Paulus, On the Edict, Book XXXIII. A perpetual partnership cannot be formed.

Paulus, On the Edict, Book XXXIII. The origin of purchase and sale is derived from exchanges, for formerly money was not known, and there was no name for merchandise or the price of anything, but every one, in accordance with the requirements of the time and circumstances exchanged articles which were useless to him for other things which he needed; for it often happens that what one has a superabundance of, another lacks. But, for the reason that it did not always or readily happen that when you had what I wanted, or, on the other hand that I had what you were willing to take, a substance was selected whose public and perpetual value, by its uniformity as a medium of exchange, overcame the difficulties arising from barter, and this substance, having been coined by public authority, represented use and ownership, not so much on account of the material itself as by its value, and both articles were no longer designated merchandise, but one of them was called the price of the other. 1But while it may be doubted whether a true sale can be made to-day without the employment of coin, as, for instance, if I gave a toga and received a tunic instead; Sabinus and Cassius think that, in this case, there is a veritable purchase and sale, but Nerva and Proculus are of the opinion that this is an exchange, and not a purchase. Sabinus gives Homer as an example, who relates that the army of the Greeks purchased wine with copper, iron, and slaves, as follows: “The long haired Greeks here purchased wine, some of them with copper, others with glittering iron, others with hides, others again with cattle, and still others with slaves.” These verses, however, seem to indicate an exchange and not a purchase, like the following: “Jupiter, the son of Saturn, obscured the faculties of Glaucus until he changed arms with Diomedes, the son of Tydeus.” In support of the opinion of Sabinus, the following can be quoted with greater effect, that is, where the same poet says, “He purchased with his possessions.” The opinion of Nerva and Proculus is, however, the better one, for it is one thing to sell, and another to purchase; one thing to be a purchaser, and another a vendor; just as the price is one thing, and the merchandise another; but in an exchange it cannot be ascertained which is the purchaser and which is the vendor. 2Purchase is derived from the Law of Nations, and therefore it is accomplished by consent, and can be contracted between parties who are absent, by a messenger, as well as by letters.

Paulus, On the Edict, Book XXXIII. It is, nevertheless, the duty of the judge, in a case of this kind, to reduce the price.

Paulus, On the Edict, Book XXXIII. If, in a sale of a tract of land, it is stated that: “The slave Stichus is included,” and it cannot be ascertained which one is intended, where there are several slaves of that name and the purchaser had one in mind and the vendor another; it is established that the sale of the land will, nevertheless, be valid. Labeo, however, says that that Stichus should be delivered whom the vendor had in mind, and it does not make much difference what the value of the slave was, whether he was worth more or less than the property in which he was included, for we sometimes purchase property because of its accessories, for example, where a house is purchased on account of the marbles, statues, and paintings which it contains. 1A sale can legally be made of all the property which anyone has either in his possession, or which he may subsequently acquire; but there can be no sale of that which either the Law of Nature or of Nations, or the customs of the State, have removed from commerce. 2We cannot knowingly purchase a free man, nor can a purchase or stipulation based on the assumption that he may become a slave be admitted; although we have stated that property which is not yet in existence can be purchased; for it is not right to anticipate such a contingency. 3Moreover, if the purchaser and the vendor both know that the property sold has been stolen, no obligation will be contracted on either side. If the purchaser alone is aware of the fact, the vendor will not be liable; still, he cannot recover anything on the ground of the sale, unless he voluntarily furnishes what he agreed to do. Where, however, the vendor was aware that the property had been stolen, but the purchaser was ignorant of the fact, an obligation is contracted on both sides; and this also was stated by Pomponius. 4The purchase of one’s own property is valid, only where the purchaser intended from the beginning to obtain possession of it from the vendor, and could obtain it by no other means. 5It is one thing to taste, and another to measure anything which is offered for sale; for the taste is an advantage, by giving the buyer his own opportunity to reject it; but the measure only enables him to ascertain the amount of the purchase, and not whether the article is sold for too large or too small a sum. 6If a purchase is made in the following terms: “Either Stichus or Pamphilus is purchased by me,” the vendor has the right to deliver whichever one he pleases, as is the case in stipulations; but if one of them should die, the survivor must be delivered, and hence the risk of the first slave attaches to the vendor, and that of the second to the purchaser. But if both of them should die, the price will still be due, for the one who survives the other is always at the risk of the purchaser. The same must be said if the purchaser had the right to select which one he wished to have; provided it was only left to him which one he would purchase, and not whether he would make any purchase at all. 7A guardian, cannot buy the property of a ward. The same rule extends to similar cases, that is, to those of curators, agents, and persons who transact the business of others.

The Same, On the Edict, Book XXXIII. The vendor is required to notify the first purchaser, where better terms are offered, so that, if the other has increased the price, he can do so likewise.

Ad Dig. 18,4,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 397, Note 1.Paulus, On the Edict, Book XXXIII. And this is the case without any exception, unless the intention was otherwise. If, however, a party is alleged to be a debtor for a certain sum, the vendor will be liable for that amount; but if the sum is said to be uncertain, and nothing is due, he will be liable to the amount of the interest of the purchaser,

Ad Dig. 18,4,9ROHGE, Bd. 16 (1875), Nr. 43, S. 150: Verpflichtungen aus dem Verkaufe eines nicht existirenden Kaufobjekts. Eigener Wechsel an eigene Ordre. Einfluß des Irrthums.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 307, Note 5; Bd. II, § 315, Note 7.Paulus, On the Edict, Book XXXIII. And whatever interest the purchaser had in having the sale concluded.

The Same, On the Edict, Book XXXIII. Where anyone sells claims against a son under paternal control, he must also assign any rights of action which he has against the father of the debtor. 1Where the right of succession to an estate is sold, the vendor shall deliver the property belonging to the same; and it makes no difference what its value is.

Paulus, On the Edict, Book XXXIII. Where you, as an heir, sell the right of succession to an estate, since the estate must be restored to you in accordance with the Trebellian Decree of the Senate, you will be liable to the extent of the purchaser’s interest.

Paulus, On the Edict, Book XXXIII. Purchase and sale are contracted by common consent, and so they can also be rescinded by common consent before the transaction has been concluded. Therefore, the question arose as to whether the obligation could be rescinded by the mere will of the parties, if the purchaser has accepted a surety, or the vendor had entered into a stipulation. Julianus says that then, indeed, an action on sale would not lie, because exceptions based on the contract are included in a bona fide agreement. It should be considered, however, whether an exception would be available to release the surety. I am of the opinion that if the principal should be released, the surety will be also. The same rule applies where, if the vendor institutes proceedings on the ground of the stipulation, he can be barred by an exception. The law is also the same where the purchaser has included the delivery of the property in the stipulation.

The 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.

Paulus, 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.

Paulus, On the Edict, Book XXXIII. The vendor of a slave stated that his peculium was an accessory. If a sub-slave was taken away by eviction, Labeo says that the vendor will not be liable on this account, for if the slave did not form part of the peculium he would not constitute an accessory, but if he did, the purchaser sustained an injury through the decision of the judge; but the case is different if the vendor had expressly stated that the slave was an accessory, for, in this instance, he would be obliged to guarantee that the slave borrowed part of the peculium.

Paulus, On the Edict, Book XXXIII. The verb, “To have,” is understood in two different ways: in one, where the right of ownership exists; in the other, where property purchased by anyone cannot be obtained without a contest. 1Security means responsibility assumed either with reference to persons or things.