1Ulpianus, On Sabinus, Book XXVIII. If the property sold is not delivered, the purchaser will be entitled to an action to recover the amount of his interest in having this done. This interest sometimes is greater than the price of the property itself, where it is worth more to the buyer than the value of the property, or what it was purchased with. 1If the vendor knew that the property was subject to a servitude, and concealed the fact, he cannot avoid an action on purchase, provided the buyer was ignorant that this was the case; for everything which is done in violation of good faith is included in an action on purchase. We understand the vendor to be aware of the encumbrance, and to conceal it, not only where he does not notify the purchaser, but also where he denies that the said servitude is due, when questioned on the subject. If you suggest, as an instance, that the vendor said: “No servitude is due, but in case one should unexpectedly appear, I will not be liable,” I think that he will be liable to an action on purchase, because the servitude was owing, and he knew it. If, however, the vendor took measures to prevent the purchaser from ascertaining that a servitude was due, I hold that he will be liable to an action on purchase. And, generally speaking, I should say that, if he acted fraudulently in concealing the existence of the servitude, he should be held liable, but not after he has consented to furnish the security. These principles are correct, when the purchaser did not know that the servitudes existed, because he is not considered to have concealed anything where the other party is aware of it, nor should he be informed who is not ignorant of the facts.

2Paulus, On Sabinus, Book V. Where the dimensions of a tract of land are mentioned at the time of the sale, and the amount is not delivered, an action on purchase will lie. 1Full possession of property is not understood to be transferred to a purchaser, if any legatee or trustee appointed for its preservation is in possession of the same, or any creditors hold it. The same must be said where an unborn child is in possession, for the term full possession also applies to this case.

3Pomponius, On Sabinus, Book IX. The delivery of possession which should be made by the vendor is of such a nature that if anyone can legally deprive the purchaser of it, possession will not be understood to have been delivered. 1Where the purchaser stipulates for full delivery of possession, and brings an action on the stipulation, the profits will not be included in said action; because when anyone stipulates for the delivery of land, it is understood that full possession of the same must be delivered, and the delivery of the crops is not embraced in such a stipulation, as nothing more should be included in it than the mere transfer of the land; but an action on purchase for the delivery of the crops will lie. 2If I purchase a pathway, a driveway for cattle, a general right of way, or the right to conduct water through your premises, there is no delivery of mere possession; and therefore you should furnish me security that nothing will be done by you to prevent the exercise of my right. 3Ad Dig. 19,1,3,3ROHGE, Bd. 14 (1875), Nr. 44, S. 140: Anspruch des Käufers auf Ersatz des Schadens wegen Nichterfüllung seitens des Verkäufers nach dem höhern Werthe der Waare zur Zeit der Verurtheilung?Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 280, Note 15.When a vendor of wine is in default with reference to its delivery, he should be condemned to pay the highest price for said wine, either at the time of the sale, or when the damages were assessed in court, and also its greatest value either at the place where the sale was made, or where the suit was brought. 4Ad Dig. 19,1,3,4ROHGE, Bd. 4 (1872), S. 143: Zur Begründung der mora accipiendi genügt nicht die Bereiterklärung des Schuldners zur Erfüllung, sondern er muß auch wirklich dazu bereit gewesen sein.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 346, Note 2.When the purchaser is responsible for the default, the value of the wine must be estimated at the time when the action was brought, and with reference to the lowest price of the same at the place where this was done. Default is said to occur where the vendor is prevented by no difficulty from delivering the wine, especially if he has always been ready to deliver it. Moreover, it is not necessary to consider the price of the wine at the place where suit is brought, but where the wine is to be delivered, for if wine is sold at Brindisi, even though the contract may have been made elsewhere, it must be delivered at Brindisi.

4Paulus, On Sabinus, Book V. If you sell me a slave, being aware that he is a thief or has committed some damage, and I am ignorant of the fact, even though you may have promised me double damages, you will be liable to me in an action on purchase to the amount of what my interest would have been in knowing the character of the slave; because I cannot bring an action against you on the ground of the stipulation, before I myself have actually lost something. 1Where the measurement of a field is found to be less than had been stated, the vendor will be liable for the amount of the deficiency; because where the measurement falls short, the quality of ground which does not exist cannot be ascertained. And not only will the purchaser be entitled to an action where the measurement of a field falls short in its entirety, but also with reference to any portion of the same; as, for instance, if it were stated that there are so many jugera in a vineyard, or an olive-orchard, and the amount is found to be less. Therefore, in these instances, an estimate should be made with reference to the good quality of the soil.

5The Same, On Sabinus, Book V. When an heir is charged by will to sell property belonging to the estate, and he does so, an action can be brought against him either on sale or on account of the will, for all the accessories belonging to the property purchased. 1Where, however, he, erroneously believing that he is charged with the sale of the property, sells it; it must be held that an action on sale cannot be brought against him, since he can be barred by an exception on the ground of fraudulent intent; just as if he, laboring under a mistake, having promised that he will deliver property subject to such a charge, can bar the other party if he brings an action, by pleading an exception based on fraudulent intent. Pomponius even holds that he can bring an action for an indeterminate amount, in order to obtain his release.

6Pomponius, On Sabinus, Book IX. A vendor will be liable to an action on sale, even if he was not aware that the measurement of the field was less than had been represented. 1If I should sell you a house for a certain amount, under the condition that you will repair another house belonging to me, I can bring an action on sale to compel you to repair it. If, however, it had only been agreed upon that you should repair said house, a purchase and sale, as Neratius says, is not held to have been made. 2Ad Dig. 19,1,6,2ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufpreises statt baar in Actien. Nebenvertrag.Moreover, if I sold you a vacant lot for a certain price, and delivered it, on the condition that after you had built a house you will re-convey half of the same to me; it is certain that I am entitled to an action on sale to compel you to build, and also to make the transfer to me after the building has been completed; for so long as any condition relative to the property sold is not complied with by you, it is established that I am entitled to an action on sale. 3If you purchase ground for a burial-place, and a house is built by the vendor near said place, before any interment is made there, you can have recourse to an action against him. 4Ad Dig. 19,1,6,4ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.If you sell me a vessel of any kind, and state that it is of a certain capacity, or of a certain weight, if it is deficient in either respect, I can bring an action on sale against you. But if you sell a vase to me, and guarantee it to be perfect, and it should prove not to be so, you must make good to me any loss which I may have sustained on that account; but if it is not understood that you guarantee it to be perfect, you will only be liable for fraud. Labeo is of a different opinion, and thinks it should only be held that the party must guarantee that the vase is perfect, where the contrary had not been agreed upon; and this opinion is correct. Minicius states that Sabinus gave it as his opinion that a similar guarantee should be understood to be made where casks were hired. 5If I sell you a right of way, you can only notify me to prove my title to the same where the land for which you wish to acquire the servitude is yours; for it would be unjust for me to be liable, if you could not acquire the servitude because you were not the owner of the adjoining land. 6If, however, I should sell you a tract of land, and state that a right of way was attached to the same; I will certainly be liable on account of the right of way, because I am bound as the vendor of both these rights of property. 7If a son under paternal control sells and delivers property to me, he will be liable, just as if he were the head of a household. 8If the vendor has committed any fraudulent act with reference to the property sold, the purchaser will be entitled to an action of purchase on that ground. For it is necessary to consider any fraud in the trial of the case, and whatever the vendor has promised to furnish he must deliver to the purchaser. 9If the vendor knowingly sells property which is encumbered, or which belongs to another, and it is set forth in the contract that he binds himself for nothing on this account, it is necessary to take into consideration his fraudulent conduct which ought always to be absent in the transaction of a sale which is one of good faith.

