Ulpianus, On Sabinus, Book XXVIII. Where, in an agreement to arbitrate, it is stated that the award shall be made by a certain person, this cannot be extended to others.

Ulpianus, On Sabinus, Book XXVIII. Ad Dig. 8,4,6 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 209, Note 9.Where anyone has two houses and sells one of them, he can state in the conveyance that the house which he does not sell is subject to a servitude in favor of the one which he does sell; or, on the other hand, that the one which is sold must serve the one which is retained; and it makes little difference whether the two houses are adjacent or not. The same rule applies in the case of rustic estates, for where a man has two tracts of land, by conveying one of them he can impose a servitude upon it for the benefit of the other. But where he conveys two houses at the same time, he cannot impose a servitude on either for the benefit of the other; for he cannot acquire a servitude for the house of another, or impose one upon it. 1Where anyone disposes of a share in a house or in a tract of land, he cannot impose a servitude upon either, because a servitude cannot be imposed or acquired with reference to a share. It is evident that if he divides a tract of land into two parts, and alternates one part of what has been divided, he can impose a servitude upon either one of them; because neither is a part of an estate, but is an estate itself. This also may be stated with reference to a house, where the owner divides one building into two, by constructing a wall through the middle of the same, (as many persons do); for in this instance it must be considered as two houses. 2Moreover, suppose that we are two men who own two houses in common, by joining in the conveyance we can accomplish the same result that I alone could do, if I had two houses of my own. But even if we make separate conveyances the same thing will take place; for it is established that the last conveyance renders the former one effective. 3If, however, one of said houses belongs to one of two persons, and the other is the common property of both; then Pomponius, in the Eighth Book on Sabinus, states that I cannot acquire a servitude in favor of, or impose one on either. 3aIf anyone states in a contract of sale that the house which he sold shall be subject to a servitude, it is not necessary to convey the house free; wherefore he can either create a servitude for the benefit of his own house, or grant one to his neighbor; provided this is done before the delivery of the property. It is clear, if he stated that a servitude was to exist for the benefit of Titius, and he grants a servitude to Titius, the transaction is concluded; but if he grants a servitude to another party he is liable on the ground of sale. This is not in contravention of what Marcellus says in the Sixth Book of the Digest, namely: that where anyone, in the transfer of real property, says that it is subject to a servitude for the benefit of Titius, while in fact it is not, but the vendor is bound to convey the land to Titius; can the vendor bring an action on sale to compel the purchaser to permit the servitude to be imposed on the land which he contracted for? He thinks the better opinion is that he should be permitted to bring the action. He also says that if the vendor is able to sell the servitude to Titius, he must still be permitted to bring suit. This is with the understanding that the statement was made at the time of delivery, for the purpose of retaining the servitude; but if, as he says, the vendor feared that Titius was entitled to the servitude, and therefore reserved it, an action on sale will not lie, if he made no provision for the servitude.

Ulpianus, On Sabinus, Book XXVIII. When a party swears by his own salvation, although he is held to swear by God (for when he swears in this way he has reference to the Divinity), still, if the oath had not been tendered him in this particular manner, he is held not to have sworn; and therefore he will be compelled to make oath again in the proper form.

The Same, On Sabinus, Book XXVIII. Where an article is sold with the understanding that if it does not please the purchaser it shall not be considered to have been bought, it is settled that it is not sold under a condition, but that the purchase may be annulled conditionally.

Ad Dig. 18,1,7ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.Ulpianus, On Sabinus, Book XXVIII. Ad Dig. 18,1,7 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Noten 4, 6.Where the sale of a slave was made in the following terms, namely: “After he has rendered his accounts, according to the will of his master,” it is conditional. Conditional sales are only concluded after the conditions have been complied with. In the condition of sale above-mentioned, does the master himself form his judgment according to his own will, or, in fact, should this be considered to have reference, in general terms, to the judgment of a good citizen? For if we understand the will of the master to be meant, the sale is void; just as if anyone made a sale under the condition, “If he should be willing,” or where a party promises a stipulator, “I will pay ten aurei if I wish to,” for it ought not to depend on the will of the debtor whether he is bound or not. It was therefore held by the ancient authorities that this clause rather had reference to the judgment of a good citizen, than to that of the owner of the slave. Hence, if the latter could have accepted the accounts of the slave, but did not do so or, if he did accept them, and pretends that he did not, the condition of the sale is fulfilled, and the vendor can be sued in an action on sale. 1A purchase made in the following terms: “I will buy this of you at the same price you paid for it, or I will give the amount which I have in my chest,” is valid. For the price is not uncertain, as the amount paid at the sale can readily be ascertained, as more doubt exists as to the sum for which the article was purchased, than there does with reference to the property itself. 2Where anyone makes a purchase in the following terms: “I will purchase your land for a hundred aurei, and as much more as I can sell it for,” the sale is valid, and is at once concluded: for the price, a hundred aurei is certain, that is, this price, however, will be increased if the purchaser should sell the land for a larger sum.

