De hereditate vel actione vendita
(Concerning the sale of an estate, or of a claim.)
1 Pomponius libro nono ad Sabinum. Si hereditas venierit eius, qui vivit aut nullus sit, nihil esse acti, quia in rerum natura non sit quod venierit.
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 libro quadragensimo nono ad Sabinum. Venditor hereditatis satisdare de evictione non debet, cum id inter ementem et vendentem agatur, ut neque amplius neque minus iuris emptor habeat quam apud heredem futurum esset: plane de facto suo venditor satisdare cogendus est. 1In hereditate vendita utrum ea quantitas spectatur, quae fuit mortis tempore, an ea, quae fuit cum aditur hereditas, an ea quae fuit cum hereditas venumdatur, videndum erit. et verius est hoc esse servandum quod actum est: plerumque autem hoc agi videtur, ut quod ex hereditate pervenit in id tempus quo venditio fit, id videatur venisse. 2Illud potest quaeri, si etiam impuberi sit substitutus is qui vendidit hereditatem testatoris, an etiam id, quod ex impuberis hereditate ad eum qui vendidit hereditatem pervenit, ex empto actioni locum faciat. et magis est, ne veniat, quia alia hereditas est: licet enim unum testamentum sit, alia tamen atque alia hereditas est. plane si hoc actum sit, dicendum erit etiam impuberis hereditatem in venditionem venire, maxime si iam delata impuberis hereditate venierit hereditas. 3Pervenisse ad venditorem hereditatis quomodo videatur, quaeritur. et ego puto, antequam quidem corpora rerum hereditariarum nactus venditor fuerit, hactenus videri ad eum pervenisse, quatenus mandare potest earum rerum persecutionem actionesque tribuere: enimvero ubi corpora nactus est vel debita exegit, plenius ad eum videri pervenisse. sed et si rerum venditarum ante hereditatem venditam pretia fuerit consecutus, palam est ad eum pretia rerum pervenisse. illud tenendum est cum effectu videri pervenisse, non prima ratione: idcirco quod legatorum nomine quis praestitit, non videtur ad eum pervenisse: sed et si quid aeris alieni est vel cuius alterius oneris hereditarii, pervenisse merito negabitur. sed et rerum ante venditionem donatarum pretia praestari aequitatis ratio exigit. 4Non tantum autem quod ad venditorem hereditatis pervenit, sed et quod ad heredem eius ex hereditate pervenit, emptori restituendum est: et non solum quod iam pervenit, sed et quod quandoque pervenerit, restituendum est. 5Sed et si quid dolo malo eorum factum est, quo minus ad eos perveniat, et hoc emptori praestandum est: fecisse autem dolo malo quo minus perveniat videtur, sive alienavit aliquid, vel etiam accepto quem liberavit vel id egit dolo malo, ne de hereditate adquireretur vel ne possessionem adipisceretur quam posset adipisci. sed et si non dolo malo, sed lata culpa admiserit aliquid, utique tenebitur: deperdita autem et deminuta sine dolo malo venditoris non praestabuntur. 6Illud quaesitum est, an venditor hereditatis ob debitum a filio suo qui in potestate eius esset servove ei, cuius hereditatem vendidisset, praestare debeat emptori. et visum est, quidquid dumtaxat de peculio filii servive aut in suam rem versum inveniatur, praestare eum debere. 7Solet quaeri, an et, si quid lucri occasione hereditatis venditor senserit, emptori restituere id debeat. et est apud Iulianum haec quaestio tractata libro sexto digestorum et ait, quod non [ed. maior debitum] <ed. minor debitur> exegerit, retinere heredem et quod non debitum solverit, non reputare: nam hoc servari, ut heres emptori non praestet quod non debitum exegerit, neque ab eo consequatur quod non debitum praestiterit. si autem condemnatus praestiterit, hoc solum heredi sufficit esse eum condemnatum sine dolo malo suo, etiamsi maxime creditor non fuerit is cui condemnatus est heres: quae sententia mihi placet. 