. Julianus says that then, indeed, an action on sale would not lie, because exceptions based on the contract are included in a bona fide agreement. It should be considered, however, whether an exception would be available to release the surety. I am of the opinion that if the principal should be released, the surety will be also. The same rule applies where, if the vendor institutes proceedings on the ground of the stipulation, he can be barred by an exception. The law is also the same where the purchaser has included the delivery of the property in the stipulation.

4. Paulus, Notes on the Digest of Julianus, Book VIII.

Where a contract was for the purchase of a toga, or a dish, and the vendor agreed that one of said articles should not be sold, I think that only the obligation with reference to said article is rescinded.

5. Julianus, Digest, Book XV.

Where the purchaser released the vendor or the vendor released the purchaser from liability, it seems to be the intention of both parties that the transaction should be at an end; and the result is the same as if it had been agreed between them that neither should claim anything from the other. It is, in this case, however, more evident, that the release is not valid on account of its nature, but through the force of the agreement.

(1) A sale is annulled by the mere agreement of the parties, if the transaction has not been concluded.

(2) Where a slave that has been sold dies, the sale is held to be in the same condition as if he had been delivered; that is to say, the vendor is released from liability, and the loss of the slave must be borne by the purchaser. Wherefore, unless some other lawful agreement has been entered into, actions on purchase and sale will lie.

6. Paulus, On the Edict, Book II.

If it was agreed between the parties that the property which was sold be returned within a certain time, if it did not suit, Sabinus thinks that an action on purchase will lie, or that one in factum, resembling an action on purchase, should be granted.

7. The Same, Questions, Book V.

If I purchase a second time, under a condition, something which I have already purchased absolutely, the subsequent purchase is void.

(1) Where a ward personally makes a contract without the authority of his guardian, and afterwards makes a purchase with his consent, although the vendor is already bound by a contract with him, still, because the ward is not liable, the sale is renewed in order that they may be mutually bound. If the authority of the guardian was interposed in the first place, and afterwards the ward made a purchase without his authority, the second purchase is void.

The question may also be raised if the purchase can be annulled, where an agreement was entered into by the ward without the authority of his guardian, since such an agreement has the same effect as if the ward had, in the first place, made the purchase without the authority of his guardian, and therefore he himself is not liable; but if he brings an action for the property, can the vendor retain it until it is paid for? It may reasonably be held, however, that since the purchase was properly contracted for in the beginning, it is hardly consistent with good faith that an agreement should be adhered to if, by means of it, the other party should be taken at a disadvantage; and this is especially the case if the latter was misled by a plausible error.

8. Scævola, Opinions, Book II.

Titius, the agent of Seius, was appointed the heir of the latter at his death, and Titius, not being aware that he was dead, sold a tract of land through a slave belonging to the estate, and signed his name as agent. The question arose whether the agent could have annulled the sale, if he had known of the death before the purchase was concluded? The answer was that if Titius himself had not sold the property, he would not be liable to a civil action, for the reason that he signed the contract of the slave who made the sale, but that he would be liable to a Prætorian action in the name of said slave.

9. The Same, Digest, Book IV.

A certain tract of land which belonged to Lucius Titius was sold on account of a public tax. Lucius Titius, having acknowledged that he was the debtor, said that he was ready to pay the whole of the tax; and, as the sale of the property was not sufficient to pay the entire amount, the Governor of the province rescinded the sale, and ordered the land to be restored to Lucius Titius. The question arose whether, after the decision of the Governor and before the land was restored, it was included in the property of Lucius Titius? The answer was that this was not the case before the price had been refunded to the purchaser, or if the price had not yet been paid by him before the claim for taxes was satisfied.

10. The Same, Digest, Book VII.

Seius bought a tract of land from Lucius Titius under the condition that the property would remain unsold if payment was not made by a certain time. Seius, having paid a portion of the price at once, and the vendor having died, he was appointed guardian of the minor children of Titius, along with others, but did not pay the remainder of the price to his fellow-guardians, in compliance with the contract, and did not place the amount among the assets of the guardianship.

