received. But an obligatio is not the less an obligatio when the price is left to the arbitration of a third party, though it is a conditional one; for the sale is complete if the third party makes his award; it is void if he cannot or will not do so. So held the Proculeians and Justinian. § 2. Again, the price should consist of Cash. When one thing is given for another, it is not a sale, but an exchange. This, however, was a disputed point; but after much discussion between the Sabinians and the Proculeians (1), the opinion of the latter prevailed. Proculus argued that when one thing is given for another, it is impossible to tell which is the price, and therefore who is the buyer and who the seller: a matter, however, which must be known, since the liabilities of buyer and seller differ. The buyer must transfer the property in the price to the seller; but the seller is not exactly bound to transfer the property (2) in the thing sold to the purchaser; he is bound to deliver it on receiving the price, and if he is proprietor, such delivery transfers the property; but if he is not the proprietor, he is bound only to cause the purchaser (3) to have the thing (ut habere liceat); ie., to procure him peaceable possession thereof, and to secure him from being dispossessed (4). Hence the property in a thing sold by its real owner was not transferred to the purchaser by the mere sale. For that purpose the thing must be delivered and the price paid, or some satisfaction given to the seller. Possession is what vests the property; the Sale merely entitles a man to require that he shall be put into possession (5). § 3. When a thing has been sold it stands at the risk of the purchaser, from the completion of the sale, even though he has not been put into possession, and so is not yet proprietor. The purchaser, therefore, must bear the loss arising from any accidents, as he may claim the benefit of alluvio and such accretions. If the thing perish, the purchaser loses, and must therefore pay the price, though he has received nothing (6). (1) The two great schools of Roman law. In Augustus's time, Antistius Labeo (of whom Proculus was afterwards the illustrious disciple) was distinguished for his attempts to enlarge the principles of strict Roman law; whereas Ateius Capito (whom Sabinus and Gaius acknowledged as their master) adhered with scrupulous fidelity to the legal doctrines as they had been handed down to him (D. 1, 2, 2, 47). (2) Hence provincial land might be sold, for the quiritarian property (p. 14) was not required to be transferred. (3) To cause the præstatio thereof (B. 3, t. 13). (4) But, in case of Exchange, 1, the one party is bound to transfer the property in the thing to the other; 2, until one party The has executed his part of the agreement for (5) If A. sells a thing to B., and then sells and delivers the same to C., C. is proprietor; but B. may sue A. for indemnity. (6) For the loss of the thing sold destroys the liability to deliver, by rendering delivery impossible; but the liability to pay the price remains, for its subjectmatter, not being specific, cannot perish. § 3. But the thing must be lost by accident; for the vendor is bound to preserve the thing, and therefore to bestow all the care of a good pater-familias on it. He is therefore responsible for any loss or damage occasioned by his neglect, and even for accidents, if he has taken the risk on himself (si custodiam susceperit), or if the time fixed for delivery has expired, or he has been summoned to deliver and has not delivered it (mora, Ortolan, 2, 319). But the vendor, even when exempt from all responsibility, still continues owner until delivery, and must assign to the purchaser all his rights of action over or relating to the thing, such as his actio in rem, condictio furtiva, his actiones furti, against the thief, and damni injuriæ, against the authors of certain damage (B. 4, t. 1 & 4). § 4. Again, a Sale might be conditional, e.g., it might be agreed that there should be no Sale of a thing, unless it proved suitable to the purchaser, within a fixed period (1). The Sale was not complete, nor did the subject-matter thereof stand at the risk of the purchaser till the condition was fulfilled. It was not uncommon to add certain Pacta to Contracts of Sale (B. 3, t. 22), e.g., the Pactum in diem addictio, an agreement by which the vendor reserves to himself the power of annulling the sale, if, within a certain time, he meets with a better offer; or the lex commissoria, by which the vendor may consider the Sale null if the price is not paid within a certain time (2). But in both cases the Sale was absolute, its defeazance conditional. § 5. Whatever is the subject-matter of commerce, whether it be or not the property of the vendor, might be the subject-matter of Sale (3). A person may sell a thing in prospect, and even an expectation, as