De lege commissoria
(Concerning the condicional annulment of a sale.)
1 Ulpianus libro vicensimo octavo ad Sabinum. Si fundus commissoria lege venierit, magis est, ut sub condicione resolvi emptio quam sub condicione contrahi videatur.
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 libro trigensimo quinto ad Sabinum. Cum venditor fundi in lege ita caverit: ‘si ad diem pecunia soluta non sit, ut fundus inemptus sit’, ita accipitur inemptus esse fundus, si venditor inemptum eum esse velit, quia id venditoris causa caveretur: nam si aliter acciperetur, exusta villa in potestate emptoris futurum, ut non dando pecuniam inemptum faceret fundum, qui eius periculo fuisset.
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 libro trigensimo ad edictum. Nam legem commissoriam, quae in venditionibus adicitur, si volet venditor exercebit, non etiam invitus.
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 Idem libro trigensimo secundo ad edictum. Si fundus lege commissoria venierit, hoc est ut, nisi intra certum diem pretium sit exsolutum, inemptus fieret, videamus, quemadmodum venditor agat tam de fundo quam de his, quae ex fundo percepta sint, itemque si deterior fundus effectus sit facto emptoris. et quidem finita est emptio: sed iam decisa quaestio est ex vendito actionem competere, ut rescriptis imperatoris Antonini et divi Severi declaratur. 1Sed quod ait Neratius habet rationem, ut interdum fructus emptor lucretur, cum pretium quod numeravit perdidit: igitur sententia Neratii tunc habet locum, quae est humana, quando emptor aliquam partem pretii dedit. 2Eleganter Papinianus libro tertio responsorum scribit, statim atque commissa lex est statuere venditorem debere, utrum commissoriam velit exercere an potius pretium petere, nec posse, si commissoriam elegit, postea variare. 3In commissoriam etiam hoc solet convenire, ut, si venditor eundem fundum venderet, quanto minoris vendiderit, id a priore emptore exigat: erit itaque adversus eum ex vendito actio. 4Marcellus libro vicensimo dubitat, commissoria utrum tunc locum habet, si interpellatus non solvat, an vero si non optulerit. et magis arbitror offerre eum debere, si vult se legis commissoriae potestate solvere: quod si non habet cui offerat, posse esse securum.
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. 1What 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. 2Papinianus 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. 3It 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. 4Marcellus, 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 libro quinto membranarum. Lege fundo vendito dicta, ut, si intra certum tempus pretium solutum non sit, res inempta sit, de fructibus, quos interim emptor percepisset, hoc agi intellegendum est, ut emptor interim eos sibi suo quoque iure perciperet: sed si fundus revenisset, Aristo existimabat venditori de his iudicium in emptorem dandum esse, quia nihil penes eum residere oporteret ex re, in qua fidem fefellisset.
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 Scaevola libro secundo responsorum. De lege commissoria interrogatus ita respondit, si per emptorem factum sit, quo minus legi pareretur, et ea lege uti venditor velit, fundos inemptos fore et id, quod arrae vel alio nomine datum esset, apud venditorem remansurum. 1Idem respondit, si ex lege inempti sint fundi, nec id, quod accessurum dictum est, emptori deberi. 2Post diem lege commissoria comprehensum venditor partem reliquae pecuniae accepit. respondit, si post statutum diem reliquae pecuniae venditor legem dictam non exercuisset et partem reliqui debiti accepisset, videri recessum a commissoria.
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. 1The 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. 2A 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 libro secundo iuris epitomarum. Post diem commissoriae legi praestitutum si venditor pretium petat, legi commissoriae renuntiatum videtur, nec variare et ad hanc redire potest.
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 Scaevola libro septimo digestorum. Mulier fundos Gaio Seio vendidit et acceptis arrae nomine certis pecuniis statuta sunt tempora solutioni reliquae pecuniae: quibus si non paruisset emptor, pactus est, ut arram perderet et inemptae villae essent. die statuto emptor testatus est se pecuniam omnem reliquam paratum fuisse exsolvere (et sacculum cum pecunia signatorum signis obsignavit), defuisse autem venditricem, posteriore autem die nomine fisci testato conventum emptorem, ne ante mulieri pecuniam exsolveret, quam fisco satisfaceret. quaesitum est, an fundi non sint in ea causa, ut a venditrice vindicari debeant ex conventione venditoris. respondit secundum ea quae proponerentur non commississe in legem venditionis emptorem.
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. The answer was that, in accordance with the facts stated, the purchaser had not committed any act in violation of the contract of sale.