8Non solum autem hereditarias actiones, sed etiam eas obligationes quas ipse heres constituit dicendum erit praestari emptori debere: itaque et si fideiussorem acceperit ab hereditario debitore, ipsam actionem quam habet heres praestare emptori debebit: sed et si novaverit vel in iudicium deduxerit actionem, praestare debebit hanc ipsam actionem quam nactus est. 9Sicuti lucrum omne ad emptorem hereditatis respicit, ita damnum quoque debet ad eundem respicere. 10Denique si rem hereditariam heres vendiderit ac per hoc fuerit condemnatus, non habet contra emptorem actionem, quia non ideo condemnatur quod heres esset, sed quod vendiderit. sed si pretium rei distractae emptori hereditatis dedit, videamus, an locus sit ex vendito actioni: et putem esse. 11Sive ipse venditor dederit aliquid pro hereditate sive procurator eius sive alius quis pro eo, dum negotium eius gerit, locus erit ex vendito actioni, dummodo aliquid absit venditori hereditatis: ceterum si nihil absit venditori, consequens erit dicere non competere ei actionem. 12Apud Iulianum scriptum est, si venditor hereditatis exceperit servum sine peculio et eius nomine cum eo fuerit actum de peculio et in rem verso, id dumtaxat eum consequi, quod praestiterit eius peculii nomine quod emptorem sequi debeat, aut quod in rem defuncti versum est: his enim casibus aes alienum emptoris solvit, ex ceteris causis suo nomine condemnetur. 13Quid ergo si servum cum peculio exceperit venditor hereditatis conventusque de peculio praestitit? Marcellus libro sexto digestorum non repetere eum scribsit, si modo hoc actum est, ut, quod superfuisset ex peculio, hoc haberet: at si contra actum est, recte repetere eum posse ait: si vero nihil expressim inter eos convenit, sed tantummodo peculii mentio facta est, cessare ex vendito actionem constat. 14Si venditor hereditatis aedes sibi exceperit, quarum nomine damni infecti promissum fuerat, interest quid acti sit: nam si ita excepit, ut damni quoque infecti stipulationis onus sustineret, nihil ab emptore consequeretur: si vero id actum erit, ut emptor hoc aes alienum exsolveret, ad illum onus stipulationis pertinebit: si non apparebit quid acti sit, verisimile erit id actum, ut eius quidem damni nomine, quod ante venditionem datum fuerit, onus ad emptorem, alterius temporis ad heredem pertineat. 15Si Titius Maevi hereditatem Seio vendiderit et a Seio heres institutus eam hereditatem Attio vendiderit, an ex priore venditione hereditatis cum Attio agi possit? et ait Iulianus: quod venditor hereditatis petere a quolibet extraneo herede potuisset, id ab hereditatis emptore consequatur: et certe si Seio alius heres exstitisset, quidquid venditor Maevianae hereditatis nomine praestitisset, id ex vendito actione consequi ab eo potuisset: nam et si duplam hominis a Seio stipulatus fuissem et ei heres exstitissem eamque hereditatem Titio vendidissem, evicto homine rem a Titio servarem. 16Si quid publici vectigalis nomine praestiterit venditor hereditatis, consequens erit dicere agnoscere emptorem et hoc debere: namque hereditaria onera etiam haec sunt. et si forte tributorum nomine aliquid dependat, idem erit dicendum. 17Quod si funere facto heres vendidisset hereditatem, an impensam funeris ab emptore consequatur? et ait Labeo emptorem impensam funeris praestare debere, quia et ea, inquit, impensa hereditaria esset: cuius sententiam et Iavolenus putat veram et ego arbitror. 18Cum quis debitori suo heres exstitit, confusione creditor esse desinit: sed si vendidit hereditatem, aequissimum videtur emptorem hereditatis vicem heredis optinere et idcirco teneri venditori hereditatis, sive cum moritur testator debuit (quamvis post mortem debere desiit adita a venditore hereditate) sive quid in diem debeatur sive sub condicione et postea condicio exstitisset, ita tamen, si eius debiti adversus heredem actio esse poterat, ne forte etiam ex his causis, ex quibus cum herede actio non est, cum emptore agatur. 19Et si servitutes amisit heres institutus adita hereditate, ex vendito poterit experiri adversus emptorem, ut servitutes ei restituantur. 20Sed et si quid venditor nondum praestiterit, sed quoquo nomine obligatus sit propter hereditatem, nihilo minus agere potest cum emptore.
