De rescindenda venditione et quando licet ab emptione discedere
(Concerning the rescinding of a sale, and when it is permitted to withdraw from a purchase.)
1 Pomponius libro quinto decimo ad Sabinum. Celsus filius putabat, si vendidisset mihi filius familias rem peculiarem, etiam, si conveniat ut abeatur ab ea venditione, inter patrem et filium et me convenire debere, ne, si cum patre solo pactus sim, filius non possit liberari et quaeratur, utrumne nihil agatur ex ea pactione an vero ego quidem liberer, filius maneat obligatus, sicuti, si pupillus sine tutoris auctoritate paciscatur, ipse quidem liberatur, non etiam qui cum eo pactus est. nam quod Aristo dixit posse ita pacisci, ut unus maneat obligatus, non est verum, quia pro una parte contrahentium abiri pacto ab emptione non possit: et ideo si ab una parte renovatus sit contractus, dicitur non valere eiusmodi pactionem. sed dicendum est patre paciscente et liberato adversario filium quoque obiter liberari.
1 Pomponius, On Sabinus, Book XV. Celsus, the younger, was of the opinion that if a son under paternal control should sell me property which formed part of his peculium, even though an agreement was made that the sale should be annulled, it ought to be entered into between the father, the son, and myself; for if I made the agreement with the father alone, the son would not be released from liability; and it was asked whether such a contract would not be absolutely void, or whether, in fact, I would not be released and the son remain bound; as, for instance, in the case where a ward made a contract without the authority of his guardian, he himself would be released, but the party with whom he made the contract would not be. For what Aristo stated is not true, namely, that a contract could be entered into so that only one of the contracting parties would be liable, because one of them cannot annul an agreement for a sale; therefore, if the contract is renewed by one party, it is held that such an agreement is not valid. It must, however, be said that where a father makes a contract, and the other party is released from liability, the son will also be released at the same time.
2 Idem libro vicensimo quarto ad Sabinum. Si quam rem a te emi, eandem rursus a te pluris minorisve emero, discessimus a priore emptione (potest enim, dum res integra est, conventione nostra infecta fieri emptio) atque ita consistit posterior emptio, quasi nulla praecesserit. sed non poterimus eadem ratione uti post pretium solutum emptione repetita, cum post pretium solutum infectam emptionem facere non possumus.
2 The Same, On Sabinus, Book XXIV. If, after I have purchased something from you, I again purchase it from you at a higher or a lower price, we are understood to have annulled the first sale; for the sale is still held to be incomplete by our agreement while matters remain unchanged, and thus the subsequent sale will stand, just as if no other had preceded it. But we cannot apply the same principle if the sale is renewed after the price was paid, because after it was paid we could not render the sale incomplete.
3 Paulus libro trigensimo tertio ad edictum. Emptio et venditio sicut consensu contrahitur, ita contrario consensu resolvitur, antequam fuerit res secuta: ideoque quaesitum est, si emptor fideiussorem acceperit, vel venditor stipulatus fuerit, an nuda voluntate resolvatur obligatio. Iulianus scripsit ex empto quidem agi non posse, quia bonae fidei iudicio exceptiones pacti insunt: an autem fideiussori utilis sit exceptio, videndum: et puto liberato reo et fideiussorem liberari. item venditorem ex stipulatu agentem exceptione summoveri oportet, idemque iuris esse, si emptor quoque rem in stipulationem deduxerit.
3 Paulus, On the Edict, Book XXXIII. Purchase and sale are contracted by common consent, and so they can also be rescinded by common consent before the transaction has been concluded. Therefore, the question arose as to whether the obligation could be rescinded by the mere will of the parties, if the purchaser has accepted a surety, or the vendor had entered into a stipulation. Julianus says that then, indeed, an action on sale would not lie, because exceptions based on the contract are included in a bona fide agreement. It should be considered, however, whether an exception would be available to release the surety. I am of the opinion that if the principal should be released, the surety will be also. The same rule applies where, if the vendor institutes proceedings on the ground of the stipulation, he can be barred by an exception. The law is also the same where the purchaser has included the delivery of the property in the stipulation.
4 Libro octavo digestorum Iuliani Paulus notat. Si emptio contracta sit togae puta aut lancis, et pactus sit venditor, ne alterutrius emptio maneat, puto resolvi obligationem huius rei nomine dumtaxat.