the cast of a net (4). § 5. The sale of a thing not in commercio, e.g., a free man, a locus sacer, was not absolutely void, unless the purchaser knew that the thing was not in commercio. If he did not, the sale was valid to this extent, that it entitled the purchaser as against the seller to an action ex emplo; not, indeed, to compel the delivery of the thing, but to obtain indemnity for any damage he might have sustained. The maxim is, res perit domino; but, as Pothier says, the maxim is not universally true, for in this case the proprietor, i.e., the seller in possession, is discharged, but the purchaser, who, before loss of the thing sold, might have sued in order to have it delivered, loses his action. (1) Certum; for otherwise the execution of the agreement would depend on the purchaser's will, and there would be no liability. (2) If the time is not fixed, the buyer, by tendering the price, may claim the thing at any time. (3) A sale of another's property is good between the contracting parties. Hence the purchaser on eviction may claim indemnity from the seller: but the real owner may also sue in rem for his property. (4) This is spei emptio rei sperata emptio was, e.g., where the price was so much a head for the fish caught. TITLE XXIV.—OF LOCATIO-CONDUCTIO (LETTING AND HIRING). Pr. Locatio is a contract by which one of the parties binds himself to procure for another the use or enjoyment of something, for a time agreed upon, or to do something for that other, for a certain consideration (merces). Locator (letter) is the person who binds himself to furnish the thing, or his own labour (1): conductor (hirer) is he who binds himself to pay the consideration (2). This contract, like sale, raised two direct actions, the actio locati or ex locato allowed to the locator, and the actio conducti or ex conducto allowed to the conductor. Pr. The Contract of Locatio was complete by the mere consent of the parties, whenever the sum to be paid was fixed (3); and, as in a sale, this sum had to be fixed either by the contracting parties themselves or by a chosen arbitrator (t. 23). § 1. When a dress was sent to the tailor to be mended, leaving the consideration to be paid for future agreement, it was held, after much discussion, that this was not a Locatio; nor was it a mandatum : for that must be gratuitous; but only an unnamed contract, raising an action præscriptis verbis (B. 3, t. 13). § 2. Nor was it a Locatio when two persons agree that each should enjoy or use the property of the other, e.g., that two neighbours should lend each other their oxen to plough; for the recompense in a Locatio must, like the price in a sale, consist of money. Nor was such an agreement Commodatum, for that must be gratuitous; whereas here there was a mutual loan. Hence there could neither be the actio locati nor commodati. Therefore the lender had an actio præscriptis verbis to recover an indemnity for the wrong suffered by non-fulfilment of the agreement. § 3. It is often very difficult to say whether it is a case of sale or locatio, as in the case when one has received land to be enjoyed in perpetuity, in consideration of an annual payment to the proprietor (pensio, canon), so that, as long as the rent is paid, the land shall not be taken from the tenant or his hæredes, or the assignee of the tenant or (1) A person, however, who undertakes to execute any work, e.g., to construct a building, is called conductor, and the person who commissions him locator; the hirer of a house inquilinus. (2) When land is the subject-matter, the hirer is called colonus. (3) Unless the agreement was to be in writing. his hæredes. To put an end, however, to all doubts as to the nature of such an agreement, Zeno erected it into a special contract, Emphyteusis (1), which differed both from a sale and a Locatio, and the nature of which was defined by the terms agreed upon. In default of any agreement as to accidents, Zeno decreed that a total destruction should be at the charge of the proprietor, and that a partial loss should be at the charge of the Emphyteuta (2). § 4. If Titius agreed with a goldsmith that he should make him rings of a particular weight and pattern, and should procure the gold necessary for the purpose, and receive, say, 200 aurei, it was a question whether this was, a case of sale or locatio. Cassius considered it a Sale of the material and a Locatio of the handiwork. But it was ultimately held to be only a Sale: though it was never doubted that if Titius had furnished the material and fixed the price for the handiwork the contract would have been a Locatio. § 5. The extent of the respective obligations of the Locator and of the Conductor is determined by the terms appended to the contract; in default thereof ex æquo et bono (t. 22). The Locator is bound to deliver the thing let, and to keep it in such condition that the Conductor