1Ulpianus, On Sabinus, Book XXVIII. If wine should become sour after having been sold, or should undergo any other defect, the purchaser must bear the loss; just as if it had been spilled on account of the vessels in which it was contained being broken, or for some other reason. If, however, the vendor assumes the risk, he must do so for the time during which he subjects himself to it; but where he did not designate the time, the wine will be at his risk until it is consumed, because, when this is done, the sale is then entirely concluded. Therefore, whether it is agreed that the wine shall be at his risk or not, he will be responsible for it until it is used up. If, however, before it is consumed, the vessels or cask containing it are sealed by the purchaser, we hold that the wine will still be at the risk of the vendor, unless some other agreement is made. 1The vendor must also be responsible for the safe-keeping of the wine until it is measured, for before it is measured it is, to a certain extent, not considered to be sold. After the measurement has been made, it ceases to be at the risk of the vendor, and, even before it is measured, he will be released from responsibility if he did not sell it by measure, but sold it by jars or by casks. 2Where a cask has been sealed by the purchaser, Trebatius says that it is held to have been delivered to him; Labeo, however, holds the contrary. The opinion of the latter is correct, for it is customary to seal a cask in order that the wine may not be changed, rather than to consider that it is delivered at the time. 3Ad Dig. 18,6,1,3ROHGE, Bd. 16 (1875), Nr. 81, S. 321: Dispositionsstellung der kauften Waare. Weigerung der Zurücknahme. Folge unberechtigten Verkaufs.The vendor has a right to pour out the wine if he appointed a certain time for it to be measured, and this is not done on the day which was designated. He should not, however, pour it out before notifying the purchaser, in the presence of witnesses, either to remove the wine, or warning him that if he does not do so he will pour it out. It will be more praiseworthy, however, if he should not pour it out when he had a right to do so. Hence he can demand some compensation for the use of the casks, but only if it is to his interest for the casks which contained the wine to be empty; as, for example, if he was about to lease them, or if it was necessary for him to lease others instead. It is, however, more convenient to lease other vessels, and not to deliver the wine until the rent of the others has been paid by the purchaser, or to sell the wine in good faith; that is to say, to manage to do everything without inconveniencing one’s self, so that the least possible loss may result to the purchaser. 4If you buy wine in casks, and nothing has been agreed upon as to the time of its delivery, the intention will be held to be that the wine shall be drawn off before the casks will be needed for the next vintage. If they are not emptied by that time, the course adopted by the ancients should be taken; that is to say, the vendor should measure the wine by means of a basket, and let it run away, for the ancient authorities established this rule on account of the measurement, so that the amount of the measurement would not be apparent, but that the loss sustained by the purchaser would be known.

2Gaius, Daily Occurrences, Book II. The following also is true, namely: if the vendor has need of the vessels for the new vintage, and he is a merchant who is in the habit of purchasing and selling wine, the time must be considered when the wine can conveniently be removed from the possession of the vendor. 1Moreover, let us see in what way the vendor must take care of the wine before the time appointed to measure it arrives; must he exercise exact or ordinary diligence, or is he only liable for fraud? I think that the vendor should merely exercise ordinary diligence, and is excusable in case of unavoidable accident or the display of superior force.

3Paulus, On Sabinus, Book V. The vendor must exert the same care that he should do where articles are loaned for use; that is to say, he must exercise more exact diligence than he would with reference to his own property.

4Ulpianus, On Sabinus, Book XXVIII. If anyone should sell his wine, and state that it must be tasted within a certain time, and he, afterwards, was to blame for this not being done; should the vendor bear the risk of the sourness or mould of the wine, only for the time which had passed before the day which was fixed? Or would he also be liable after the time had elapsed; or, if the wine was spoiled after that time, must the vendor assume the risk? Or should it rather be held that the sale was concluded, since it had been made under a condition, that is to say, that the wine should be tested before a certain date? The intention of the parties is a matter of importance. I think, however, that if the intention cannot be ascertained, it should be held that the purchase still subsists, and that the vendor must assume the risk even after the day appointed for tasting the wine has gone by, because this was caused by himself. 1If the wine is sold in bulk, the vendor is only responsible for its custody; and from this it is apparent that if it is not sold under the condition of being tasted, the vendor will not be held liable for its sourness, or its mould, but the purchaser must bear the entire risk. It is, however, unusual for anyone to purchase wine without tasting it; and therefore if no day has been appointed for that purpose, the purchaser can taste it when he pleases, and up to the time when he does so, the vendor must be responsible for its sourness or mould; for when the day for tasting it has been fixed, it renders the condition of the purchaser better. 2Where wine has been sold in bulk, its custody ceases when the time for its removal arrives; and this must be understood to apply when the time is mentioned. If, however, it should not be mentioned, it must be considered whether the vendor is required to take care of it indefinitely. The better opinion is (in accordance with what we have explained above) that either the intention of the parties with reference to the time should be ascertained, or the purchaser should be notified to remove the wine. It is certain that the wine ought to be removed before the casks are required for the vintage.