The question arose whether the purchase was void. The answer was that, in accordance with the facts stated, the sale was held to be of no effect.

(1) The purchaser of certain lands, suspecting that Numeria and Sempronia would raise a controversy with reference to the sale of the same, agreed with the vendor that a certain portion of the price should remain in his hands until a surety should be furnished him by the vendor. The vendor afterwards inserted the following provision into the contract, namely: "That if all the money was not paid by a certain time, and the vendor did not wish the lands to be sold, they would remain unsold." In the meantime, the vendor gained his case against one of his female adversaries, and made a compromise with the other, so that the purchaser might obtain possession of the lands without any dispute.

The question arose, as no surety was furnished, and the entire sum of money was not paid at the appointed time in accordance with the terms of the contract, whether the land remained unsold? The answer was that if the agreement had been that the money should not be paid before a surety had been furnished on account of the sale, and nothing had been done by the purchaser to prevent the execution of the contract, the latter portion of the same could not be enforced.

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TITLE VI. CONCERNING THE RISK AND ADVANTAGES ATTACHING TO PROPERTY SOLD.

1. Ulpianus, On Sabinus, Book XXVIII.

If wine should become sour after having been sold, or should undergo any other defect, the purchaser must bear the loss; just as if it had been spilled on account of the vessels in which it was contained being broken, or for some other reason. If, however, the vendor assumes the risk, he must do so for the time during which he subjects himself to it; but where he did not designate the time, the wine will be at his risk until it is consumed, because, when this is done, the sale is then entirely concluded. Therefore, whether it is agreed that the wine shall be at his risk or not, he will be responsible for it until it is used up. If, however, before it is consumed, the vessels or cask containing it are sealed by the purchaser, we hold that the wine will still be at the risk of the vendor, unless some other agreement is made.

(1) The vendor must also be responsible for the safe-keeping of the wine until it is measured, for before it is measured it is, to a certain extent, not considered to be sold. After the measurement has been made, it ceases to be at the risk of the vendor, and, even before it is measured, he will be released from responsibility if he did not sell it by measure, but sold it by jars or by casks.

(2) Where a cask has been sealed by the purchaser, Trebatius says that it is held to have been delivered to him; Labeo, however, holds the contrary. The opinion of the latter is correct, for it is customary to seal a cask in order that the wine may not be changed, rather than to consider that it is delivered at the time.

(3) The vendor has a right to pour out the wine if he appointed a certain time for it to be measured, and this is not done on the day which was designated. He should not, however, pour it out before notifying the purchaser, in the presence of witnesses, either to remove the wine, or warning him that if he does not do so he will pour it out. It will be more praiseworthy, however, if he should not pour it out when he had a right to do so. Hence he can demand some compensation for the use of the casks, but only if it is to his interest for the casks which contained the wine to be empty; as, for example, if he was about to lease them, or if it was necessary for him to lease others instead.

It is, however, more convenient to lease other vessels, and not to deliver the wine until the rent of the others has been paid by the purchaser, or to sell the wine in good faith; that is to say, to manage to do everything without inconveniencing one's self, so that the least possible loss may result to the purchaser.

(4) If you buy wine in casks, and nothing has been agreed upon as to the time of its delivery, the intention will be held to be that the wine shall be drawn off before the casks will be needed for the next vintage. If they are not emptied by that time, the course adopted by the ancients should be taken; that is to say, the vendor should measure the wine by means of a basket, and let it run away, for the ancient authorities established this rule on account of the measurement, so that the amount of the measurement would not be apparent, but that the loss sustained by the purchaser would be known.

2. Gaius, Daily Occurrences, Book II.

The following also is true, namely: if the vendor has need of the vessels for the new vintage, and he is a merchant who is in the habit of purchasing and selling wine, the time must be considered when the wine can conveniently be removed from the possession of the vendor.

(1) Moreover, let us see in what way the vendor must take care of the wine before the time appointed to measure it arrives; must he exercise exact or ordinary diligence, or is he only liable for fraud? I think that the vendor should merely exercise ordinary diligence, and is excusable in case of unavoidable accident or the display of superior force.

