1Paulus, 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. 1But 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. 2Purchase 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.

2Ulpianus, On Sabinus, Book I. A purchase cannot be contracted between father and son, except where it has reference to castrense peculium. 1No 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.

3The 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.

4Pomponius, 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:

5Paulus, On Sabinus, Book V. Because a freeman is not easily distinguished from a slave.

6Pomponius, 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. 1Where 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. 2A 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.

7Ad Dig. 18,1,7ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.Ulpianus, On Sabinus, Book XXVIII. Ad Dig. 18,1,7 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Noten 4, 6.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. 1A 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. 2Where 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.

8Pomponius, On Sabinus, Book IX. Ad Dig. 18,1,8 pr.BOHGE, Bd. 1 (1871), S. 141: Verhaftung des Verkäufers aus einer emtio rei speratae.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. 1A 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.

9Ulpianus, 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. 1If 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. 2Hence, 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.

10Ad Dig. 18,1,10ROHGE, Bd. 22 (1878), Nr. 90, S. 392: Error in substantia, in qualitate, in bonitate.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.

11Ulpianus, 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? 1If 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.

12Pomponius, 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.

13The 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.

14Ad Dig. 18,1,14ROHGE, Bd. 22 (1878), Nr. 90, S. 392: Error in substantia, in qualitate, in bonitate.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.

15Paulus, 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. 1A purchaser can take advantage of his ignorance, provided it is not that of an extremely careless man. 2Ad Dig. 18,1,15,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 72, Note 10.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.

16Pomponius, 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. 1It is no impediment to the sale, however, that only the usufruct of the property in question has been enjoyed by the purchaser.

17Paulus, On the Edict, Book XXXIII. It is, nevertheless, the duty of the judge, in a case of this kind, to reduce the price.

18Pomponius, 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. 1Where 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.

19The 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.

20Ad Dig. 18,1,20ROHGE, Bd. 23 (1878), Nr. 30, S. 87: Grenze zwischen Kauf- und Werkverdingung. Anfertigung und Ausstellung einer Maschine, Lieferung der Materialien.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 13.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.

21Paulus, 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.

22Ulpianus, 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.

23Ad Dig. 18,1,23ROHGE, Bd. 16 (1875), Nr. 43, S. 150: Verpflichtungen aus dem Verkaufe eines nicht existirenden Kaufobjekts. Eigener Wechsel an eigene Ordre. Einfluß des Irrthums.Paulus, On Sabinus, Book V. The purchaser can revoke what he has paid on the ground of its not having been due.

24Ulpianus, 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.

25The 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. 1The 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.

26Pomponius, 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.

27Paulus, 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.

28Ulpianus, 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.

29The 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.

30The 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.

31Pomponius, 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.

32Ulpianus, 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.

33Pomponius, 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.

34Paulus, 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. 1A 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. 2We 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. 3Moreover, 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. 4The 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. 5It 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. 6If 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. 7A 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.

35Gaius, 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. 1It 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.” 2Certain 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. 3If 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. 4Ad Dig. 18,1,35,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 389, Note 8d.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. 5With 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. 6Ad Dig. 18,1,35,6ROHGE, Bd. 5 (1872), S. 406: Beim Kaufe nach Gewicht ist für die Preisbestimmung der Zeitpunkt der Ablieferung entscheidend.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. 7Where 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. 8Where 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.

36Ulpianus, 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.

37The 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.

38The 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.

39Julianus, 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. 1It 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.

40Paulus, 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. 1In 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. 2A 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. The field was found to contain twenty jugera, and it was held that payment for twenty was due. 3The 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. 4Where 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. 5A 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. 6The wheel also by which the water is drawn is a part of the building as well as the bucket.

41Julianus, 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. 1You 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.

42Marcianus, 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.

43Florentinus, 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. 1Ad Dig. 18,1,43,1ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.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. 2Ad Dig. 18,1,43,2ROHGE, Bd. 4 (1872), S. 319: Civilrechtlicher Dolus verübt durch Verschweigen von Thatsachen.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.

44Ad Dig. 18,1,44ROHGE, Bd. 16 (1875), Nr. 44, S. 155: Mehrheit von Gegenständen. Mehrheit von Rechtsgeschäften.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.

45Ad Dig. 18,1,45ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.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.

46Ad Dig. 18,1,46Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 440, Note 7.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.

47Ulpianus, 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,

48Paulus, On Sabinus, Book V. Even though they are outside the house.

49Ulpianus, 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.

50The 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.

51Paulus, 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.

52The 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.

53Gaius, 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.

54Paulus, 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.

55The 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.

56The 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.

57Paulus, 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. 1But 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. 2In 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. 3Where 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.

58Papinianus, 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.

59Celsus, 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.

60Marcellus, 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.

61The 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.

62Ad Dig. 18,1,62ROHGE, Bd. 16 (1875), Nr. 43, S. 150: Verpflichtungen aus dem Verkaufe eines nicht existirenden Kaufobjekts. Eigener Wechsel an eigene Ordre. Einfluß des Irrthums.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. 1Ad Dig. 18,1,62,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 307, Note 5; Bd. II, § 315, Note 7.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. 2Where 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.

63Javolenus, 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. 1Where 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.

64The 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.

65The 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.

66Pomponius, 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. 1Where 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. 2Quintus 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.

67The 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.

68Proculus, 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. 1Some 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. 2The 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.

69The 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.”

70Licinius 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.

71Papirius 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.”

72Papinianus, 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. 1Papinianus 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.

73The 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. 1Where 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.

74The 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.

75Ad Dig. 18,1,75ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufgeldes nicht baar, sondern in Actien.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.

76Paulus, 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. 1The 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.

77Javolenus, 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.

78Labeo, 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. 1You 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. 2A 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. 3Where 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.

79Ad Dig. 18,1,79ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufgeldes nicht baar, sondern in Actien.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.

80Labeo, 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. 1I 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. 2The 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. 3No 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.

81Scævola, Digest, Book VII. Ad Dig. 18,1,81 pr.ROHGE, Bd. 15 (1875), Nr. 20, S. 49: Verkauf einer Sache unter Compensation des Kaufgeldes mit einer Schuld des Verkäufers. Kauf, Hingabe an Zahlungsstatt?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. 1Lucius 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.