7The Same, On Sabinus, Book X. When you sold me a tract of land of which the usufruct was reserved, you stated that the said usufruct belonged to Titius, when, in fact, it remained in your hands. If you should bring an action to recover possession of said usufruct, I cannot have recourse to you as long as Titius is living; and he is not in such a situation that even if the usufruct was his, he would lose it, for then, (that is to say, if Titius should forfeit his civil rights, or die) I could have recourse to you as the vendor. The same rule of law applies if you should state that the usufruct belongs to Titius, while, in reality, it belongs to Seius.

8Paulus, On Sabinus, Book V. If I should deliver to you a field free of all encumbrance, when, in fact, I ought to have delivered it as subject to a servitude; I will have the right to bring an action for the recovery of an unascertained amount, in order to compel you to permit the servitude which is due to be imposed. 1If I transfer a field subject to a servitude, which I should transfer to you as free; you will be entitled to an action on purchase, in order to release said servitude, which you ought not to be burdened with.

9Ad Dig. 19,1,9ROHGE, Bd. 7 (1873), S. 356: Klagerecht des Empfängers einer in Erwartung eines Kaufabschlusses übersandten Waare auf Wiederabnahme der Waare.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 347, Note 1.Pomponius, On Sabinus, Book XX. If he who purchased stones on a tract of land refuses to remove them, an action on sale can be brought against him to compel him to do so.

10Ulpianus, On Sabinus, Book XLVI. It is not unusual for one person to be liable to two obligations with reference to the same matter, at the same time; for when one who has a vendor bound becomes heir of another to whom the same vendor is liable, it is established that there are two concurrent rights of action united in the same person, one which he has as his own, and the other which is derived from the estate; and the appointed heir, if he wishes for his own convenience to avail himself of the two actions separately, must bring his own against the vendor before he enters on the estate, and then, after he has done so, bring the one which is derived from the latter. If he should first enter upon the estate, he can only bring one action, but he can do this in such a way as to obtain the greatest advantage from both contracts. On the other hand, if one vendor should become the heir to the other, it is clear that he must guarantee the purchaser doubly against eviction.

11The Same, On the Edict, Book XXXII. Ad Dig. 19,1,11 pr.ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.He who makes a purchase can avail himself of the action on purchase. 1In the first place, it must be remembered that, in a case of this kind, there should only be introduced what can properly be the subject of a guarantee, for since this is a bona fide action, there is nothing more consistent with good faith than that what was agreed upon between the contracting parties should be carried out. If, however, nothing was specially agreed upon, they will then be liable to one another for whatever naturally comes within the scope of the transaction. 2First, the vendor must transfer the property itself, that is to say, deliver it; and the ownership of said property will pass to the purchaser, if, in fact, it belonged to the vendor. If it did not belong to him, the vendor will only be bound in case of eviction, provided the price was paid, or security furnished for the same. The purchaser, however, can be compelled to pay the purchase-money to the vendor. 3Ad Dig. 19,1,11,3ROHGE, Bd. 10 (1874), S. 339: Die actio emti führt zur Auflösung des Geschäfts, wenn das Interesse eben in der Aufhebung des Vertrages besteht.Both Labeo and Sabinus hold that the restitution of the price in case of a defective title is also embraced in the transaction of purchase; and we approve their opinion. 4The vendor should also guarantee the soundness of animals and he who sells beasts of burden usually promises that they will eat and drink as they should do. 5Ad Dig. 19,1,11,5ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus. Täuschung und Uebervortheilung des andern Contrahenten.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.Where anyone thinking that he is purchasing a female slave as a virgin, when she is a woman, and the vendor knowingly permits him to make this mistake; an action for the restitution of the price will, however, not lie in this instance, but an action can be brought on purchase for the rescinding of the contract, and when the price is refunded, the female slave should be returned. 6Where a person purchases wine, and pays a certain sum by way of earnest, and afterwards it is agreed that the purchase shall be void; Julianus says that an action on purchase can be brought for the recovery of the earnest, and that an equitable action on purchase will also lie for the purpose of annulling the sale. I propose the following question, namely: Suppose a ring is given by way of earnest, and that the sale is concluded, the price paid and the property delivered, but the ring is not returned; what proceeding should be instituted? Should it be a personal suit for recovery, where something has been given for a certain purpose and the purpose has been accomplished; or ought an action on sale to be brought? Julianus says that an action on sale will lie. It is certain that a personal action for recovery can be brought, for the ring is now in the hands of the vendor without any reason. 7Neratius says that the vendor will be liable to the purchaser, if he sells him a slave as not being in the habit of running away, even if he is not aware of the fact. 8Neratius says that the same rule applies, even if you should sell a slave belonging to another, and that you are obliged to guarantee him to be free from liability to prosecution for theft, or damages of any kind; and that it has generally been held by all authorities that an action on purchase will lie, to enable the buyer to be furnished security to hold the slave without interference, and, also, that possession may be delivered to him. 9He also says that if the vendor does not deliver the slave, judgment shall be rendered against him for the amount of the interest of the purchaser; and if he does not furnish security, judgment must be rendered against him for the largest amount for which a vendor can be liable. 10Neratius also says that, in all these instances, security must be given for the greatest amount that can be recovered; that is to say, in case of subsequent action, the damages must be assessed after deduction has been made of the amount of the security. 11He also very properly holds that if security is not furnished for one article, when it has been done for others, judgment must be rendered without any deduction. 12Ad Dig. 19,1,11,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 10.He also says in the Second Book of Opinions: “Where a purchaser has judgment rendered against him in a noxal action, he can only recover in an action on purchase the least amount for which he could be released.” He likewise holds that, if an action on stipulation was brought by the purchaser, whether the latter has defended the noxal action or not, for the reason that it was evident that the slave had committed damage, he can, nevertheless, proceed by an action on stipulation, or by one on purchase. 13Neratius also says that a vendor should, in delivering the property, place the purchaser in such a position that he will have the advantage in a contest for its possession. Julianus, however, in the Fifteenth Book of the Digest, states that the property should not be held to be delivered, if the better title to possession is not enjoyed by the purchaser. Therefore, an action on purchase will lie unless this advantage is conferred. 14Cassius says that a party who has obtained an assessment of damages founded upon a double stipulation cannot recover anything on account of other property, with reference to which it is customary to provide security in the case of sales. Julianus thinks that where there is no double stipulation, an action on purchase should be brought. 15Finally, he says in the Tenth Book on Minicius, “That if anyone sells a slave under the condition that he will pay double damages within thirty days if the title is not good, and that he shall not, after that time, be liable for anything,” and the purchaser does not require the amount to be paid within the designated period, the vendor will not be liable, provided he ignorantly sold a slave belonging to another; for, in this instance, he is only compelled to guarantee the purchaser that the title will not be disputed by himself or by his heirs. Where anyone knowingly sells a slave belonging to another, he holds that the vendor is not free from fraud and therefore will be liable to an action on purchase. 16I think that the opinion of Julianus with reference to pledges is also perfectly correct; for where the creditor lawfully sells a pledge, and afterwards the purchaser is deprived of it by someone with a better title, he will not be liable, and he cannot be sued in an action on purchase for the recovery of the price; for this point has been settled by several Imperial Constitutions. It is clear that the vendor must give a guarantee against fraud; for he expressly binds himself in this respect, but even though he does not do so, and sells the property, being aware that he had no claim on it, or that it did not belong to the party who pledged it to him; he will be liable to an action on purchase, because we have shown that he should be responsible for bad faith. 17If anyone should sell property, and should state at the time that its accessories will pass to the purchaser, everything which we have said with reference to the sale of property will apply in this instance, except that the vendor will not be liable for double damages in case of eviction, but will only be required to maintain the purchaser in possession, and this not only applies to himself but to all others. 18Ad Dig. 19,1,11,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 38.Where a person who makes a sale agrees to maintain the purchaser in possession, let us see to what extent he becomes liable. I think that it makes considerable difference whether he promises that the purchaser shall not be disturbed either by him or by persons descended from him, or whether he agrees that his possession shall not be disputed by anyone whomsoever; for where he makes the promise for himself he is not held to warrant the title against others. Hence, if the property is recovered by someone with a better title, or a stipulation is entered into, the vendor will not be liable under the stipulation; or, if one should not be made, he will not be liable on the ground of purchase. Julianus, however, states in the Fifteenth Book of the Digest that, even if the vendor plainly states that the purchaser shall have undisturbed possession, so far as he and his heirs are concerned; the defence can be made that the party is not liable on purchase for the amount of the interest of the buyer, but will only be liable for the refunding of the price. He also says that the same rule applies where it is clearly stated in the contract of sale that no warranty is given against eviction, and, that in case eviction takes place, the vendor will be liable for the price paid, but not for any indemnity, as contracts made in good faith do not permit an agreement to be entered into by which the purchaser may lose the property, and the vendor retain the price; unless, as he says, anyone should consent to abide by all the agreements above mentioned, just as is the case where the vendor receives the money and the merchandise does not come into the hands of the purchaser; as, for instance, where we buy a future cast of a net by a fisherman, or whatever game may be taken in snares laid by a hunter, or any birds caught by a fowler; for even if nothing is taken, the purchaser will, nevertheless, be required to pay the price. The contrary, however, must be held with reference to the agreements above mentioned, unless the vendor knowingly sold the property of another; for then, in accordance with the opinion of Julianus quoted above by us, it must be held that he will be liable to an action on purchase, for the reason that he committed a fraudulent act.