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. 1Where 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. 2It 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. 3A 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. 4Again, 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. 5Moreover, 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. 6The 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. 7The 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. 8It 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. 9As 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. 10Hence, 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. 11Where 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. 12It 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. 13What 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 pecidium, it is established that an action on sale will not lie. 14Where 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. 15If 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. 16Where 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. 17If, 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. 18Where 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. 19Where 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. 20If, 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 libro vicensimo septimo ad Sabinum. Si venditor hereditatis exactam pecuniam sine dolo malo et culpa perdidisset, non placet eum emptori teneri.
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 libro trigensimo secundo ad edictum. Si nomen sit distractum, Celsus libro nono digestorum scribit locupletem esse debitorem non debere praestare, debitorem autem esse praestare, nisi aliud convenit,
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 libro trigensimo tertio ad edictum. et quidem sine exceptione quoque, nisi in contrarium actum sit. sed si certae summae debitor dictus sit, in eam summam tenetur venditor: si incertae et nihil debeat, quanti intersit emptoris.
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 Idem libro quinto quaestionum. Emptori nominis etiam pignoris persecutio praestari debet eius quoque, quod postea venditor accepit: nam beneficium venditoris prodest emptori.
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 Idem libro quarto decimo ad Plautium. Cum hereditatem aliquis vendidit, esse debet hereditas, ut sit emptio: nec enim alea emitur, ut in venatione et similibus, sed res: quae si non est, non contrahitur emptio et ideo pretium condicetur.
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 Iavolenus libro secundo ex Plautio. Quod si nulla hereditas ad venditorem pertinuit, quantum emptori praestare debuit, ita distingui oportebit, ut, si est quidem aliqua hereditas, sed ad venditorem non pertinet, ipsa aestimetur, si nulla est, de qua actum videatur, pretium dumtaxat et si quid in eam rem impensum est emptor a venditore consequatur.
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 libro trigesimo tertio ad edictum. Et si quid emptoris interest.
9 Paulus, On the Edict, Book XXXIII. And whatever interest the purchaser had in having the sale concluded.
10 Iavolenus libro secundo ex Plautio. Quod si in venditione hereditatis id actum est, si quid iuris esset venditoris, venire nec postea quicquam praestitu iri: quamvis ad venditorem hereditas non pertinuerit, nihil tamen eo praestabitur, quia id actum esse manifestum est, ut quemadmodum emolumentum negotiationis, ita periculum ad emptorem pertineret.
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 libro trigesimo secundo ad edictum. Nam hoc modo admittitur esse venditionem ‘si qua sit hereditas, est tibi empta’, et quasi spes hereditatis: ipsum enim incertum rei veneat, ut in retibus.
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 libro decimo ad edictum provinciale. Hoc autem sic intellegendum est, nisi sciens ad se non pertinere ita vendiderit: nam tunc ex dolo tenebitur.
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 libro quarto decimo ad Plautium. Quod si sit hereditas et si non ita convenit, ut quidquid iuris haberet venditor emptor haberet, tunc heredem se esse praestare debet: illo vero adiecto liberatur venditor, si ad eum hereditas non pertineat.
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 Idem libro trigesimo tertio ad edictum. Qui filii familias nomina vendidit, actiones quoque quas cum patre habet praestare debet. 1Si hereditas venierit, venditor res hereditarias tradere debet: quanta autem hereditas est, nihil interest,
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. 1Where 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 libro decimo ad edictum provinciale. nisi de substantia eius adfirmaverit.
15 Gaius, On the Provincial Edict, Book X. Unless the vendor has stated the amount.
16 Paulus libro trigesimo tertio ad edictum. Si quasi heres vendideris hereditatem, cum tibi ex senatus consulto Trebelliano restituta esset hereditas, quanti emptoris intersit teneberis.
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 libro quadragesimo tertio ad edictum. Nomina eorum, qui sub condicione vel in diem debent, et emere et vendere solemus: ea enim res est, quae emi et venire potest.
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 Iulianus libro quinto decimo digestorum. Si ex pluribus heredibus unus, antequam ceteri adirent hereditatem, pecuniam, quae sub poena debebatur a testatore, omnem solverit et hereditatem vendiderit nec a coheredibus suis propter egestatem eorum quicquam servare poterit, cum emptore hereditatis vel ex stipulatu vel ex vendito recte experietur: omnem enim pecuniam hereditario nomine datam eo manifestius est, quod in iudicio familiae erciscundae deducitur, per quod nihil amplius unusquisque a coheredibus suis consequi potest, quam quod tamquam heres impenderit.
