cannot contain more than the principal; but they can be bound for less. Thus, if the principal debtor promised ten aurei, the fidejussor can well be bound for five, but not vice versa; and if the principal's promise is absolute, that of the fidejussor may be conditional, though a conditional promise cannot be absolutely guaranteed, for more and less is to be understood of time as well as of quantity, immediate payment being regarded as more, and future payment as less. For the 6 recovery of anything paid by him for the principal the fidejussor can sue the latter by the action on agency. A fidejussor 7 may be taken in Greek, by using the expressions Tŷ èμỷ míotel κελεύω, λέγω, θέλω, or βούλομαι; and φημί will be taken as equivalent to Aéyw. It is to be observed that in the stipulations 8 of fidejussors the general rule is that whatever is stated in writing to have been done is taken to have really been done; and accordingly it is settled law that if a man signs his name to a paper stating that he became a fidejussor, all formalities are presumed to have been duly observed.

TITLE XXI.

OF LITERAL OBLIGATION.

Formerly there was a kind of obligation made by writing, and said to be contracted by the entry of a debt in a ledger; but such entries have nowadays gone out of use. Of course, if a man states in writing that he owes money which has never been paid over to him, he cannot be allowed, after a considerable interval, to defend himself by the plea that the money was not in fact advanced; for this is a point which has frequently been settled by imperial constitutions. The consequence is, that even at the present day a person who is estopped from this plea is bound by his written signature, which (even of course where there is no stipulation) is ground for a condiction. The length of time after which this defence could not be pleaded was formerly fixed by imperial constitutions at five years; but it has been reduced by our constitution, in order to save creditors from a more extended risk of being defrauded of their money, so that now it cannot

L

be advanced after the lapse of two years from the date of the alleged payment.

TITLE XXII.

OF OBLIGATION BY CONSENT.

Obligations contracted by mere consent are exemplified by sale, hire, partnership and agency, which are called consensual contracts because no writing, nor the presence of the parties, nor any delivery is required to make the obligation actionable, but the consent of the parties is sufficient. Parties who are not present together therefore can form these contracts by letter, for instance, or by messenger: and they are in their nature bilateral, that is, both parties incur a reciprocal obligation to perform whatever is just and fair, whereas verbal contracts are unilateral, one party being promisee, and the other alone promisor.

TITLE XXIII.

OF PURCHASE AND SALE.

The contract of purchase and sale is complete immediately the price is agreed upon, and even before the price or as much as any earnest money is paid: for earnest money is merely evidence of the completion of the contract. In respect of sales unattested by any written evidence this is a reasonable rule, and so far as they are concerned we have made no innovations. By one of our constitutions, however, we have enacted, that no sale effected by an agreement in writing shall be good or binding, unless that agreement is written by the contracting parties themselves, or, if written by some one else, is at least signed by them, or finally, if written by a notary, is duly drawn by him and executed by the parties. So long as any of these requirements is unsatisfied, there is room to retract, and either purchaser or vendor may withdraw from the agreement with impunity-provided, that is to say, that no earnest has been given. Where earnest has been given, and either party refuses to perform the contract, that party, whether the agreement be in writing or not, if purchaser forfeits what he has given, and if vendor is compelled to restore double what he has received, even though there has

been no express agreement in the matter of earnest money. It is necessary that the price should be settled, for without a 1 price there can be no purchase and sale, and it ought to be a fixed and certain price. For instance, where the parties agreed that the thing should be sold at a price to be subsequently fixed by Titius, the older jurists doubted much whether this was a valid contract of sale or not. The doubt has been settled in the following way by our decision; if the third person named actually fixes the price, it must certainly be paid, as settled by him, and the thing must be delivered, in order to give effect to the sale; the purchaser (if not fairly treated) suing by the action on purchase, and the vendor by the action on sale. But if the third person named will not or cannot fix the price, the sale will be void, because no price has been settled. This rule, which we have adopted with regard to sales, may reasonably be extended also to contracts of hire. The price too should be in money; for it used to be 2 much disputed whether anything else, such as a slave, a piece of land, or a robe, could be treated as price. Sabinus and Cassius held the affirmative, explaining thus the common theory that exchange is a species, and the oldest species, of purchase and sale; and in their support they quoted the lines of Homer, who says in a certain passage that the army of the Greeks procured themselves wine by giving other things in exchange, the actual words being as follow: 'then the longhaired Greeks bought themselves wine, some with bronze, some with shining iron, some with hides, some with live oxen, some with slaves.'1 The other school maintained the negative, and distinguished between exchange on the one hand, and purchase and sale on the other: for if an exchange were the same thing as a sale, it would be impossible to determine which is the thing sold, and which is the price, and both things cannot be regarded in each of these characters. The opinion however of Proculus, who affirmed that exchange was a species of contract apart by itself, and distinct from sale, has deservedly prevailed, as it is confirmed by other lines from Homer, and by still more cogent reasons, and this has been admitted by preceding Emperors, and is fully stated in our Digest. As soon as the 3