12Celsus, Digest, Book XXVII. If I purchase the cast of a fisherman’s net, and the latter refuses to cast his net, the uncertainty of the result must be taken into account in assessing the damages. If the fisherman refuses to deliver to me the fish which he has caught, an estimate should be made of what he did catch.

13Ad Dig. 19,1,13ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus. Täuschung und Uebervortheilung des andern Contrahenten.Ulpianus, On the Edict, Book XXXII. Ad Dig. 19,1,13 pr.ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 393, Note 1.Julianus, in the Fifteenth Book, makes a distinction with reference to rendering a decision in an action on purchase between a person who knowingly sold the property, and one who ignorantly did so; for he says that anyone who sold a flock which is diseased, or a defective beam, and did so ignorantly, must make the claim good in an action on purchase, to the extent that the buyer would have paid less if he had been aware of said defects. If, however, he was aware of them, and kept silent, and deceived the purchaser, he will be obliged to make good all the loss which the purchaser sustained from said sale. Therefore, if a building should fall down on account of the defect in the price of the timber aforesaid, its entire value must be estimated in assessing damages; or if the flock should die through the contagion of the disease, the purchaser must be indemnified to the extent of the interest he had in the sale of the property in good condition. 1Ad Dig. 19,1,13,1ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 393, Note 1.Moreover, where anyone sells a slave who is a thief, or one who has the habit of running away, and does this knowingly, he should indemnify the purchaser to the amount of his interest in not being deceived. If, however, he was ignorant of this when he sold him the slave, he will be liable with respect to a slave who has the habit of running away to the extent of the lesser amount which the purchaser would have paid if he had known that he had such a habit; but he will not be liable at all, where the slave is a thief. The reason for this distinction is, that a fugitive slave cannot be kept in custody, and the vendor is held liable, as it were, on the ground of eviction; but we can restrain a slave who is a thief. 2Ad Dig. 19,1,13,2ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.A great deal is included in the clause which we mentioned, namely: “To the amount of the interest of the purchaser in not being deceived,” as, for instance, if he had solicited others to run away with him, or had stolen property at the time he fled. 3What would be the case, however, if the vendor was not aware that the slave was a thief, and had given the assurance that he was frugal and faithful, and sold him at a high price? Let us see if he would be liable to an action on purchase. I think that he would be liable, but suppose that he was ignorant of the character of the slave? He ought not to assert so positively something that he did not know. There is then a difference between this instance and that where the vendor knew the character of the slave, for he who knows should warn the purchaser that he is a thief, but in the other instance, he should not be so ready to make a rash statement. 4Where the vendor committed a fraudulent act in order to sell the property at a higher price; for example, if he lied concerning the skill of the slave, or with reference to his peculium, he will be liable in an action on purchase, for the additional amount which he was paid for the slave on the assumption that he had private property, or was skilled in some trade. 5On the other hand, Julianus also says that Terentius Victor died leaving his brother his heir, and that a steward abstracted from the property of the estate certain articles, documents, and slaves, and after these were taken away, the estate was easily made to appear to be of little value; and the steward persuaded the heir to transfer to him his rights in the same. Would he be liable to an action on sale? Julianus says that an action on sale will lie only for the extent to which the estate would have been more valuable if the said property had not been removed. 6Julianus also says that the vendor is usually responsible for fraud, and he explains this by means of the following case. Where a vendor knew that the land which he offered for sale was charged with legacies to several municipalities, and stated in the advertisement that it was only indebted to one municipality, but afterwards inserted in the contract of sale that, if any tributes, taxes, or anything by way of imposts, or for the repair of highways, should be due, the purchaser must make payment, perform said acts, and be responsible; the vendor will be liable to an action on purchase as having deceived the purchaser. This opinion is correct. 7But as it was, in fact, suggested that certain guardians had acted in this way who sold property belonging to a ward, he says that the question is whether the ward should be held liable for the fraud of his guardians? If, indeed, the said guardians sold the property, there is no doubt whatever that they are liable to an action on purchase. Where, however, the ward sold the property by their authority, he will only be liable for the amount by which he profited by the transaction, and judgment should be rendered against the guardians for the remainder, without reference to limitation of time, because liability for fraudulent acts of his guardians does not attach to the ward after he arrives at puberty. 8Ad Dig. 19,1,13,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 321, Note 2.When the buyer brings an action on purchase, the price should be tendered by him; and therefore, even though he only tenders a portion of the price, an action on purchase will not lie, for the vendor has a right to retain the property which he sold, by way of pledge. 9Wherefore, the question arises where part of the price is paid and the property is delivered, but is afterwards lost through proof of a superior title, can the purchaser proceed by an action on purchase to recover the entire price of the property, or merely what he paid? I think the better opinion is that he can recover only what he paid; otherwise, he would be met by an exception on the ground of fraud. 10Where a field is sold on which the crops have already matured, it is settled that they must also be delivered to the purchaser; unless some other agreement has been made. 11If, however, the field was leased, the rent must be paid to the party who leased it. The same rule applies to urban estates, unless some express agreement is made to the contrary. 12Where, however, the vendor had acquired any rights of action for injury committed against the property; for instance, for the prevention of threatened injury, or for the care of rainwater, or under the Lex Aquilia, or an interdict against clandestine or violent possession, they must be assigned to the purchaser. 13Again, where any profit has been obtained from the labor of slaves, or from transportation by beasts of burden, or ships, it must be turned over to the purchaser, as well as any increase of the peculium of the slaves; but not, however, where any gain has been acquired by means of the property of the vendor. 