5Ad Dig. 18,6,5ROHGE, Bd. 11 (1874), Nr. 97, S. 295: Folge des Annahmeverzuges des Frachtguts seitens des Empfängers. Befugnis des Frachtführers zum Verkaufe, nicht Verpflichtung.Paulus, On Sabinus, Book V. If it was the fault of the purchaser that the wine was not removed at the appointed time, the vendor is not obliged to be responsible for it afterwards, unless the delay was caused by fraudulent intent on his part. If, for example, a hundred jars of wine in a certain cellar were sold, the vendor must bear the risk until they are measured, unless the purchaser was to blame for the delay.

6Pomponius, On Sabinus, Book IX. If I purchase certain wine, that which is sour and mouldy being excepted, Proculus says that, although this exception is made for the benefit of the purchaser, if he is willing to accept wine that is acid, still, acid and mouldy wine will not be included in the sale; for whatever the purchaser is not willing to accept, he should not be compelled to take, for this is unjust, and the vendor should not be permitted to sell the wine to another.

7Paulus, On Sabinus, Book V. If, after a sale, an addition is made to land by alluvial deposit, or its amount is diminished from the same cause, the purchaser will enjoy the advantage, or suffer the inconvenience. For if, after the sale, the entire field is covered by a river, the purchaser must bear the loss, and therefore, in the same manner, he is entitled to any benefit arising therefrom. 1Everything that is sold must be conveyed with the land, unless it has been agreed upon that this should not be done. Whatever cannot be measured must also be transferred, if this was the understanding; as, for instance, highways, boundaries, and groves adjoining the premises. Where, however, nothing was said on the subject, these need not be transferred; and therefore it is customary to expressly provide that groves, and public highways which are in the tract of land shall all be measured, and included in the transfer.

8The Same, On the Edict, Book XXXIII. It is necessary to ascertain when the sale is complete, for we will then know who must be responsible for the risk; as, when the sale has been perfected, the purchaser must assume it. If the quality and quantity of the property to be sold are determined, as well as the price of the same, and it is sold without any condition, the transaction is complete. If, however, it is sold under a condition, and the condition should not be complied with, the sale is void, just as in the case of a stipulation. Proculus and Octavenus say that the property is at the risk of the purchaser as soon as the condition is complied with, and Pomponius approves this opinion in the Ninth Book. If, however, while the condition is still pending, either the purchaser or the vendor should die, it is established that if the condition is fulfilled, their heirs will also be bound, just as if the transaction had been concluded with reference to some time that had passed. But, if the property is delivered while the condition is pending, the purchaser, as such, cannot acquire it by usucaption, and he can recover any of the price which he may have paid, while the crops gathered during the intermediate time will belong to the vendor; in the same way as stipulations and conditional legacies are terminated if, the property should be destroyed while the condition remains unfulfilled. It is clear that if the property survives, although in a damaged condition, the purchaser must bear the loss. 1Where a sale is made in the following terms: “This slave is sold whether a certain ship does, or does not arrive from Asia.” Julianus is of the opinion that the sale is instantly concluded, since it is certain that the contract is complete. 2If you sell me the usufruct of certain property, it makes a difference whether you merely dispose of the right of using and enjoying it, which alone belongs to you, or whether, if you own the property, you sell me the usufruct of the same; for, in the first instance, even if you should immediately die, your heir will owe me nothing, but if you live, the right will pass to my heir. In the second instance, nothing will pass to my heir, but your heir will incur the obligation.

9Gaius, On the Provincial Edict, Book X. If, after the examination of a tract of land, and before the contract of sale is made, the trees on said tract are overthrown by the force of the wind, the question arises whether they, also, should be delivered to the purchaser? The answer is that they should not, because he did not purchase them, since before he bought the land they ceased to be a part of it. Where, however, the purchaser was not aware that the trees had been overthrown, but the vendor knew it and did not inform him, he will be liable for damages to the amount of interest of the purchaser, provided the sale takes place.

10Ulpianus, Disputations, Book VIII. Where, in a conditional sale, it was also agreed that the property should remain at the risk of the purchaser, I think that the agreement will be valid.