4 Paulus, Notes on the Digest of Julianus, Book VIII. Where a contract was for the purchase of a toga, or a dish, and the vendor agreed that one of said articles should not be sold, I think that only the obligation with reference to said article is rescinded.
5 Iulianus libro quinto decimo digestorum. Cum emptor venditori vel emptori venditor acceptum faciat, voluntas utriusque ostenditur id agentis, ut a negotio discedatur et perinde habeatur, ac si convenisset inter eos, ut neuter ab altero quicquam peteret, sed ut evidentius appareat, acceptilatio in hac causa non sua natura, sed potestate conventionis valet. 1Emptio nuda conventione dissolvitur, si res secuta non fuerit. 2Mortuo autem homine perinde habenda est vendito ac si traditus fuisset, utpote cum venditor liberetur et emptori homo pereat: quare nisi iusta conventio intervenerit, actiones ex empto et vendito manebunt.
5 Julianus, Digest, Book XV. Where the purchaser released the vendor or the vendor released the purchaser from liability, it seems to be the intention of both parties that the transaction should be at an end; and the result is the same as if it had been agreed between them that neither should claim anything from the other. It is, in this case, however, more evident, that the release is not valid on account of its nature, but through the force of the agreement. 1A sale is annulled by the mere agreement of the parties, if the transaction has not been concluded. 2Where a slave that has been sold dies, the sale is held to be in the same condition as if he had been delivered; that is to say, the vendor is released from liability, and the loss of the slave must be borne by the purchaser. Wherefore, unless some other lawful agreement has been entered into, actions on purchase and sale will lie.
6 Paulus libro secundo ad edictum. Si convenit, ut res quae venit, si intra certum tempus displicuisset, redderetur, ex empto actio est, ut Sabinus putat, aut proxima empti in factum datur.
6 Paulus, On the Edict, Book II. If it was agreed between the parties that the property which was sold be returned within a certain time, if it did not suit, Sabinus thinks that an action on purchase will lie, or that one in factum, resembling an action on purchase, should be granted.
7 Idem libro quinto quaestionum. Si id quod pure emi sub condicione rursus emam, nihil agitur posteriore emptione. 1Si pupilli persona intervenit, qui ante sine tutoris auctoritate, deinde tutore auctore emit, quamvis venditor iam ei obligatus fuit, tamen quia pupillus non tenebatur, renovata venditio efficit, ut invicem obligati sint: quod si ante tutoris auctoritas intervenerit, deinde sine tutore auctore emit, nihil actum est posteriore emptione. idem potest quaeri, si sine tutoris auctoritate pactus fuerit, ut discedatur ab emptione: an proinde sit, atque si ab initio sine tutoris auctoritate emisset, ut scilicet ipse non teneatur, sed agente eo retentiones competant. sed nec illud sine ratione dicetur, quoniam initio recte emptio sit contracta, vix bonae fidei convenire eo pacto stari, quod alteri captiosum sit, et maxime, si iusto errore sit deceptus.
7 The Same, Questions, Book V. If I purchase a second time, under a condition, something which I have already purchased absolutely, the subsequent purchase is void. 1Where a ward personally makes a contract without the authority of his guardian, and afterwards makes a purchase with his consent, although the vendor is already bound by a contract with him, still, because the ward is not liable, the sale is renewed in order that they may be mutually bound. If the authority of the guardian was interposed in the first place, and afterwards the ward made a purchase without his authority, the second purchase is void. The question may also be raised if the purchase can be annulled, where an agreement was entered into by the ward without the authority of his guardian, since such an agreement has the same effect as if the ward had, in the first place, made the purchase without the authority of his guardian, and therefore he himself is not liable; but if he brings an action for the property, can the vendor retain it until it is paid for? It may reasonably be held, however, that since the purchase was properly contracted for in the beginning, it is hardly consistent with good faith that an agreement should be adhered to if, by means of it, the other party should be taken at a disadvantage; and this is especially the case if the latter was misled by a plausible error.
8 Scaevola libro secundo responsorum. Titius Seii procurator defuncto Seio ab eo scriptus heres, cum ignoraret, fundum vendente servo hereditario, quasi procurator subscripsit: quaesitum est, an cognito eo, priusquam emptio perficeretur, a venditione discedere possit. respondit Titium, si non ipse vendidit, non idcirco actionibus civilibus teneri, quod servo vendente subscripserat, sed servi nomine praetoria actione teneri.