14Titius sold a tract of land containing ninety jugera, and it was stated in the contract of sale that there were a hundred jugera in said tract, and before the measurement was taken ten jugera were added to it by alluvial deposit; I concur in the opinion of Neratius, who held that if the vendor was aware of the deficiency when he sold the land, an action on purchase could be brought against him, even though ten jugera had been added to the tract; because he was guilty of fraud which was not removed by the addition. If, however, he made the sale ignorantly, an action on purchase will not lie. 15If you sell me a tract of land belonging to another, and it afterwards becomes mine by a good title, I will, nevertheless, be entitled to an action on purchase against you. 16With respect to those things, however, which it is customary to furnish with the property purchased, I think that the vendor will not only be liable for fraud but also for negligence; as Celsus states in the Eighth Book of the Digest that, when it is agreed that the vendor shall collect any rent which is past due, and pay it to the purchaser, in case of his failure to do so, he will not only be liable for fraud but also for negligence. 17Celsus also says in the same book: You sold your share of a tract of land which you held in common with Titius, and before you delivered possession you were compelled to join issue in an action in partition. If the tract of land was entirely adjudged to your fellow-owner, you can recover from Titius on this account the amount which you are obliged to pay to the purchaser; but if the entire tract is adjudged to you, he says that you can transfer it all to the purchaser, in such a way, however, that he must pay to Titius the amount for which judgment has been rendered against you in this matter, and that you must provide security against eviction with reference to the part which you sold; but so far as the remainder is concerned, you will only be responsible for fraud. For, indeed, it is only just that the purchaser should be placed in the same position as if the action for partition had been brought against him. If, however, the judge divided the tract between you and Titius by certain boundaries, there is no doubt that you must deliver to the purchaser whatever has been adjudged to you. 18Where a vendor has given anything to a slave who was sold before his delivery took place, this also must be turned over to the purchaser, as well as any estates, and all legacies acquired by the slave; nor shall any distinction be made with reference to him by whom these things were left. Moreover, whatever has been obtained by the labors of the slave must be delivered to the purchaser, unless the day of delivery has been deferred by agreement, in order that the proceeds of the labors of the slave may belong to the vendor. 19The vendor is entitled to an action on sale to recover from the purchaser all that the latter is obliged to give him. 20All the matters hereinafter stated are included in this action; first, the price for which the property was sold, as well as the interest on the same after the day of delivery, for when the purchaser enjoys the property, it is perfectly just that he should pay interest on the purchase-money. 21We must understand delivery of possession to take place to mean even where the possession is precarious; for we should only consider whether the purchaser has the power to gather the crops. 22Again, the vendor can also recover any expenses incurred with reference to the property sold, by bringing an action on sale; for example, if something was expended on the buildings which were disposed of; as Labeo and Trebatius both say that an action on sale can be brought on this ground. The same rule applies where expense has been incurred for the cure of a sick slave before his delivery, or where anything has been expended in instruction, which it is probable that the purchaser would wish to be so expended. Labeo goes still further, and says, that where anything has been expended on the funeral of a dead slave, it must be recovered in an action on sale, provided the slave died without any blame attaching to the vendor. 23Moreover, if, when the property was sold, it was agreed that a solvent debtor should be furnished by the purchaser, the vendor can proceed by an action on sale to compel him to do this. 24If it was agreed between the purchaser and the vendor of certain lands, that, if the purchaser or his heir should sell said lands for a higher price than he had paid, that he would refund to the vendor half the amount of the excess; and the heir of the purchaser should sell said lands at a higher price, the vendor can, by means of an action on sale, recover the amount of his share of the excess for which the property had been sold. 25Ad Dig. 19,1,13,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 18.If an agent should make the sale and furnish security to the purchaser; the question arises whether an action should be granted in favor of the owner, or against him? Papinianus, in the Third Book of Opinions, thinks that an equitable action on purchase can be brought against the owner in the same way as an Institorian Action, provided the owner directed the property to be sold. Hence, on the other hand, it must be said that an equitable action on purchase can be brought by the owner. 26Papinianus says in the same place, that he gave it as his opinion that, where it had been agreed upon that if the price was not paid at the appointed time, double the amount should be paid to the vendor, such a provision seemed to have been added in violation of the constitution, because it exceeded the lawful interest; and he also stated that the case of a conditional rescission of a sale was different from this one; for, in that instance, illegal interest is not agreed upon, and the terms of the contract are not considered dishonorable. 27Where anyone, acting in collusion with my agent, makes a purchase from him, can he bring an action on purchase against me? I think he can, to the extent of compelling me either to abide by the purchase, or annul it. 28Where anyone takes advantage of another under the age of twenty-five, we will grant him an action on purchase, to the same extent as that which we mentioned in the former instance. 29Where anyone makes a purchase from a ward without the authority of his guardian, the contract is only valid on one side; for he who makes the purchase is liable to the ward, but he does not make the ward liable to him. 30Where a vendor reserves a lodging, for instance, that it shall be permitted for a tenant to reside in the house, or that a tenant, who was a farmer, shall have a right to the crops for a certain time; Servius thinks the better opinion to be that an action on sale will lie. Finally, Tubero says that, if the said tenant causes any damage, the buyer, by bringing an action on purchase, can compel the vendor to proceed against the tenant in an action on lease, and pay the purchaser whatever he recovers. 31Where a house is sold or devised, we are accustomed to state that everything is included in the house which is considered to be part of the same, or is used for the benefit of it; as, for instance, the stone edge of a well.

14Pomponius, On Quintus Mucius, Book XXXI. That is to say by means of which use of the well is obtained.

15Ulpianus, On the Edict, Book XXXII. Well-ropes and basins, projecting gutters, and also the pipes connected with the latter, although they may project a considerable distance beyond the building, belong to the latter as well as the gutters. Fish, however, which may be in a reservoir, do not belong either to the house or to the land;

16Pomponius, On Quintus Mucius, Book XXXI. Any more than the chickens or other animals on the premises.