Ulpianus, On Sabinus, Book XXVIII. It is clear that the consent of both parties is necessary in all sales and purchases. But if they differ either as to the price, or as to something else connected with the sale, it will be incomplete. Therefore, if I thought that I was purchasing the Cornelian Field, and you thought that you were selling me the Sempronian Field, for the reason that we disagree as to the object of the transaction, the sale will be null and void. The same rule applies where I was under the impression that you had sold me Stichus, and you believed that you had sold me Pamphilus, who was absent; for when there is a disagreement with reference to the object, it is apparent that the sale is of no effect. 1If we disagree with reference to the name, but there is no dispute as to the object, the transaction of purchase and sale is undoubtedly valid; for a mistake in the name is of no consequence, when the property itself is agreed upon. 2Hence, the question arises, where no mistake is made as to the object itself, but there is one as to the substance of which it is composed; as, for instance, if vinegar is sold for wine, copper for gold, or lead for silver or something else which resembles silver, whether there is a purchase and sale. Marcellus says, in the Sixth Book of the Digest, that, in this case, there is a purchase and sale, because the object was agreed upon, although there was an error with reference to the matter of which it was composed. I am of the same opinion, so far as the wine and vinegar are concerned; for, as they are very nearly the same thing, that is to say, the same substance, provided the wine becomes sour, but if it did not become sour but was so in the beginning, that is, if it contained vinegar, it will be held that one thing has been sold for another. In the other instances, however, I think the sale was null, whenever a mistake was made with reference to the substance of which the articles were composed.

Ulpianus, On Sabinus, Book XXVIII. Otherwise, what can we say where a blind man was the purchaser, or where a mistake was made in the substance, or where he was unskilled in detecting the nature of substances; shall we hold that the parties have agreed as to the property? And how can he agree to it, who has not seen it? 1If I think I am buying a virgin slave, when she, in fact, is a woman, the purchase will be valid; for there is no mistake as to her sex. If, however, I should sell you a woman, and you thought that you were buying a boy, for the reason that there is a mistake in the sex, the purchase and sale will be void.

Ad Dig. 18,1,14ROHGE, Bd. 22 (1878), Nr. 90, S. 392: *Error in substantia, in qualitate, in bonitate.Ulpianus, On Sabinus, Book XXVIII. But what shall we say where both parties are mistaken as to both the substance and the nature of the object of the sale; as, for instance, where I think I am selling gold, and you think that you are purchasing gold, when, in fact, the metal is brass; or where, for example, two co-heirs sell a bracelet which is said to be of gold, at a high price to another co-heir, and it is discovered that it is, for the most part, copper? It is held that this is a sale, because the bracelet contained some gold, for if the article is gilt, even though I think it to be gold, the sale will be valid, but where copper is sold for gold the sale will not be valid.

Ulpianus, On Sabinus, Book XXVIII. It is not superfluous to insert the following sentence in a contract of sale, namely: “If the property is, in any respect, sacred or religious, it will not be included,” as this is only applicable to certain tracts of land of limited extent; for if the entire tract is religious, sacred, or public, the purchase will be void.

Ulpianus, On Sabinus, Book XXVIII. An action on purchase will lie in the case of small portions of a tract, as above stated; because, while the place may not be expressly sacred or religious, still, it is included with the greater part of what is bought, as an accessory.

Ulpianus, On Sabinus. Book XXVIII. Whenever land is sold for a certain period, it should be determined whether the sale is absolute, or under some condition, and inquiry should be made whether it is not undoubtedly conditional. It seems to me to be the better opinion that the interpretation of the contract depends upon what was the intention of the parties, for if it was understood that the sale should be annulled if more advantageous terms were offered, the purchase is absolute, and will be rescinded if the condition takes place. If, however, the intention was that the purchase should be perfected if better terms were not offered, the purchase will be a conditional one. 1Therefore, where, in accordance with the distinction which we have made, the sale is absolute, Julianus states that he to whom the property was sold under such conditions, can acquire it by usucaption, and has a right to the crops and all the accessories, and the loss will be his if the property should be destroyed.

