Ad Dig. 21,1,61ROHGE, Bd. 15 (1875), Nr. 93, S. 328: Berechnung des Minderwerths im Falle der exceptio quanti minoris.Ulpianus, On the Edict, Book LXXX. Whenever a servitude is in question, and the vendor is defeated, he should refund to the purchaser the amount of the excess paid by the latter, if he was aware that the said servitude had been imposed upon the property.

Ulpianus, On the Edict, Book LXXXI. But if exceptions based on the acts of both vendor and purchaser are pleaded, it is a matter of importance to ascertain on account of which exception the judge will render his decision, and hence whether the stipulation is operative or not.

The Same, On the Edict, Book LXXX. Where the purchaser of property loses his case through the ignorance or mistake of the judge, we deny that the vendor shall suffer the loss, as what difference does it make whether the property was lost through the baseness or folly of the judge? For the vendor should not suffer the injury done to the purchaser. 1If Titius should sell Stichus, who was to be free after his death, and Stichus obtains his freedom in consequence, will a stipulation made with reference to eviction be valid? Julianus says that the stipulation becomes operative, and even if the purchaser was unable in this instance to notify Titius of the eviction, he can still notify his heir. 2Where anyone sells a tract of land, and the vendor himself is buried there by his heir, with the consent of the purchaser, an action on eviction cannot be brought; for under these circumstances the purchaser will lose the property. 3It is not strange, however, that, where a slave is evicted, the heir should be liable on account of the eviction, although the deceased may not have been called to account in this way; for, in some instances, a greater obligation will arise either against or in favor of the heir than would have affected the deceased; as, for example, where a slave was appointed heir after the death of the purchaser, and entered upon the estate by order of the heir of the latter, for he must surrender the estate in an action on purchase, although a prætorian action could only have been brought against the deceased in order to compel the slave to be delivered. 4Where several parties are liable to me for the entire amount in case of eviction, and then, after eviction has taken place, I proceed against one of them, Labeo says that, if I sue the others, I should be barred by an exception.

The Same, On the Edict, Book LXXX. A stipulation is usually entered into with reference to the notice to discontinue the construction of a new work, whenever one neighbor says that he has a right to hinder another from constructing it against his consent. 1Moreover, where anyone desires to proceed with impunity, and continue to build after having been notified to stop, he should offer security to the person who served the notice upon him. If he does this, it will be to the advantage of both parties; to that of the one who served the notice, as he has security to restore the premises to their former condition; and to him upon whom the notice was served, because his building is not interfered with. For if he builds at all before furnishing security, he can, by means of a restitutory interdict, be compelled to demolish what he has erected. 2Again, this stipulation is dependent upon a condition, and only becomes operative after judgment has been rendered, unless something has happened before this was done, and the case was not defended; and the clause with reference to bad faith is also added. 3We consider a structure to have been completed, not where one or two rows of stone have been laid, but where the work has assumed some form, and has the appearance of a building. 4The stipulation becomes operative, and the property must be restored to its former condition in accordance with the judgment of a good citizen, whether a decision has been rendered in the case, or whether no defence is made. If the property is not restored to its former condition, the defendant must pay a sum of money in proportion to the damages sustained, if the plaintiff will consent to this. 5Where several joint-owners construct a building, the question arises whether all of them must furnish security. Labeo says that one should do so, because the restoration of the property cannot be partially made. 6He also says that even though several owners serve notice, care must be taken that security be given to one of them, if all agree to this; for it is evident that if one should not consent, security must be given to each of them. 7He also says that it must be added in the stipulation that an amount equal to the interest of each must be paid; if the parties desire this to be done. If, however, security is furnished to the amount of the value of the property, he says that a doubt will arise whether these words refer to the value of the entire property, or merely to that of the interest of the party who enters into the stipulation. I think that if security for the value of the property is furnished one of the parties, it can be maintained that the stipulation will be sufficient for all of them; since this has reference to the amount of the damages caused by the work.

Ulpianus, On the Edict, Book LXXX. Where anyone brings suit for the production of property and his adversary is discharged from liability because he was not in possession, and he having afterwards regained possession, the owner brings suit a second time, an exception on the ground of res judicata can not properly be pleaded, because the condition of the case is different.

The Same, On the Edict, Book LXXV. Ad Dig. 46,3,58 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 429, Note 2.If anyone should, in good faith, pay a person who had voluntarily taken charge of the business of another, when will he be released? Julianus says that he will be released when the principal ratines the transaction. He also asks whether a personal action can be brought against him for recovery, on this ground, before the principal ratifies the transaction. In answer to this, he says that it makes a difference with what intention the payment was made, whether this was done in order that the debtor might be discharged immediately, or only after the principal had ratified. the act. In the first instance, the agent can be sued at once, and then, when the principal has ratified what has taken place, the right of action will be extinguished; but, in the second instance, no cause of action will arise unless the principal refuses to ratify what the agent has done. 1If a creditor, to whose agent payment has been made without his knowledge, gives himself to be arrogated, the acceptance of the money will be valid if the father ratifies it, but if he does not do so, the debtor can recover what he has paid. 2Where there are two joint-stipulators, and payment is made to the agent of one of them, who is absent, and before he ratifies it, payment is made to the other, the last payment as well as the first remains in abeyance; since it is uncertain whether the last stipulator has collected something which was due, or which was not due.

The Same, On the Edict, Book LXXX. Sometimes, by agreement, a stipulation for the ratification of an act is interposed; for instance, where an agent either sells, leases, or hires, or payment is made to him:

Ulpianus, On the Edict, Book LXXX. For anyone who makes a contract usually stipulates for ratification in order to be in a more secure position. 1To ratify an act is to approve and recognize what has been done by a false agent. 2Julianus says that it is important to know when the principal should ratify the payment made to his agent. Should this be done as soon as he is informed of it? The time should be understood with a certain latitude, and should not be too long or too short an interval, which can be better understood than expressed by words. What then would be the rule, if he did not ratify it immediately, but did so afterwards? This does not have the effect of interfering with the exercise of his right of action, and, because he did not ratify it in the first place, he says that he will still be entitled to his action. Therefore, if he should demand what had already been paid to his agent, he can bring suit under the stipulation, just as if he had not stated afterwards that he would ratify the payment. I think, however, that the debtor will be entitled to an action on the ground of fraud. 3Whether anyone sues, or takes advantage of a set off, the stipulation that the principal will ratify the act immediately becomes operative. For no matter in what way the latter may show his disapproval of what has been done by the agent, the stipulation will take effect.

Ulpianus, On the Edict, Book LXXX. The following clause, “Do you promise to restore the property in good condition?” when inserted in a stipulation, includes the crops. The words, “in good condition,” mean according to the judgment of reliable citizens.