17Ulpianus, On the Edict, Book XXXII. Nothing belongs to the land unless it is attached to the soil. It must not be forgotten that many things form part of a building which are not attached to the same, as for instance, locks, keys, and bolts. There are also many things buried in the earth which do not belong to the land, or to a farm-house, for example, wine-vats and presses, for since these are rather considered implements, they also are attached to the buildings. 1Moreover, it is settled that wine, and crops which have been gathered, do not belong to the house. 2Where a tract of land is sold or devised, the manure-heaps and straw belong to the purchaser or the legatee, the wood, however, belongs to the vendor or the heir; for the reason that the former do not constitute part of the land, even though they may have been collected for the benefit of the same. With reference to the manure-heaps, a distinction is made by Trebatius, who holds that if they have been prepared for the purpose of fertilizing the ground, they belong to the purchaser, but if for the purpose of sale, the vendor is entitled to them, unless some other agreement has been made; and that it makes no difference whether the manure remains in a stable or has been placed in a heap. 3Any paintings attached to the wall, as well as any marble encrusted upon the same, belong to the house. 4Nets about the columns and couches around the walls, as well as hangings of haircloth, are not parts of the house. 5Moreover, anything which has been prepared for a house but has not yet been finished, even though it may be placed in the building, is, nevertheless, not considered to be a part of it. 6Where, in a sale, reservation is made of everything which has been taken out, or cut down; sand, lime, and other things of this kind are held to have been taken out, and trees which have been felled, charcoal, and other similar articles are considered to have been cut. Gallus Aquilius, however, whose opinion is given by Mela, states very properly that a provision with reference to articles which have been taken out and cut down is included, without effect, in a contract of sale; because if they are not expressly sold, an action can be brought to compel them to be produced; as a vendor is not required to give security with reference to any material which has been cut, or for stone or sand, any more than he is for other things which are more valuable. 7Labeo states, as a general proposition, that whatever is in a building for its perpetual use belongs to it, but that which is only for temporary use does not; as, for instance, pipes which are only attached to it for a time, do not belong to the house, but if they are fastened to it permanently, they form a part of it. 8Reservoirs lined with lead, wells, and the covers of the latter which are placed upon the land, but are not attached to it, it is settled belong to the house. 9It is also settled that small images, columns, and figures through the mouths of which water is accustomed to flow, belong to the house. 10Anything which has been removed from a building with the intention of being replaced, forms a part of it; but whatever has been prepared to be placed upon it does not. 11Stakes which have been prepared for a vineyard do not form part of the land before they have been placed in position, but they do belong to it if they have been purchased with the understanding that they shall be so placed.

18Javolenus, On Cassius, Book VII. Granaries, which are usually made of boards, belong to the building, if their foundations are in the earth; but if they are above ground, they should be classed as movable property. 1Tiles which have not yet been placed upon buildings, although they have been brought there for that purpose, are included in the class of personal property. A different rule applies to those which have been removed with the intention of being replaced, for they are accessories to the house.

19Gaius, On the Edict of the Prætor, Title “Publicans.” The ancients, in speaking of purchase and sale, made use of these terms without distinction.

20The Same, On the Provincial Edict, Book XXI. The same rule applies to cases of leasing and hiring.

21Paulus, On the Edict, Book XXXIII. Where a female slave is sold with her offspring, and she proves to be sterile, or more than fifty years of age, and the purchaser was ignorant of the fact, the vendor will be liable to an action on sale. 1Where the vendor of a tract of land knowingly refrains from mentioning any tax which is due upon the same, he will be liable to an action on purchase. But, if he did not give notice of it through ignorance, because, for instance, the land belonged to an estate, he will not be liable. 2Ad Dig. 19,1,21,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 76a, Note 8; Bd. II, § 395, Note 2.Although we stated above that, while we may agree with reference to the object of a sale, but differ as to its quality, a sale will take place; still, the vendor should be liable for the amount of the interest the purchaser had in not being deceived, even if the vendor also is ignorant of the facts; as, for example, where tables are sold as being made of cedar-wood, when in fact they are not. 3Ad Dig. 19,1,21,3BOHGE, Bd. 2 (1871), S. 387 (Anm.): Anspruch auf Ersatz von Schaden, der durch eigene Sorgfalt vermieden werden konnte.ROHGE, Bd. 3 (1872), S. 275: Causalnexus zwischen Verspätung einer Lieferung und dem behaupteten Schaden. Beweislast.ROHGE, Bd. 4 (1872), S. 192: Verpflichtung zum Ersatze von Conventionalstrafe, welche der durch Verzug des Säumigen beschädigte Contrahent einem Dritten hat bezahlen müssen.ROHGE, Bd. 14 (1875), Nr. 44, S. 140: Anspruch des Käufers auf Ersatz des Schadens wegen Nichterfüllung seitens des Verkäufers nach dem höhern Werthe der Waare zur Zeit der Verurtheilung?Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 17.When the vendor is to blame for not delivering the property, all the interest of the purchaser in its delivery, which merely has reference to the property itself, should be taken into consideration; where, for instance, he could have profited by the sale of wine, this need not be taken into account any more than if he had purchased wheat, and, because it had not been delivered, his slaves suffered from hunger; for the value of the wheat, and not that of the slaves about to die of hunger, was the object of the claim. Nor does the obligation become greater, where proceedings are instituted subsequently, even though the wine may have increased in value. This is reasonable, because if the wine had been delivered, the purchaser would have possession of it; but where this has not been done, the vendor is at all events obliged to deliver at present what he should have delivered long before. 4Ad Dig. 19,1,21,4ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufpreises statt baar in Actien. Nebenvertrag.If I sell you a tract of land on condition that I can lease it from you for a certain sum, I will be entitled to an action on sale, because this transaction is, as it were, a part of the price. 5Even though I sold you a tract of land on condition that you would not sell it to anyone but myself, for this reason an action on sale will lie if you should sell it to another. 6A man sold a house and reserved for himself a lodging therein as long as he lived, or in consideration of the payment of ten aurei every year. The first year, the purchaser preferred to pay the ten aurei, the second year, he furnished the lodging. Trebatius says that he had the right to change his mind, and could comply with either one of the conditions every year, and as long as he was ready to do so there would be no cause of action.

22Julianus, Digest, Book VII. If the vendor makes a false statement as to the quality of the land, but not as to its amount, he will still be liable to the purchaser. For suppose that he alleged that there were fifty jugera of vineyard and fifty of meadow, and it was ascertained that there were less than this in the vineyard, and more in the meadow, there would, nevertheless, be one hundred jugera in all.

23The Same, Digest, Book XIII. If anyone should manumit a slave, after he had sold him together with his peculium, he will be liable not only for the peculium which the slave had at the time when he was manumitted, but also for what he acquired afterwards; and he must, in addition, furnish security to restore anything which might come into his hands from the estate of the freedman. Marcellus says in a note that the vendor is compelled, in an action on sale, to deliver whatever the purchaser would have obtained if the slave had not been manumitted. Therefore, nothing is included which he would have acquired if the slave had not been manumitted.

24Julianus, Digest, Book XV. Where a slave in whom you had an usufruct purchases a tract of land, and, before the purchase-money is paid, you lose your civil rights, even though you may have paid the price, you will not be entitled to an action on purchase, because of your loss of civil rights, but you can bring suit against the vendor to recover money which was not due. It makes no difference whether you, or the slave, have made payment out of the peculium belonging to you, where this is done before your loss of civil rights, for, in both instances, you will be entitled to an action on purchase. 1I purchased your slave from a thief in good faith, not knowing that he had been stolen, and the said slave bought another with the peculium belonging to you, and delivered him to me; Sabinus says that you can bring a personal action against me to recover the latter slave. If, however, I have lost anything by the transaction, which he negotiated, I can, on the other hand, bring an action on the ground of the peculium against you. Cassius states that this opinion of Sabinus is correct, with which I also agree. 2Where one slave, having sold another, furnishes a surety, the latter should guarantee the validity of the sale by which he will be bound to the same extent as if he were giving security for a freeman; as an action is granted to the purchaser against the master for the purpose of recovering everything which he could have recovered if the sale had been made by a freeman; but the master cannot have judgment rendered against him for an amount above the value of the peculium.