3. Paulus, On Sabinus, Book V.

The vendor must exert the same care that he should do where articles are loaned for use; that is to say, he must exercise more exact diligence than he would with reference to his own property.

4. Ulpianus, On Sabinus, Book XXVIII.

If anyone should sell his wine, and state that it must be tasted within a certain time, and he, afterwards, was to blame for this not being done; should the vendor bear the risk of the sourness or mould of the wine, only for the time which had passed before the day which was fixed? Or would he also be liable after the time had elapsed; or, if the wine was spoiled after that time, must the vendor assume the risk? Or should it rather be held that the sale was concluded, since it had been made under a condition, that is to say, that the wine should be tested before a certain date? The intention of the parties is a matter of importance. I think, however, that if the intention cannot be ascertained, it should be held that the purchase still subsists, and that the vendor must assume the risk even after the day appointed for tasting the wine has gone by, because this was caused by himself.

(1) If the wine is sold in bulk, the vendor is only responsible for its custody; and from this it is apparent that if it is not sold under the condition of being tasted, the vendor will not be held liable for its sourness, or its mould, but the purchaser must bear the entire risk. It is, however, unusual for anyone to purchase wine without tasting it; and therefore if no day has been appointed for that purpose, the purchaser can taste it when he pleases, and up to the time when he does so, the vendor must be responsible for its sourness or mould; for when the day for tasting it has been fixed, it renders the condition of the purchaser better.

(2) Where wine has been sold in bulk, its custody ceases when the time for its removal arrives; and this must be understood to apply when the time is mentioned. If, however, it should not be mentioned, it must be considered whether the vendor is required to take care of it indefinitely. The better opinion is (in accordance with what we have explained above) that either the intention of the parties with reference to the time should be ascertained, or the purchaser should be notified to remove the wine. It is certain that the wine ought to be removed before the casks are required for the vintage.

5. Paulus, On Sabinus, Book V.

If it was the fault of the purchaser that the wine was not removed at the appointed time, the vendor is not obliged to be responsible for it afterwards, unless the delay was caused by fraudulent intent on his part. If, for example, a hundred jars of wine in a certain cellar were sold, the vendor must bear the risk until they are measured, unless the purchaser was to blame for the delay.

6. Pomponius, On Sabinus, Book IX.

If I purchase certain wine, that which is sour and mouldy being excepted, Proculus says that, although this exception is made for the benefit of the purchaser, if he is willing to accept wine that is acid, still, acid and mouldy wine will not be included in the sale; for whatever the purchaser is not willing to accept, he should not be compelled to take, for this is unjust, and the vendor should not be permitted to sell the wine to another.

7. Paulus, On Sabinus, Book V.

If, after a sale, an addition is made to land by alluvial deposit, or its amount is diminished from the same cause, the purchaser will enjoy the advantage, or suffer the inconvenience. For if, after the sale, the entire field is covered by a river, the purchaser must bear the loss, and therefore, in the same manner, he is entitled to any benefit arising therefrom.

(1) Everything that is sold must be conveyed with the land, unless it has been agreed upon that this should not be done. Whatever cannot be measured must also be transferred, if this was the understanding; as, for instance, highways, boundaries, and groves adjoining the premises.

Where, however, nothing was said on the subject, these need not be transferred; and therefore it is customary to expressly provide that groves, and public highways which are in the tract of land shall all be measured, and included in the transfer.

8. The Same, On the Edict, Book XXXIII.

It is necessary to ascertain when the sale is complete, for we will then know who must be responsible for the risk; as, when the sale has been perfected, the purchaser must assume it. If the quality and quantity of the property to be sold are determined, as well as the price of the same, and it is sold without any condition, the transaction is complete. If, however, it is sold under a condition, and the condition should not be complied with, the sale is void, just as in the case of a stipulation. Proculus and Octavenus say that the property is at the risk of the purchaser as soon as the condition is complied with, and Pomponius approves this opinion in the Ninth Book. If, however, while the condition is still pending, either the purchaser or the vendor should die, it is established that if the condition is fulfilled, their heirs will also be bound, just as if the transaction had been concluded with reference to some time that had passed.