11Ad Dig. 18,6,11ROHGE, Bd. 5 (1872), S. 406: Beim Kaufe nach Gewicht ist für die Preisbestimmung der Zeitpunkt der Ablieferung entscheidend.Scævola says in a note on the Seventh Book of Julianus, that a purchaser cannot bring an action for the recovery of land which has been sold, when, before its measurement was taken, a portion of said land was destroyed by an inundation, or by an earthquake, or by any other accident.

12Ad Dig. 18,6,12ROHGE, Bd. 6 (1872), S. 216: Klage des Mandanten gegen den Mandatar auf Ersatz des durch Verabsäumung der vertragsmäßigen Diligenz verursachten Schadens. Beweislast der DiligenzAlfenus Verus, Digest, Book II. Where a house which has been sold is burned, as a fire cannot take place without someone being responsible, what is the law? The answer is that, because a fire can take place without the fault of the head of the household, if it was not caused by the negligence of his slaves, the master will not necessarily be to blame. Hence, if the vendor exercises the same diligence in taking care of the house as thrifty and diligent men are accustomed to do, and any accident should happen, he will not be responsible.

13Paulus, Epitomes of the Digest of Alfenus, Book III. The ædile broke up some beds which a party had purchased, and which had been left on the highway. If they had been delivered to the purchaser, or if he was to blame for their not having been delivered, he must bear the loss.

14Julianus, On Urseius Ferox, Book III. The purchaser would be entitled to an action under the Lex Aquilia against the ædile, if he acted illegally; or he will certainly have an action on sale against the vendor, to compel him to assign to him the rights of action which he has against the Ædile.

15Paulus, Epitomes of the Digest of Alfenus, Book III. If the beds had not been delivered, and the purchaser had not prevented their delivery by delay, the loss must be borne by the vendor. 1Where materials that have been purchased are lost by theft, after delivery, it is held that the purchaser must bear the loss; otherwise, the vendor must do so. Timbers are considered to have been delivered as soon as the purchaser has marked them.

16Gaius, Daily Occurrences, Book II. Where wine in casks is sold, and it is spoiled on account of its nature, before it is removed by the purchaser, and the vendor has vouched for the good quality of the wine, he will be liable to the purchaser; but if he said nothing with reference to this, the purchaser must bear the loss, either because he did not taste the wine, or, if he did taste it, he formed an incorrect opinion, and has only himself to blame. It is clear that if the vendor knew that the good quality of the wine would not last until the day when it was to be removed, and did not notify the purchaser, he will be liable to the extent of the interest of the latter in being warned.

17Ad Dig. 18,6,17ROHGE, Bd. 11 (1874), Nr. 97, S. 295: Folge des Annahmeverzuges des Frachtguts seitens des Empfängers. Befugnis des Frachtführers zum Verkaufe, nicht Verpflichtung.ROHGE, Bd. 13 (1874), Nr. 68, S. 207: Unterlassung von Schadensabwendungs-Maßregeln seitens des vertragstreuen Contrahenten.Javolenus, On Cassius, Book VII. Where the purchaser of a slave asks permission to hire him until he can pay his price, he will acquire nothing through the services of said slave, since he is not held to be delivered whose possession is retained by the vendor through hiring him. The purchaser will be responsible for the slave, where anything happens to him without the fraud of the vendor.

18Pomponius, On Quintus Mucius, Book XXXI. It must be noted that, as soon as the purchaser begins to be in default, the vendor will be responsible, not for negligence, but only for fraud. If both vendor and purchaser should be in default, Labeo says that the purchaser will be more prejudiced thereby than the vendor. It must, however, be considered, whether the party who is last in default, is not the more prejudiced, for what would be the case if I notify the vendor, and he does not deliver the property which I bought, and then, when he afterwards tenders it, I refuse to accept it? It is clear that, in this instance I should be the one to suffer by the default. But if the default was caused by the purchaser, and then, while everything was intact, the vendor should be in default when he was able to make the delivery, it is only just that he should suffer by the later delay.

19Papinianus, Opinions, Book III. Where the obligation of furnishing a lodging to freedmen is terminated by their death, the purchaser of the property will not be liable to the vendor on this account; if no other agreement was made than that a lodging should be furnished the freedmen in compliance with the will of the deceased, in addition to the price paid. 1Where a controversy arises, with reference to the ownership of property, before the price is paid; the purchaser is not compelled to pay it, unless solvent securities against his eviction are furnished by the vendor.

20Hermogenianus, Epitomes of Law, Book II. Where the purchaser is in default to the vendor for the payment of the price, he must only pay him interest, and he will not be liable for anything that the vendor might have obtained, if there had been no delay; as, for instance, if the vendor was a merchant, and the price having been paid, he could have gained more from the sale of his merchandise than from the interest.