25Ad Dig. 19,1,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 321, Note 2; Bd. II, § 355, Note 6; Bd. II, § 472, Note 1b.The Same, Digest, Book LIV. When anyone purchases a vintage which is not yet harvested, and is forbidden by the vendor to gather the grapes, he can avail himself of an exception against him if suit is brought for the purchase-money, and not for the recovery of the property which was sold, but not delivered. But if, after delivery has been made, the purchaser is forbidden to press the grapes which have been gathered, or to remove the new wine, he can bring an action for production, or for injury committed, just as if he were forbidden to remove any other property whatsoever which belonged to him.

26Alfenus Verus, Digest, Book II. If anyone, when he sold a tract of land, stated that there were a hundred casks on the premises, which were accessory to the same; even though there was but one cask there, he will, nevertheless, be compelled to furnish a hundred casks to the purchaser.

27Paulus, Epitomes of Alfenus, Book III. Whatever the vendor states is an accessory must be delivered sound and in good condition; as, for instance, where he says that a certain number of casks are an accessory to the land, he must furnish them whole and not broken.

28Julianus, On Urseius Ferox, Book III. You sold me certain lands, and it was agreed between us that I should perform some act, and that, if I did not do so, I should be liable to a penalty. The opinion was given that the vendor can bring an action on sale before suing for the penalty under the stipulation, and if he should recover an amount equal to that fixed as a penalty, he will be barred by an exception on the ground of fraud, if he brings an action on the stipulation. If you should recover the penalty by an action on the stipulation, you will be prevented by operation of law from bringing an action on the sale, unless the amount of the judgment is less than the interest of the vendor in having the agreement executed.

29The Same, On Minicius, Book IV. Where property has been left to someone under a condition, and the latter, ignorant of the fact, buys it from the heir, the purchaser can recover the price by an action on purchase, because he has not possession of the property as derived from the legacy.

30Africanus, Questions, Book VIII. A slave that you purchased from me together with his peculium, committed a theft against me before he was delivered to you. Although the property which he stole has been destroyed, I will, nevertheless, have the right to retain its value out of the peculium, that is to say, the act of the slave diminishes the peculium to the extent to which he has become my debtor on account of his crime. For even if he should steal something from me after his delivery, or I should not be entitled to an action for recovery from the peculium on that ground, or I should be entitled to it to the extent that the peculium was increased by the addition of the stolen property; I would still have a right, in the proposed case, to retain the peculium, and I could bring a personal action for recovery on the ground that I had paid more than was due, if the entire risk attached to you. In accordance with this, it must be held that if the said slave had stolen any money from me, and you, being ignorant of the fact that it had been stolen, should take and use it as a part of the peculium; I will be entitled to an action for recovery against you on the ground that property belonging to me had come into your hands without any consideration. 1Ad Dig. 19,1,30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 389, Note 8a.If you should knowingly sell me property belonging to another, while I was ignorant of the fact, Julianus holds that I can properly bring an action on purchase against you, even before I am deprived of the property on the ground of a better title, for an amount equal to my interest in having it become mine; for although, on the other hand, it is true that the vendor is only liable for the delivery of the property to the purchaser, and not to transfer the title to him, still, for the reason that he should guarantee that he is not committing fraud, he who knowingly sells the property of another to one who is ignorant that it is not his, is liable. This rule is especially applicable if he should manumit a slave, or sell property which was to be given in pledge.

31Neratius, Parchments, Book III. If the property which I am obliged to deliver in accordance with the contract of sale is taken from me by force, although I am required to be responsible for its safe-keeping, it is still more proper that I should only be required to transfer to the purchaser my rights of action for the recovery of said property; because its safe custody is of very little advantage where violence is employed. I should assign to you not only the rights of action which relate to profit, but also such as have reference to loss, so that you may obtain all the gain as well as be responsible for the expense. 1I should assign to you not only what I myself have acquired by means of the said property, but also what the purchaser would have acquired if the slave had been delivered to him at once. 2Ad Dig. 19,1,31,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 199, Note 13.Two of us purchased the same property from a party who was not the owner, the purchase and sale were concluded without bad faith. and the property was delivered. Whether we both made the purchase from the same person, or from two different ones, he must be protected who first acquired his right; that is to say, the one to whom delivery was first made. Where one of two parties makes a purchase from the owner of the property, he must by all means be protected.

32Ulpianus, On the Edict, Book XI. If anyone should buy oil from me, and accept it after having employed false weights in order to deceive me, or the purchaser is taken advantage of by the vendor through the use of weights that are too light, Pomponius says that the vendor will be entitled to an action to compel the purchaser to pay the value of the excess; which is reasonable. Hence the buyer will also be entitled to an action on purchase for the purpose of obtaining satisfaction.

33The Same, On the Edict, Book XXIII. Where several articles are purchased for a single price, an action on purchase and sale can be brought with reference to each one of them.

34The Same, On the Edict, Book XVIII. Where a tract of land is sold, and fraud is committed with reference to the quality of the jugera, an action on purchase will lie.

35The Same, On the Edict, Book LXX. Where anyone purchases a tract of land presumed to be free from rights of way, and he is forbidden to pass through it, and is defeated in court; he will be entitled to an action on purchase. For although no stipulation with reference to eviction was made, because the judgment rendered with reference to the servitude is not final, so far as the property itself is concerned, still it must be said that an action on purchase will lie.

36Paulus, On Plautius, Book VII. The vendor of a house should enter into a stipulation relative to threatened injury before he conveys it, for the reason that he is obliged to exercise proper care and diligence before he delivers the possession of the property, and it is a part of said care and diligence to make such a stipulation, and therefore if he neglects to do so he will be liable to the purchaser.

37The Same, On Plautius, Book XIV. Since, as it is only just that a purchaser in good faith should not be injured by the fraud of another, so it is unjust that the vendor himself should profit by his own fraud.

38Celsus, Digest, Book VIII. Where the vendor of a slave stated that his peculium consisted of ten aurei, that he would not deprive him of any of it, and that if it included more, he would surrender it all; if it is more than that, he must give it all, unless the intention was that he should only deliver the ten aurei; if it is less than that, he must pay the ten, and give a slave who is possessed of a peculium of that amount. 1Where the purchaser is to blame for the non-delivery of the slave to himself, Sextus Ælius and Drusus have stated that he can be compelled by arbitration to indemnify the vendor for the maintenance of the slave; and this opinion appears to me to be perfectly just. 2Firmus asked of Proculus whether the pipes which conduct water from a leaden reservoir under ground into a brazen vessel built around the sides of a house are to be considered part of the latter? Or are they to be considered as personal property, united and stationary, which do not belong to the house? He answered that the intention of the parties should be taken into account. But what if neither the purchaser nor the vendor had paid any attention to the subject, as very frequently occurs in cases of this kind? Would it not seem to be better if we should hold that what is inserted and enclosed in a building forms a portion of the same?