But, if the property is delivered while the condition is pending, the purchaser, as such, cannot acquire it by usucaption, and he can recover any of the price which he may have paid, while the crops gathered during the intermediate time will belong to the vendor; in the same way as stipulations and conditional legacies are terminated if, the property should be destroyed while the condition remains unfulfilled. It is clear that if the property survives, although in a damaged condition, the purchaser must bear the loss.

(1) Where a sale is made in the following terms: "This slave is sold whether a certain ship does, or does not arrive from Asia." Julianus is of the opinion that the sale is instantly concluded, since it is certain that the contract is complete.

(2) If you sell me the usufruct of certain property, it makes a difference whether you merely dispose of the right of using and enjoying it, which alone belongs to you, or whether, if you own the property, you sell me the usufruct of the same; for, in the first instance, even if you should immediately die, your heir will owe me nothing, but if you live, the right will pass to my heir. In the second instance, nothing will pass to my heir, but your heir will incur the obligation.

9. Gaius, On the Provincial Edict, Book X.

If, after the examination of a tract of land, and before the contract of sale is made, the trees on said tract are overthrown by the force of the wind, the question arises whether they, also, should be delivered to the purchaser? The answer is that they should not, because he did not purchase them, since before he bought the land they ceased to be a part of it.

Where, however, the purchaser was not aware that the trees had been overthrown, but the vendor knew it and did not inform him, he will be liable for damages to the amount of interest of the purchaser, provided the sale takes place.

10. Ulpianus, Disputations, Book VIII.

Where, in a conditional sale, it was also agreed that the property should remain at the risk of the purchaser, I think that the agreement will be valid.

(1) Scævola says in a note on the Seventh Book of Julianus, that a purchaser cannot bring an action for the recovery of land which has been sold, when, before its measurement was taken, a portion of said land was destroyed by an inundation, or by an earthquake, or by any other accident.

11. Alfenus Verus, Digest, Book II.

Where a house which has been sold is burned, as a fire cannot take place without someone being responsible, what is the law? The answer is that, because a fire can take place without the fault of the head of the household, if it was not caused by the negligence of his slaves, the master will not necessarily be to blame.

Hence, if the vendor exercises the same diligence in taking care of the house as thrifty and diligent men are accustomed to do, and any accident should happen, he will not be responsible.

12. Paulus, Epitomes of the Digest of Alfenus, Book III.

The Ædile broke up some beds which a party had purchased, and which had been left on the highway. If they had been delivered to the purchaser, or if he was to blame for their not having been delivered, he must bear the loss.

13. Julianus, On Urseius Ferox, Book III.

The purchaser would be entitled to an action under the Lex Aquilia against the Ædile, if he acted illegally; or he will certainly have an action on sale against the vendor, to compel him to assign to him the rights of action which he has against the Ædile.

14. Paulus, Epitomes of the Digest of Alfenus, Book III.

If the beds had not been delivered, and the purchaser had not prevented their delivery by delay, the loss must be borne by the vendor.

(1) Where materials that have been purchased are lost by theft, after delivery, it is held that the purchaser must bear the loss; otherwise, the vendor must do so. Timbers are considered to have been delivered as soon as the purchaser has marked them.

15. Gaius, Daily Occurrences, Book II.

Where wine in casks is sold, and it is spoiled on account of its nature, before it is removed by the purchaser, and the vendor has vouched for the good quality of the wine, he will be liable to the purchaser; but if he said nothing with reference to this, the purchaser must bear the loss, either because he did not taste the wine, or, if he did taste it, he formed an incorrect opinion, and has only himself to blame.

It is clear that if the vendor knew that the good quality of the wine would not last until the day when it was to be removed, and did not notify the purchaser, he will be liable to the extent of the interest of the latter in being warned.