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 Idem libro vicesimo quinto digestorum. Multum interest, sub condicione aliqua obligatio veneat an, cum ipsa obligatio sub condicione sit, pure veneat. priore casu deficiente condicione nullam esse venditionem, posteriore statim venditionem consistere: nam si Titius tibi decem sub condicione debeat et ego abs te nomen eius emam, confestim ex empto vendito agere potero, ut acceptum ei facias.
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 libro septimo quaestionum. Si hereditatem mihi Lucii Titii vendideris ac post debitori eiusdem heres existas, actione ex empto teneberis. 1Quod simplicius etiam in illa propositione procedit, cum quis ipse creditori suo heres exstitit et hereditatem vendidit.
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. 1This 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 libro sexto decimo quaestionum. Venditor ex hereditate interposita stipulatione rem hereditariam persecutus alii vendidit: quaeritur, quid ex stipulatione praestare debeat: nam bis utique non committitur stipulatio, ut et rem et pretium debeat. et quidem si, posteaquam rem vendidit heres, intercessit stipulatio, credimus pretium in stipulationem venisse: quod si antecessit stipulatio, deinde rem nactus est, tunc rem debebit. si ergo hominem vendiderit et is decesserit, an pretium eiusdem debeat? non enim deberet Stichi promissor, si eum vendidisset, mortuo eo, si nulla mora processisset. sed ubi hereditatem vendidi et postea rem ex ea vendidi, potest videri, ut negotium eius agam quam hereditatis. sed hoc in re singulari non potest credi: nam si eundem hominem tibi vendidero et necdum tradito eo alii quoque vendidero pretiumque accepero, mortuo eo videamus ne nihil tibi debeam ex empto, quoniam moram in tradendo non feci (pretium enim hominis venditi non ex re, sed propter negotiationem percipitur) et sic sit, quasi alii non vendidissem: tibi enim rem debebam, non actionem. at cum hereditas venit, tacite hoc agi videtur, ut, si quid tamquam heres feci, id praestem emptori, quasi illius negotium agam: quemadmodum fundi venditor fructus praestet bonae fidei ratione, quamvis, si neglexisset ut alienum, nihil ei imputare possit, nisi si culpa eius argueretur. quid si rem quam vendidi alio possidente petii et litis aestimationem accepi, utrum pretium illi debeo an rem? utique rem, non enim actiones ei, sed rem praestare debeo: et si vi deiectus vel propter furti actionem duplum abstulero, nihil hoc ad emptorem pertinebit. nam si sine culpa desiit detinere venditor, actiones suas praestare debebit, non rem, et sic aestimationem quoque: nam et aream tradere debet exusto aedificio.
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 Scaevola libro secundo responsorum. Hereditatis venditae pretium pro parte accepit reliquum emptore non solvente: quaesitum est, an corpora hereditaria pignoris nomine teneantur. respondi nihil proponi cur non teneantur.
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 libro secundo iuris epitomarum. Venditor actionis, quam adversus principalem reum habet, omne ius, quod ex ea causa ei competit tam adversus ipsum reum quam adversus intercessores huius debiti, cedere debet, nisi aliud actum est. 1Nominis venditor quidquid vel compensatione vel exactione fuerit consecutus, integrum emptori restituere compellatur.
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. 1The 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 libro quarto posteriorum a Iavoleno epitomatorum. Hereditatem Cornelii vendidisti: deinde Attius, cui a te herede Cornelius legaverat, priusquam legatum ab emptore perciperet, te fecit heredem: recte puto ex vendito te acturum ut tibi praestetur, quia ideo eo minus hereditas venierit, ut id legatum praestaret emptor, nec quicquam intersit, utrum Attio, qui te heredem fecerit, pecunia debita sit, an legatario.
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 Idem libro secundo pithanon. Si excepto fundo hereditario veniit hereditas, deinde eius fundi nomine venditor aliquid [ed. maior adquisit] <ed. minor adquisiit>, debet id praestare emptori hereditatis. Paulus: immo semper quaeritur in ea re, quid actum fuerit: si autem id non apparebit, praestare eam rem debebit emptori venditor, nam id ipsum ex ea hereditate ad eum pervenisse videbitur non secus ac si eum fundum in hereditate vendenda non excepisset.
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.