39Modestinus, Rules, Book V. I ask if anyone should sell a tract of land under the condition that all should be considered to be sold which he possessed within certain boundaries, and the vendor, nevertheless, well knew that he did not possess a certain part of said land, and did not notify the purchaser of the fact; would he be liable to an action on sale, since this general rule ought not to apply to those portions of the land which the party who sold them knew did not belong to him, and yet did not except them? Otherwise, the purchaser would be taken advantage of, who if he had known this, would perhaps not have purchased the property at all; or would have bought it at a lower price if he had been notified with reference to its true amount; as this point has been settled by the ancient authorities, with respect to a person who made an exception, in the following terms, “Any servitudes that are due, shall remain due.” For persons learned in the law gave it as their opinion that, if a vendor, knowing that servitudes were due to certain persons, did not notify the purchaser, he would be liable to an action on purchase; for this general exception does not refer to matters which the vendor was aware of, and which he could and should expressly except, but to things of which he was ignorant, and concerning which he could not notify the purchaser. Herennius Modestinus was of the opinion that if the vendor in the case stated did anything for the purpose of deceiving the purchaser, he could be sued in an action on purchase.

40Pomponius, On Quintus Mucius, Book XXXI. Quintus Mucius stated the following case. The owner of a tract of land sold the standing trees on the same, and, after having received the money for the property, refused to deliver it. The purchaser asked what course he should take, and feared that the said trees would not be considered to belong to him. Pomponius replied that the trees standing upon the land were not separate from the latter, and therefore the purchaser could not bring suit to recover the trees as the owner of the same, but he would be entitled to an action on purchase.

41Papinianus, Opinions, Book III. In a contract of sale, nothing was stated with reference to the annual payment due for an aqueduct passing under a house at Rome. The buyer having been deceived would be entitled to an action on purchase on this ground; and therefore, if he should be sued in an action on sale for the price, the unexpected burden imposed upon him should be taken into consideration.

42Paulus, Questions, Book II. If the vendor of two tracts of land should make statements with reference to the measurements of each, and then deliver both for a single price, and the full amount should be lacking to one of the tracts, but the other should contain more; for example, if he stated that one of them contained a hundred jugera, and the other two hundred, it would be of no advantage to him if one of them was found to contain two hundred, and the other fell short ten. A decision on this point is given by Labeo. But can it be doubted that an exception on the ground of bad faith will be available by the vendor? For instance, if a very small portion of woodland was lacking, and the tract included a larger extent of vineyard than had been promised, would not he who availed himself of his perpetual right be guilty of fraud? For in the case where the amount of land is found to be greater than had otherwise been stated, this is not for the benefit of the vendor, but for that of the purchaser; and the vendor is liable whenever the measurement is ascertained to be short. Let us see, however, whether the vendor has no cause of complaint with reference to the same land, where the vineyard is found to include more than the meadow, and the measurement of the whole is correct. The same question may arise in the case of two tracts of land, as where anyone sells two slaves conditionally entitled to their freedom, for one price, and says that one was ordered to pay ten aurei when he should have paid fifteen; for he will be liable to an action on sale, even if the purchaser should have received twenty aurei from the two. It is more just, however, in all the above mentioned cases, for the profit to be set off against the loss, and if anything is lacking to the purchaser, either in the measurement or the quality of the land, he should be indemnified for the same.

43Ad Dig. 19,1,43Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.The Same, Questions, Book V. When Titius died, he left Stichus, Pamphilus, and Arescusa in trust to Seia, and directed that all of them should be given their freedom after the lapse of a year. As the legatee was unwilling to accept the trust, and still could not release the heir from the claim which she had against him, the heir sold the said slaves to Sempronius, without mentioning that their freedom had been bequeathed by the terms of the trust. The purchaser, after having made use of the labor of the aforesaid slaves for several years, manumitted Arescusa; and when the other slaves, having ascertained the intentions of the deceased, demanded their freedom granted under the trust, and brought the heir before the Prætor, the slaves were manumitted by the former on the order of the Prætor. Arescusa answered that she was unwilling to have the purchaser for her patron. When proceedings were instituted by the purchaser in an action on purchase to recover from the vendor the price paid for the slaves including Arescusa; an opinion of Domitius Ulpianus was read, in which it was held that if Arescusa declined to have the purchaser for her patron, her act was justified by a rescript of the Imperial Constitutions, but that the purchaser, after her manumission, could not recover anything from the vendor. I remember that Julianus held, with reference to this opinion, that the right to an action on purchase continued to exist even after the manumission, and I ask which opinion is correct? In this proceeding it was petitioned in the name of the purchaser, that the expenses which he had incurred in the instruction of one of the slaves should be refunded to him. I also ask, since Arescusa refused to have the purchaser as her patron, by whose act she was liberated, and whether she could have either the legatee who did not liberate her, or the heir as her patron, for the other two slaves were manumitted by the heir. I answered that I have always approved the opinion of Julianus, who thought that the right of action was not extinguished in this way by manumission. But with reference to the expenses which the purchaser incurred in the instruction of the slave, there is a point to be considered, for I think that an action on purchase will be sufficient in a case of this kind, since not only is the price involved, but all the interest of the purchaser in not being deprived of the slave by eviction. It is clear that if the expense incurred in the case you suggest exceeds the price to such an extent that the vendor would not have thought that it would amount to so much; as, for instance, if we suppose that the slave was purchased for a small sum and instructed as a charioteer or an actor, and the owner was afterwards deprived of him by eviction, it would seem to be unjust for the vendor to be liable for a larger amount.

44Ad Dig. 19,1,44Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.Africanus, Questions, Book VIII. And suppose that the vendor was only in moderate circumstances, he cannot be compelled to pay more than double the price.

45Ad Dig. 19,1,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.Paulus, Questions, Book V. Africanus states that Julianus held the same opinion, and this is just, as the amount to be paid will be diminished if the value of the slave has depreciated while in the hands of the purchaser, when he is recovered by a better title. 1Ad Dig. 19,1,45,1ROHGE, Bd. 20 (1877), Nr. 99, S. 398: Einfluß der Konkurrenz der culpa levis des Beschädigten auf die Haftung des Beschädigers.The following is held to be more convenient, namely, if you should sell me a vacant lot belonging to another, and I should build upon it, and the owner of the property should recover it by eviction; for since the latter, in bringing an action to recover said property, can be barred by an exception on the ground of bad faith unless he pays the cost of the buildings, the better opinion is that the vendor is not responsible for this. It must also be held in the case of a slave that, if he is recovered under a better title, while he is still in slavery and not after he has been set free, the owner must make good any outlay and expenses incurred on his account. If the buyer is not in possession of the building or the slave, he will be entitled to an action on purchase. In all these instances, if anyone knowingly sells property belonging to another he will, unquestionably, be liable. 2There still remains the third point, that is to say, who shall be the patron of the freedwoman Arescusa, who refused to accept the purchaser as such? It is held, and not without reason, that she ought to become the freedwoman of the person by whom she is sold, that is to say, of the heir, because he himself is liable to an action on purchase. This only applies where Arescusa does not select the purchaser as her patron, for if she does, she will remain his freedwoman, and he will not be entitled to an action on purchase, because he has no longer any interest since he has her as his freedwoman.

46The Same, Questions, Book XXIV. Where anyone sells property belonging to another, and, in the meantime, becomes the heir to the owner of said property, he will be compelled to conclude the sale.