Il. vii. 472 sqq.

contract of sale is concluded-that is, as we have said, as soon as the price is agreed upon, if the contract is not in writingthe thing sold is immediately at the risk of the purchaser, even though it has not yet been delivered to him. Accordingly, if a slave dies, or is injured in any part of his body, or if a house is either totally or partially burnt down, or if a piece of land is wholly or partially swept away by a river flood, or is reduced in acreage by an inundation, or made of less value by a storm blowing down some of its trees, the loss falls on the purchaser, who must pay the price even though he has not got what he purchased. The vendor is not responsible and does not suffer for anything not due to any design or fault of his own. If however, after the purchase of a piece of land, it receives an increase by alluvion, it is the purchaser who profits thereby: for the profit ought to belong to him who also bears the risk. And if a slave who has been sold runs away, or is stolen, without any design or fault of the vendor, one should look to see whether the latter expressly undertook to keep him safely until delivery was made; for, if he did this, the loss falls upon him, though otherwise he incurs no liability: and this is a rule which applies to all animals and other objects whatsoever. The vendor however will be bound to transfer to the purchaser all his rights of action for the recovery of the object or damages, for, not having yet delivered it to the purchaser, he still remains its owner, and the same holds good of the penal actions on theft and on 4 unlawful damage. A sale may be made conditionally as well as absolutely. The following is an example of a conditional sale: If Stichus meets with your approval within a certain 5 time, he shall be purchased by you for so many aurei. If a man buys a piece of land which is sacred, religious, or public, such as a forum or basilica, knowing it to be such, the purchase is void. But if the vendor has fraudulently induced him to believe that what he was buying was not sacred, or was private property, as he cannot legally have what he contracted for, he can bring the action on purchase to recover damages for what he has lost by the fraud; and the same rule applies to the purchase of a free man represented by the vendor to be a slave.

TITLE XXIV.

OF LETTING AND HIRING.

The contract of hire resembles very closely the contract of sale, and the same rules of law apply to both. Thus, as the contract of sale is concluded as soon as the price is agreed upon, so the contract of hire is held to be concluded as soon as the sum to be paid for the hiring is settled, and from that moment the letter has an action on the letting, and the hirer on the hiring. What we have said above as to a sale in 1 which the price is left to be fixed by a third person must be understood to apply also to a contract of hire in which the amount to be paid for hire is left to be fixed in the same way. Consequently, if a man gives clothes to a fuller to clean or finish, or to a tailor to mend, and the amount of hire is not fixed at the time, but left to subsequent agreement between the parties, a contract of hire cannot properly be said to have been concluded, but an action is given on the circumstances, as amounting to an innominate contract. Again, 2 a question often arose in connection with the contract of hire similar to that which was so common, namely, whether an exchange was a sale. For instance, what is the nature of the transaction if a man gives you the use or enjoyment of a thing, and receives in return the use or enjoyment of another thing from you? It is now settled that this is not a contract of hire, but a kind of contract apart by itself. Thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract. So nearly akin, indeed, is purchase and 3 sale to letting and hiring, that in some cases it is a question to which class of the two a contract belongs. As an instance may be taken those lands which are delivered over to be enjoyed for ever, upon the terms, that is to say, that so long as the rent is paid to the owner it shall not be lawful for the latter to take the lands away from either the original hirer,