8 Scævola, Opinions, Book II. Titius, the agent of Seius, was appointed the heir of the latter at his death, and Titius, not being aware that he was dead, sold a tract of land through a slave belonging to the estate, and signed his name as agent. The question arose whether the agent could have annulled the sale, if he had known of the death before the purchase was concluded? The answer was that if Titius himself had not sold the property, he would not be liable to a civil action, for the reason that he signed the contract of the slave who made the sale, but that he would be liable to a prætorian action in the name of said slave.
9 Idem libro quarto digestorum. Fundus qui Lucii Titii erat ob vectigale rei publicae veniit: sed cum Lucius Titius debitor professus esset paratum se esse vectigal exsolvere solidum, cum minore venisset fundus, quam debita summa esset, praeses provinciae [ed. maior rescindit] <ed. minor rescidit> venditionem eumque restitui iussit Lucio Titio: quaesitum est, an post sententiam praesidis, antequam restitueretur, in bonis Lucii Titii fundus emptus esset. respondit non prius, quam emptori pretium esset illatum vel, si pretium nondum esset ab emptore solutum, in vectigal satisfactum esset.
9 The Same, Digest, Book IV. A certain tract of land which belonged to Lucius Titius was sold on account of a public tax. Lucius Titius, having acknowledged that he was the debtor, said that he was ready to pay the whole of the tax; and, as the sale of the property was not sufficient to pay the entire amount, the Governor of the province rescinded the sale, and ordered the land to be restored to Lucius Titius. The question arose whether, after the decision of the Governor and before the land was restored, it was included in the property of Lucius Titius? The answer was that this was not the case before the price had been refunded to the purchaser, or if the price had not yet been paid by him before the claim for taxes was satisfied.
10 Idem libro septimo digestorum. Seius a Lucio Titio emit fundum lege dicta, ut, si ad diem pecuniam non solvisset, res inempta fieret. Seius parte pretii praesenti die soluta, defuncto venditore, filiis eius pupillaris aetatis et ipse tutor cum aliis datus, neque contutoribus pretium secundum legem numeravit nec rationibus tutelae rettulit: quaesitum est, an irrita emptio facta esset. respondit secundum ea quae proponerentur inemptam videri. 1Emptor praediorum cum suspicaretur Numeriam et Semproniam controversiam moturas, pactus est cum venditore, ut ex pretio aliqua summa apud se maneret, donec emptori fideiussor daretur a venditore: postea venditor eam legem inseruit, ut, si ex die pecunia omnis soluta non esset et venditor ea praedia venisse nollet, invendita essent: interea de adversariis alteram mulierem venditor superavit, cum altera transegit, ita ut sine ulla quaestione emptor praedia possideret: quaesitum est, cum neque fideiussor datus est nec omnis pecunia secundum legem suis diebus soluta sit, an praedia invendita sint. respondit, si convenisset, ut non prius pecunia solveretur quam fideiussor venditi causa daretur, nec id factum esset, cum per emptorem non staret quo minus fieret, non posse posteriorem legis partem exerceri.
10 The Same, Digest, Book VII. Seius bought a tract of land from Lucius Titius under the condition that the property would remain unsold if payment was not made by a certain time. Seius, having paid a portion of the price at once, and the vendor having died, he was appointed guardian of the minor children of Titius, along with others, but did not pay the remainder of the price to his fellow-guardians, in compliance with the contract, and did not place the amount among the assets of the guardianship. The question arose whether the purchase was void. The answer was that, in accordance with the facts stated, the sale was held to be of no effect. 1The purchaser of certain lands, suspecting that Numeria and Sempronia would raise a controversy with reference to the sale of the same, agreed with the vendor that a certain portion of the price should remain in his hands until a surety should be furnished him by the vendor. The vendor afterwards inserted the following provision into the contract, namely: “That if all the money was not paid by a certain time, and the vendor did not wish the lands to be sold, they would remain unsold.” In the meantime, the vendor gained his case against one of his female adversaries, and made a compromise with the other, so that the purchaser might obtain possession of the lands without any dispute. The question arose, as no surety was furnished, and the entire sum of money was not paid at the appointed time in accordance with the terms of the contract, whether the land remained unsold? The answer was that if the agreement had been that the money should not be paid before a surety had been furnished on account of the sale, and nothing had been done by the purchaser to prevent the execution of the contract, the latter portion of the same could not be enforced.