unam eam continet, si quis dominium rei petierit. Paul. Evicta re ex empto actio non ad pre- Ulp.: Emptori duplam promitti a venditore oportet, nisi aliud convenit.-1. 37 pr. eod.3 Afric. Si sciens alienam rem ignoranti mihi vendideris, etiam prius quam evincatur, utiliter me ex empto acturum putavit in id, quanti mea intersit meam esse factam.-1. 30, § 1, D. de A. E. V. Paul. Si vendideris servum mihi Titii, deinde Titius heredem me reliquerit, Sabinus ait amissam actionem pro evictione, quoniam servus non potest evinci sed in ex empto actionem decurrendum est. 1. 9, D. de evict." Id.: Si cum possit emptor auctori denuntiare, non denuntiasset idemque victus fuisset, quoniam parum instructus esset, hoc ipso videtur dolo 1 The stipulation for double the amount extends not merely to that single recovery when a man claims and recovers the ownership of property, but also when the Servian action is brought. 2 When property has been recovered, the action upon the purchase avails not only for the recovery of the purchase-money, but for the value to the person; therefore even if it has diminished in value, the loss is the purchaser's. 3 Double the amount must be promised to the purchaser by the vendor, unless another amount be agreed upon. a a BOOK III. Pt. I. Ch. II. If you have advisedly sold to me, without my knowledge, property of another man, he was of opinion that even before « Africanus, recovery I can bring an equitable action upon the purchase for the amount of my interest in the thing being made mine. 5 If you have sold to me Titius's slave, and Tit. has afterwards made me his heir, Sabin. says the action for recovery is gone, since the slave cannot be recovered; but I must have recourse to an action upon the purchase. BOOK III. Pt. I. Ch. II. Comp. of Engl. and fecisse et ex stipulatu agere non potest.-1. 53, § I eod.1 Imp. Alex. Emptor fundi, nisi auctori denuntiaverit, evicto praedio neque ex stipulatu neque ex empto actionem contra venditorem habet.1. 8, C. eod. 8, 44 (45).3 Paul. ii. 17, 3: Res empta, mancipatione et traditione perfecta, si evincatur, auctoritatis venditor duplotenus obligatur.3 The vendor has always to warrant the qualities of the thing of which assurance is given (dicta promissa). For the more considerable latent defects of a thing, which were not disclosed, he was according to ius civile only responsible in the case of fraudulent silence, but by the Aedilian Edict he is liable absolutely. The purchaser has by this edict the option of the a See Paterson, 'actio redhibitoria'a for rescission of the purchase, or the actio aestimatoria' (quanti minoris) for proportionate reduction of the purchase-money. Here also 'duplae stipulatio' was usual. Scott. Law,' S. 454. Cic. de off. iii. 16, 65: Cum ex XII tabulis satis esset ea praestari, quae essent lingua nuncupata, quae qui infitiatus esset dupli poenam subiret, a iurisconsultis etiam reticentiae poena est constituta.* 1 If the purchaser, when in a position to cite his warrantor, had not cited him, and had been worsted, since he was little prepared (for the defence), in this very point does his act appear to have been colourable, and he cannot sue upon the stipulation. Unless the purchaser of land, upon the recovery of the estate, has cited the warrantor, he has against the vendor neither an action upon the stipulation nor one upon the purchase. 3 If a thing is recovered, the purchase of which has been made perfect by mancipation and delivery, the vendor of the title is made liable in double the amount. compensa 4 Whilst by the Twelve Tables it was enough that tion should be given for such points as had been expressly mentioned, and that he who had misrepresented them should be liable for double damages, a like penalty was imposed by the jurists on silence. : Ulp. Quod venditor ut commendet dicit, sic habendum, quasi neque dictum neque promissum est.--D. 4, 3, 37. Paul. ii. 17, § 4: Distracto fundo si quis de Aiunt aediles: QVI MANCIPIA VENDVNT, CERTI- Aediles aiunt: QVI IVMENTA VENDVNT PALAM ... MORBI VITIIVE CAVSA INEMPTIS FACIENDIS IN 1 That which a vendor alleges in order to recommend his wares is to be regarded as though neither alleged nor promised. 