16. Javolenus, On Cassius, Book VII.

Where the purchaser of a slave asks permission to hire him until he can pay his price, he will acquire nothing through the services of said slave, since he is not held to be delivered whose possession is retained by the vendor through hiring him. The purchaser will be responsible for the slave, where anything happens to him without the fraud of the vendor.

17. Pomponius, On Quintus Mucius, Book XXXI.

It must be noted that, as soon as the purchaser begins to be in default, the vendor will be responsible, not for negligence, but only for fraud. If both vendor and purchaser should be in default, Labeo says that the purchaser will be more prejudiced thereby than the vendor.

It must, however, be considered, whether the party who is last in default, is not the more prejudiced, for what would be the case if I notify the vendor, and he does not deliver the property which I bought, and then, when he afterwards tenders it, I refuse to accept it? It is clear that, in this instance I should be the one to suffer by the default. But if the default was caused by the purchaser, and then, while everything was intact, the vendor should be in default when he was able to make the delivery, it is only just that he should suffer by the later delay.

18. Papinianus, Opinions, Book III.

Where the obligation of furnishing a lodging to freedmen is terminated by their death, the purchaser of the property will not be liable to the vendor on this account; if no other agreement was made than that a lodging should be furnished the freedmen in compliance with the will of the deceased, in addition to the price paid.

(1) Where a controversy arises, with reference to the ownership of property, before the price is paid; the purchaser is not compelled to pay it, unless solvent securities against his eviction are furnished by the vendor.

19. Hermogenianus, Epitomes of Law, Book II.

Where the purchaser is in default to the vendor for the payment of the price, he must only pay him interest, and he will not be liable for anything that the vendor might have obtained, if there had been no delay; as, for instance, if the vendor was a merchant, and the price having been paid, he could have gained more from the sale of his merchandise than from the interest.

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TITLE VII. CONCERNING THE REMOVAL OF SLAVES, AND WHERE A SLAVE IS SOLD UNDER THE CONDITION OF BEING MANUMITTED, OR THE CONTRARY.

1. Ulpianus, On the Edict, Book XXXII.

Where a slave is sold under the condition that he is not to remain in a certain place, the party who sold him under this condition can remit that part of the contract, and allow him to remain at Rome. Papinianus says in the Third Book that this condition is to be observed on account of the safety of the master, to prevent his being exposed to danger.

2. Marcianus, Public Affairs, Book II.

Where a slave is sold on condition of his being removed from Italy, he can remain in a province unless this was expressly prohibited.

3. Paulus, On the Edict, Book L.

Where a slave is sold under the condition that he shall be manumitted within a certain time, if he is not manumitted, he becomes free; notwithstanding that the party who sold him may still adhere to his original intention. It is not necessary to ascertain the wish of the heir.

4. Marcellus, Digest, Book XXIV.

If a minor under twenty years of age sells you a slave and delivers him, under the condition that you will manumit him, the transfer is of no effect; even though he may have delivered him with the intention that, when he had reached the age of twenty, you should manumit him; for it makes very little difference if the date of his freedom is deferred, for the law opposes a provision of this kind as not being well founded.

5. Papinianus, Questions, Book X.

Where a slave is forbidden by an agreement with the vendor to reside in the suburbs of a certain city, he is also held to be forbidden to reside in the city itself. And, indeed, although this has been prescribed by the Edicts of the Emperors, its meaning is obvious, for he who is deprived of a residence in the less important parts of a city, cannot enjoy one in the more important parts of the same.

6. The Same, Questions, Book XXVII.

Where a vendor takes security from a purchaser that he will not manumit a female slave, or subject her to prostitution, and, if any act is committed in violation of this provision she can be recovered by her master or considered free, and a penalty be demanded on the ground of a stipulation; certain authorities hold that an exception based on bad faith can be pleaded, but Sabinus thinks that this cannot be done. Reason, however, suggests that a stipulation cannot legally stand, if the condition, "That she should not be manumitted," is left out, for it is incredible that one should have intended to have manumitted a slave, and not have had in mind an act which would accomplish it.