Ulpianus, On Sabinus, Book XXVIII. Where a sale is conditional, Pomponius denies that the purchaser has the right of usucaption, and that the crops do not belong to him. 1Julianus asks the following question in the Fifteenth Book, namely: If during the time appointed for the sale the property should be destroyed, or a female slave should die, can the addition of her offspring or of the profits be allowed on this account? Julianus denies that this can be done, because it is not customary for the addition of property, other than of that which was sold, to be allowed. 2Julianus also asks in the same Book. If two slaves have been sold for twenty aurei conditionally, for a certain time, and one of them flies, and afterwards a purchaser appears to buy the surviving slave, and makes an offer of more than twenty aurei, will the first contract be annulled? He says that this example is different from the one relative to the offspring of the slave, and therefore, that, in this instance, the first purchase is rescinded, and the second may be concluded. 3Marcellus, however, states in the Fifth Book of the Digest that, where a tract of land is sold subject to the condition of a better offer, and the latter is made, if the purchaser has pledged the property, it will cease to be encumbered; for which it may be inferred that the purchaser is the owner during the intermediate time, otherwise the pledge will not be valid. 4Julianus also says in the Eightieth Book of the Digest, that he who purchases land dependent upon better terms being offered within a certain time, can avail himself of the interdict Quod vi aut clam, for he is entitled to this interdict whose interest it is that such an event should not take place. He says, however, that where land is sold under such a condition, both its advantages and disadvantages belong to the purchaser before a sale is made to a third party; and therefore that, if any forcible or clandestine act is performed, the first purchaser will be entitled to an interdict, even though better terms had been offered; but he also says that he can bring this action, just as he can claim the crops which he has gathered from the property sold. 5Therefore, where the sale is annulled after having been absolutely made, or where the condition under which it was contracted is not complied with, if better terms are offered, (on the supposition that there is a spurious buyer), Sabinus very properly states that the property belongs to the first purchaser, because better terms do not seem to be offered, as another genuine purchaser did not appear. Where, however, another purchaser appears, but does not offer better terms than the former one, it must also be said that everything remains in the same condition as if he had not appeared. 6Better terms are held to be offered where an addition is made to the price. If, however, the price is not increased, better terms are held to be offered if the payment of the price is rendered more easy, or is made sooner. Again, if a more convenient place for payment is mentioned, better terms are also held to have been offered, and this Pomponius stated in the Ninth Book on Sabinus. He also says that better terms are likewise held to have been offered if a more solvent party presents himself as a purchaser. Hence, if another purchaser is willing to give the same price, but agrees to buy the property under less onerous conditions, or does not require security, better terms are held to be offered. The same opinion must be approved if he is ready to purchase the property for a lower price, but releases the vendor from conditions which were burdensome to him in the first transaction.

Ulpianus, On Sabinus, Book XXVIII. Moreover, what has been stated, namely, that the crops gathered in the meantime belong to the first purchaser, is only true so long as a purchaser does not appear who offers better terms, or where one who does appear is proved to be false. If, however, another purchaser appears, it is settled that the first one must return the crops to the vendor; and this Julianus stated in the Forty-eighth Book of the Digest. 1Where anyone appears who offers better terms, and then the first purchaser bids against him, and the property remains in his hands; it may be doubted whether he is entitled to the crops, as he would have been if no better terms were offered; or whether they belong to the vendor, even though the first purchaser is the one who made the better offer. I think that the last conclusion seems to be reasonable, but still, it is important, as Pomponius says, to ascertain what was the intention of the parties.

Ulpianus, On Sabinus, Book XXVIII. Sabinus says that the vendor can reject the better terms offered, and adhere to the first proposal, if he considers it preferable, and we have adopted this rule. But what should be done, if the intention of the parties had been expressly stated to be that the purchaser could withdraw his offer in case a better one was made? It must be said that the first purchase is annulled, even if the vendor does not accept the second one.

Ulpianus, On Sabinus, Book XXVIII. The opinion of Sabinus, namely, that land cannot be sold a second time where it is subject to a condition of this kind, he defends by the following argument. He holds that the land at once became the property of the first purchaser, just as if better terms were not offered when it was not adjudged positively to the second purchaser, but only with the view to another bidding up the price. Julianus, however, says in the Fifteenth Book of the Digest, that the intention of the contracting parties is a matter of much importance, and that there is nothing to prevent the land from being frequently transferred, provided this is done by the vendor after the first, second, or third bid. 1Sabinus also says that, where of three vendors two adjudge the property to the last purchaser, but one did not consent that this should be done, the share of the latter will belong to the first purchaser; and this is true where the vendors sold their shares to different parties,

Ulpianus, On Sabinus, Book XXVIII. Where all three parties sold their shares at the same price, it must be said that the entire property belongs to the first purchaser; just as if someone had sold me an entire tract of land for a time under this condition, and afterwards had adjudged half of it to another party at a higher price. Celsus states in the Eighth Book of the Digest, that Mucius, Brutus, and Labeo were of the same opinion as Sabinus. Celsus also approves this opinion, and he adds that he is surprised that it had been remarked by no one that if a first purchaser had made a contract with the understanding that he was unwilling to make the purchase unless the entire property was included, he could not be compelled to buy that portion which one of the joint-owners refused to adjudge to a subsequent purchaser. 1It is true, however, that one of the vendors can himself offer better terms, because we can also purchase our share along with the remainder of the entire property.