47The Same, Opinions, Book VI. Lucius Titius, having received money in payment for materials sold under a fixed penalty, with the understanding that if they were not delivered in good condition within a designated time, the penalty could be collected, died, after a part of the materials had been delivered. Then, since the testator has become liable for the penalty, and his heir will not produce the remaining materials, can he be sued for the penalty and interest, especially when the purchaser had borrowed the money at a very high rate of interest? Paulus answered that, under the contract as stated, the heir of the vendor could be sued for the penalty, and that, also, in an action on purchase, the court would take into consideration the interest from the day when the vendor began to be in default.

48Scævola, Opinions, Book II. Titius, the heir of Sempronius, sold a tract of land to Septicius as follows: “I sell you the field which belonged to Sempronius, together with any rights enjoyed by Sempronius in the same, for so much money.” He delivered the mere possession of said land, but did not point out the boundaries of the same. The question arose, whether he could be compelled in an action on purchase to show by documents belonging to the estate what rights the deceased had in said land, and to point out its boundaries? I answered that everything should be done under this written contract, which the parties understood to have been intended. If this cannot be ascertained, the vendor must produce the documents relating to the land, and point out its boundaries, for this is consistent with the good faith of the contract.

49Hermogenianus, Epitomes of Law, Book II. Where anyone, for the purpose of deceiving the purchaser, produces a false tenant who is in collusion with him, he will be liable to an action on purchase; nor can he defend himself by stating that he assumes the responsibility for the tenant, and the rent for five years, if, by this means, he contrived more readily to conceal the fraud. 1Ad Dig. 19,1,49,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 259, Note 12.Where the principal of the price has been paid, although this has been done after default, interest on it cannot be claimed, because it is not included in the obligation, but depends upon the decision of the Court.

50Ad Dig. 19,1,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 3.Labeo, Later Epitomes by Javolenus, Book IV. Good faith does not tolerate that, where a buyer, through the indulgence of some law, is not compelled to pay the price of the property purchased before it is delivered to him, the vendor shall be compelled to deliver it, and relinquish possession of the same. Where, however, possession has already been delivered, the result will be that the vendor will lose the property; for example, where the purchaser opposes the vendor, who claims the property, with an exception on the ground of sale and delivery; and hence the case will be the same as if the claimant had not either sold or delivered the property to him.

51The Same, Later Epitomes by Javolenus, Book V. Ad Dig. 19,1,51 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 345, Note 13.Where the purchaser and the vendor are both in default with reference to the delivery and acceptance, the result will be the same as if the purchaser alone was responsible. For the vendor cannot be held to be in default with reference to the purchaser, when the latter himself is also guilty of delay. 1Ad Dig. 19,1,51,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 323, Note 9.Where you purchased a tract of land under the condition that you would pay the purchase-money on the Kalends of July; even though, when the time had expired, the vendor was at fault for the money not being paid to him, and afterwards you were to blame for not paying it; I stated that the vendor could avail himself of the condition stated in the contract, as against you; because in making the sale it was the intention of the parties that if the purchaser was in default for non-payment of the money, he would be liable for the penalty mentioned in the contract. I think this opinion to be correct, unless the vendor was guilty of fraud in the transaction.

52Scævola, Digest, Book VII. A creditor held a tract of land which was encumbered to him, and also had in his possession receipts for taxes previously paid by the debtor which had been deposited with him; and he sold the land to Mævius on the condition that the purchaser should pay any taxes which might become due. The said land was sold by the collector of taxes of the district in which it was situated, on account of the taxes that had already been paid; the same Mævius bought it and paid the amount. The question arose whether the buyer could sue the vendor in an action on purchase, or in any other action, and compel him to surrender the receipts for the payments above mentioned. The answer was that the buyer could proceed, by an action on purchase, to compel the documents in question to be produced. 1A father having given to his daughter, by way of dowry, a certain tract of land whose value had been appraised, the said land was found to be encumbered to a creditor. The question arose whether a son, who had accepted the estate of his father, would be liable to an action on purchase to obtain a release from the creditor, and furnish the property free of encumbrance to the husband, as the daughter, content with her dowry, had declined to accept her share of the estate. The answer was that he would be liable. 2It was agreed between the vendor and the purchaser of an office in the army, that the salary due to the former should be paid to the purchaser. The question arose as to the amount which the purchaser should demand, and what the vendor should pay to the purchaser in a transaction of this kind? The answer was that the vendor should assign the extraordinary right of action which he held on this account. 3A party who had a house on the sea-shore built a wall so that the shore, as well as the house, was enclosed by it, and then sold the house to Gaius Seius. I ask whether the shore which was enclosed with the house by the vendor also belonged to the buyer by the right of purchase? The answer was that the house would be sold in the same condition in which it was before the sale was concluded.

53Labeo, Probabilities, Book I. Where it is stated in a contract that the rent of a house shall belong to the purchaser; whatever the said house is rented for should be paid to the purchaser. Paulus says that this is not altogether true, for if you rent an entire house to one tenant for a certain sum, and the tenant sublets it for a larger amount, and, in selling the house, you state that the rent is to be paid to the purchaser, that only is included which the tenant owes you for the entire house. 1If you sold a tract of land in which you have a burial-place and do not expressly except it, you will have no security on this account. Paulus says that this opinion is, by no means, just, provided a public highway runs by the side of the burial-place. 2If, where a house is sold, lodgings in the same are reserved for the occupants under the terms of the sale, such a reservation is properly made with reference to all the occupants of said house, with the exception of the owner. Paulus, however, says that if you had given free lodgings to anyone in the house which you sold, and you should make the reservation in such a way that the occupants, or any one of them, will have rent to pay at a certain time, you will not properly provide for this; for it is necessary to make an express reservation with reference to them. Therefore, the purchaser can, with impunity, prevent the occupants from lodging in the house.

54The Same, Probabilities, Book II. Where a slave whom you have sold breaks a leg in doing something by your order, the risk is not yours, if you directed him to perform some act which he was accustomed to perform before the sale, and if you ordered him to do something which you would have ordered him to do, even if he had not been sold. Paulus says that this opinion is by no means correct; for if the slave had been accustomed to perform some dangerous task before the sale, it will be held that you were to blame for this; as, for instance, if you had been accustomed to compel your slave to go down into a vault, or into a sewer. The same rule of law applies if you were accustomed to order him to do something which the wise and diligent head of a family would not order his slave to do. What if this should be made the ground of an exception? He can, nevertheless, direct the slave to perform some new task which he would not have ordered him to perform if he had not been sold; for example, if he should order him to go to the home of the purchaser, who lived in a distant place, for certainly this would not be at your risk. Therefore, the entire matter merely has reference to the fraud and negligence of the vendor. 1Where it is stated in the contract that there were eighty casks buried in the ground, which were accessory to the land, and there are more than this; the vendor must give to the purchaser the above mentioned number, making his selection from all the others as he wishes, provided he delivers such as are sound. Where there are only eighty of them, they belong to the purchaser, just as they are; and the vendor will not be obliged to pay him anything for those that are not perfect.

55Ad Dig. 19,1,55Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 315, Note 3.Pomponius, Epistles, Book X. Where a slave who has been purchased or promised is in the power of the enemy, Octavenus thinks that the better opinion is that the sale and stipulation are valid, because it is a transaction entered into between the purchaser and the vendor; for the difficulty exists rather in furnishing what was agreed upon, than in the nature of the transaction, for even if the delivery of the slave should be ordered by the judge, it should be deferred until it can take place.