may make use of it during the whole period of the hiring. If, by any accident, the Locator cannot deliver the thing or maintain the hirer in the enjoyment thereof, the contract is annulled, or the rent released. The Locator must make good all damage to the Conductor occasioned by the thing let, if such damage has arisen even from slight negligence of such Locator. The Conductor must pay the sum agreed upon; he must act like a good pater-familias, bestowing the greatest diligence in preserving the thing, and he must restore it at the end of the hiring. Moreover, he is answerable for any loss or damage to the thing by his neglect; but otherwise the thing let stands at the risk of the proprietor. § 6. A hiring does not end with the death of the hirer: it continues (1) From év, UTEúw, either because a new ownership was grafted on the real dominium, or because under this contract' tenants obtained from the Republic or Municipia part of the uncultivated demesne lands in order to clear them. Such lands were called agri vectigales, but afterwards, like those let by the Emperor on similar terms, they were called emphyteuticarii (C. 11, 58, 61). The tenant in possession (emphyteuta) acquired a kind of servitude in the land (jus emphyteuticum), which gave him, subject to the payment the right to dispose of the land itself and its fruits; and he had a vindicatio (utilis, for he was not dominus), to recover rent, it. The jus superficiarum exactly corresponded to emphyteusis, except that it was confined to things on the surface of the land. (2) In the former case, the emphyteuta ceased to pay rent, whereas the purchaser of a thing sold had to pay the price. In the latter, the emphyteuta, whatever might be the loss incurred, had to pay the rent due, provided the land subsisted; whereas a colonus had not to pay rent when the crop had been destroyed by a blight, &c. The former case shows how emphyteusis differs from sale, the latter, how it differs from locatio. S for the benefit of his hæredes during the residue of the time fixed by the contract; the general rule being that contracts bind, not merely the parties but their hæredes (1). TITLE XXV. OF SOCIETAS (PARTNERSHIP). Partnership is a contract (2) by which the parties agree to put their goods or industry into a common fund, in order to share the resulting profits and losses. Pr. The text mentions two kinds of partnership: the societas alicujus negotiationis, confined to the sale and purchase of particular merchandise, as slaves or wine, and involving no profits or losses except such as result therefrom; the other, totorum bonorum, including all the goods, present and future, of the partners. There was a third, alicujus rei (§ 6), confined to one or more definite subject-matters: a fourth, of acquisitions (universorum quæ ex questu veniunt), including whatever the partners acquired by their industry or their economy, and therefore not including successions, legacies, and gifts. The parties are presumed to have entered into this last kind, if nothing has been said expressly as to the particular one intended. There was also a fifth, the societas vectigalis, for farming the public revenues. § 1. The share of each partner in the profit and loss was fixed thus: if the partners agreed as to the share of each, the agreement was the standard (3). If the share in the profits was fixed, and nothing was said of the loss, or vice versa, the amount fixed for the one determined that of the other (§ 3). If there was no agreement, each of the partners had an equal share in the profits and the losses (4). § 2. It was a question whether it might be agreed that one of the partners should have a larger share in the profits than in the losses. Mucius held such an agreement inconsistent with the nature of a An usu (1) Not so the usufruct. fructuary has a right in re, but a conductor has no such right; he has only a personal right (obligatio) to compel the locator to supply the enjoyment (B. 3, t. 13, n.). Hence, if a locator alienate the thing let, the alienee (unless there be an agreement to the contrary) may evict the conductor, to whom he is not personally liable, though the conductor may sue the locator for any damage sustained; whereas the bare proprietor cannot evict the owner of the usufruct (B. 2, t. 2) who has a right in re. (2) Therefore it requires consent of all parties. Hence, where several persons, without mutual consent, have an undivided share in a thing held in common, eg., a legacy, they are joint-owners, not partners, and have the action for partition, but not pro socio. (3) It was competent for the partners to agree that one should have two-thirds in the profits and losses (D. 17, 2, 29). (4) An absolute equality not one proportional to the contribution of each partner, because the industry of a poor partner may be allowed to stand instead of capital (D. 17, 2, 5, 1). |