But where it is provided that the slave shall not be subjected to prostitution, there is no reason why the penalty should not be sued for and collected, as the purchaser would have brought disgrace upon the slave and impugned the intentions of the vendor at the same time; for, leaving the stipulation out of consideration altogether, it has been established that an action on sale will lie.

(1) Where a purchaser either commits, or does not commit an act contrary to the provisions governing the sale, we have sometimes decided that the vendor cannot bring an action on sale to have him punished, unless the vendor had a pecuniary interest in the matter, as, for example, because he himself had promised a penalty; but it is not expedient to believe that a good citizen would hold that it was to the interest of the vendor to have his rage appeased in this way. The opinion of Sabinus, however, induces me to hold the contrary, for he thinks that an action can properly be brought, as the slave seems to have been sold for a lower price on account of the condition.

7. The Same, Questions, Book X.

A slave was sold under the condition that he should not remain in Italy, and it was agreed between the parties, without a stipulation, that if the condition was not complied with the purchaser should pay a penalty. It is difficult to conclude that the vendor can bring an action on this ground through a desire for vengeance; but he can properly do so if the condition is not observed, and liability for the penalty promised should attach. The result of this will be, that he can only bring suit for what the purchaser is obliged to pay, for whatever is in excess of that is a penalty, and not an attempt to recover the property.

If, however, the agreement had been that the slave should not be removed by way of penalty, an action can properly be brought on the ground of affection; nor do these two cases seem to be antagonistic, since it is the interest of one man that another should be benefited; for, in fact, the indignity of the penalty which is not inflicted possesses only the attribute of cruelty.

8. The Same, Questions, Book XXVII.

The question arose whether, where a man sold his own slave, and directed that he should be manumitted within a certain time, and afterwards changed his mind, and the purchaser, nevertheless, manumitted him, he would be entitled to any action on this ground. I stated that the right of action on the ground of sale was extinguished if the slave was manumitted, or the vendor changed his mind.

9. Paulus, Questions, Book V.

Titius sold a slave on condition that if he remained at Rome he would be permitted to arrest him. The purchaser sold him to another party under the same condition, and the slave escaped from the second purchaser, and remained at Rome. I ask whether he could be arrested, and if this was the case, by whom? I answered, there was no doubt that, as he was a fugitive, nothing would be held to have been done contrary to the condition, as he had no right to leave his master; nor, merely because he was a fugitive, could he establish his residence at Rome. If, however, he remained there with the consent of the second purchaser, the party who imposed the condition should be preferred, and the second vendor is only held to have had recourse to it for the purpose of warning the purchaser, and releasing himself from liability; for he could, in no way deprive his vendor of the benefit given by the condition, as if he promised to pay a penalty he would be liable even though he himself had also stipulated for the same penalty. But where a penalty is promised, two actions will lie, and the slave can be arrested.

If, however, the first vendor made the sale under the condition that if the slave became a prostitute she should be free, and the second one that she could be seized; freedom will be preferred to the right of arrest. It is clear that if the first condition included the right of seizure, and the last one that of freedom, it must be held that the one granting her freedom will have the preference; since both conditions are added for the benefit of the slave, and, as arrest by the vendor releases her from harm, so freedom produces the same effect.

10. Scævola, Digest, Book VII.

A certain man sold Pamphilus and Stichus, and inserted in the contract of sale that, as he had sold the said slaves at a low price, they should be subject to no servitude but that of Seius, and that, after his death, they should remain in freedom.

The question arose whether the slaves, concerning whom this agreement had been made between the purchaser and the vendor, would become free by mere operation of law, after the death of the purchaser? The answer was that, in accordance with the Constitution of the Divine Hadrian, promulgated with reference to this point, if Pamphilus and Stichus, the slaves in question, were not manumitted, they would not become free. Claudius says that the Divine Marcus decided that where a condition of freedom was inserted in the contract of sale, the slaves would become free in six months, even if they were not manumitted, although the vendor had deferred their freedom until the death of the purchaser.

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