Ulpianus, On Sabinus, Book XXVIII. Where a tract of land is sold conditionally on the payment of the purchase-money, it is held rather to be annulled under a condition, than to be contracted under one.

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

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

Ulpianus, 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.

Ulpianus, On Sabinus, Book XXVIII. Where a purchaser loses the entire property which he bought or only a part of it, on account of a better title, he has recourse to the vendor. Where he loses a portion of it, or an undivided part of land, he has recourse for the amount which he has lost. If, however, he loses a certain portion of the tract, and not an undivided share of the same, he is entitled to recourse according to the quality of the land of which he has been deprived. But what if he should be deprived of either the best, or the worst part of the land? The quality of the land should be ascertained, and he will be entitled to recourse in proportion to its value.

The Same, On Sabinus, Book XXVIII. In order that, in a case of this kind, the obligation of an oath may be contracted in accordance with law, it is necessary that the person who is sworn be a freedman, and that he does so in consideration of the freedom which he has received. 1The question arises, if anyone should bequeath a legacy to his freedman, provided he will swear to pay ten aurei to his son, instead of giving his services, whether he will be bound by the oath. Celsus Juventius says that he will be bound, and that it makes very little difference for what reason the freedman takes an oath with reference to his services. I assent to the opinion of Celsus. 2In order that the oath may be binding, the freedman must take it after his manumission, and he will be equally bound whether he takes it immediately, or after a certain time. 3Moreover, he should swear that he will give his services, a gift, or a present; and he can promise any services whatsoever, provided that they can be lawfully and properly proposed. 4It was stated in a Rescript by the Divine Hadrian, and also subsequently by other Emperors, that a demand for services cannot be made against one who has obtained his freedom in consideration of the execution of a trust. 5The action to compel the performance of services will be granted against a minor when he reaches the age of puberty, and sometimes even while he is under that age; for services can be performed by him if he is a copyist, or one familiar with the names of citizens, or an accountant, or an actor, or the minister of any other kind of pleasure. 6If the children of a patron have been appointed to unequal shares of the estate, should they be entitled to an action to compel the performance of the services of freedmen, in accordance with their hereditary right to the estate, or to their shares? I think that the better opinion is that they will be entitled to an action in proportion to their hereditary right to the estate. 7It, however, makes little difference whether the children were under the control of the patron, or had been emancipated. 8If a patron should appoint his son, whom he had given in adoption, his heir, the better opinion is that he is entitled to the services of the freedmen. 9The children of a patroness are not excluded from demanding services from the freedmen of their mother.

Ulpianus, On Sabinus, Book XXVIII. No one should be ignorant of the fact that, in the meantime, the slave remains the property of the heir. Hence, he can be surrendered by way of reparation for damage caused by him, but even if this is done, he can still hope to obtain his freedom, for his surrender does not deprive him of it. 1If an heir sells a slave under a different condition than the one upon which his freedom is dependent, his status is not changed; and he can release himself from the control of the purchaser, just as he can do from that of the heir. If, however, the heir should conceal the condition upon which the slave is to be liberated, he will be liable to an action on purchase; and good authorities hold that anyone who knowingly conceals the condition under which a slave is to become free, and sells him absolutely, is guilty of swindling. 2Ad Dig. 40,7,9,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 250, Note 3.The question has been discussed whether he is released, who has delivered up a slave, that was to be conditionally free, by way of reparation for injury committed. Octavenus thinks that he is released, and says that the same rule will apply if someone owed Stichus on account of a stipulation, and delivered him to be free under a certain condition. For if he should obtain his freedom before payment had been made, the entire obligation would be extinguished; because only that is included in it which can be settled by the payment of money; freedom, however, cannot be discharged or replaced by money. This opinion seems to me to be correct. 3The position of a slave who is to be conditionally free is only unchangeable, if the estate is entered upon; for, before this is done, he can be acquired as a slave by usucaption, and the expectation of his freedom disappears. If, however, the estate is entered upon subsequently, his hope of freedom is restored through the favor with which it is regarded.

Ad Dig. 45,1,17ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 429: Ergänzung unbestimmt gelassener Vereinbarungen. Arbitrium boni viri.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 15.Ulpianus, On Sabinus, Book XXVIII. A stipulation is not valid when the condition imposed depends upon the will of the person who makes the promise.

The Same, On Sabinus, Book XXVIII. When there is any irregularity in the collection of taxes, this can be remedied by a new statement of the party interested.

The Same, On Sabinus, Book XXVIII. No obligation will bind anyone of a servile condition. 1The rule is generally approved that, wherever, in bona fide agreements, a condition is left to the decision of the owner of the property, or his agent, this is understood to be done in accordance with the judgment of a good citizen.