2 If a person make a false representation as to the measure of a field subject to distraint, he is sued for double the amount that he has misrepresented, after due valuation made by the iudex. The aediles say: 'Let them that sell slaves apprise the purchasers of disease or flaw affecting each that is a fugitive, or vagrant, or not discharged from punishment for a tort, and let them openly and correctly declare all such things when those slaves shall be sold. But if a slave should have been sold contrary to these rules, or contrary to that which shall have been stated or promised when he was sold, for so much of it as it is said ought to be made good, we will give an action to the purchaser and to all whom this concerns, that such slave may be taken back.' The aediles say: 'Let those who sell beasts of draught BOOK III. Pt. 1. Ch. II. a See Bell, s. 'Location.' Ulp. Causa huius edicti proponendi est, ut occurratur fallaciis vendentium et emptoribus succurratur: . . . dummodo sciamus venditorem, etiamsi ignoravit ea quae aediles praestari iubent, tamen teneri debere. Nec hoc est iniquum potuit enim ea nota habere; neque enim interest emptoris, cur fallatur, ignorantia venditoris an calliditate.-1. 1, § 2 eod.1 Labeo scribit edictum aedilium curulium de venditionibus rerum esse tam earum quae soli sunt, quam earum quae mobiles aut se moventes.— Ibid. pr. $123. HIRING OR LETTING. HIRING OF LETTING (locatio et conductio") is the coutract by which is promised either the transfer of the use of a thing (locatio conductio rei), or the performance of certain services (locatio conductio operarum, or operis) for a certain time, in consideration of an D. 19, 5, 5, 2; equivalent in money (merces, pensio, vectura); exand § 122, ad ceptionally also in natural produce of a fruit-bearing thing (colonus partiarius). The same holds good with § 122, and D. regard to the merces and the completion of the contract as with purchase. The contract of Hiring or init. C 19, 5, 22. openly and correctly declare what disease or flaw any one of them may have . . . if anything shall not have so been done, we will give an action within six months for a rescission of the purchase, upon the ground of disease or flaw, or within one year for as much as they were depreciated when sold.' The reason for setting forth this edict is, to check the devices of vendors, and that relief may be afforded to purchasers. . . only that we ought to know that a vendor, although he was not aware of what the aediles command to be done, must nevertheless be held liable. And this is not unfair; for the vendor could have known it, for it makes no difference to the purchaser why he is deceived, whether by the ignorance or the craft of the vendor. 2 Labeo writes that the edict of the curule aediles treats of purchases as well of those things which appertain to the soil, as of those which are movable or set themselves in motion. Letting creates a mutual obligation, to be enforced by Sicut vulgo quaerebatur, an permutatis rebus unum quis bovem haberet et vicinus eius unum, BOOK III. Pt. I. Ch. II. First, of the hiring of a thing (locatio conductio rerum). The hirer, called conductor (colonus, inquilinus), acquires the mere detention of the thing,a a C. 7, 30. which he has to treat conformably to the contract; upon the termination of which he has to return it to the lessor in the same condition as he received it, and to discharge the amount of the hire. Conductor omnia secundum legem conductionis facere debet, et si quid in lege praetermissum 1 Just as it used to be a moot point whether a contract of purchase results from an exchange of commodities, so too was a question commonly raised concerning letting and hiring, if a man gave you anything to be used or enjoyed, and in turn received from you something else to be used or enjoyed; and it has been settled that this is not a letting and hiring, but a special class of contract. For example, if when a man should have an ox, and his neighbour one, and they have mutually decided to lend one another the oxen for ten days at a time to do some work, and an ox has died in the hands of one party, an action lies neither upon hiring or letting, nor upon loan, because it was not a gratuitous loan, but proceedings must be taken by an action on the case. |