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This power of calling on the creditor to prove that he had really made the loan was extended to cases where the debtor had not gone through the form of the contract literis, but had merely given a general acknowledgment of debt (cautio), such as is spoken of in the text. Although cautiones were not properly contracts, but. proofs of a contract, yet as they were protected by the same exception (C. iv. 30. 3), they were equivalent to and superseded contracts literis. It will be noticed that the text uses the words scriptura obligetur, as if the obligation was created by the writing. This may account for Justinian at once telling us that contracts literis were obsolete, and yet giving them a place in the Institutes.
After a certain number of years—first one, then five, and fixed by Justinian at two—the debtor was bound by the writing conclusively. (C. iv. 30. 14.) During this period, however, the debtor who had not really received the money need not wait to be sued; he might protest in a public act against any writing by which he admitted a debt, or bring an action against the creditor to compel him to give it up (C. iv. 30. 7); and a constitution in the Code (iv. 30. 14. 4) permitted him to make his exception perpetual by à formal announcement to the creditor of his intention to do so, and by his going through certain forms. If it was proved that the debtor had falsely denied having received what he had really received, Justinian ordered by a Novel (18. 8) that he should pay double the amount.
Tit. XXII. DE CONSENSU OBLIGATIONE.
Consensu fiunt obligationes in Obligations are formed by the mere Jemptionibus venditionibus, locatio- consent of the parties in the contracts
nibus conductionibus, societatibus, of sale, of letting to hire, of partner| mandatis. Ideo autem istis modis ship, and of mandate. An obligation consensu dicitur obligatio contrahi, is, in these cases, said to be made by quia neque scriptura neque præsen- the mere consent of the parties, betia omnimodo opus est, ac ne dari cause there is no necessity for any quidquam necesse est, ut substan- writing, nor even for the presence of tiam capiat obligatio, sed sufficit eos, the parties ; nor is it requisite that qui negotium gerunt, consentire. anything should be given to make the Ūnde inter absentes quoque talia contract binding, but the mere consent negotia contrahuntur, veluti per of those between whom the transaction epistulam aut per nuntium. Item is carried on suffices. Thus these conin his contractibus alter alteri obli- tracts may be entered into by those gatur in id, quod alterum alteri ex who are at a distance from each other bono et æquo præstare oportet, cum by means of letters, for instance, or of alioquin in verborum obligationibus messengers. In these contracts each alius stipuletur, alius promittat. party is bound to the other to render
him all that equity demands, while in verbal obligations one party stipulates
and the other promises.
GAI. Üï. 135. 137. We now pass to contracts which belong to the jus gentium, which have nothing of the peculiar characteristics of the old civil law of Rome, and which are perfected by the simple consent of the parties. As is remarked in the concluding words of the text, these contracts by simple consent, unlike the contracts of which we have hitherto spoken, are bilateral; there is something which binds both parties; whereas the older and peculiarly Roman contracts were only unilateral. In a stipulation, for instance, it was only the promissor that was bound. Commodatum, depositum, and pignus were only bilateral in the sense that they gave rise to actiones contrario under certain circumstances, so that then both parties were bound by them. These contracts consensu' were not enforced by actions stricti juris, such as were proper to the peculiarly Roman contracts of mutuum, stipulation, and contracts made literis, but by actions "bonce fidei,' i.e. prætorian actions, in which equitable principles were permitted to govern the decision. (See Introd. sec. 106.)
Tit. XXIII. DE EMPTIONE ET VENDITIONE.
Emptio et venditio contrahitur, The contract of sale is formed as simulatque de pretio convenerit, soon as the price is agreed upon, quamvis nondum pretium numera- although it has not yet been paid, nor tum sit ac ne arra quidem data even an earnest given ; for what is fuerit. Nam quod arræ nomine given as an earnest only serves as datur, argumentum est emptionis proof that the contract has been made. et venditionis contractæ. Sed hæc This must be understood of sales made quidem de emptionibus et vendi- without writing ; for with regard to tionibus, quæ sine scriptura consi- these we have made no alteration in stunt, optinere oportet: nam nihil a the law. But, where there is a writnobis in hujusmodi venditionibus ten contract, we have enacted that a innovatum est. In his autem, quæ sale is not to be considered completed scriptura conficiuntur, non aliter unless an instrument of sale has been perfectam esse emptionem et vendi- drawn up, being either written by the tionem constituimus, nisi et instru- contracting parties, or at least signed menta emptionis fuerint conscripta by them, if written by others; or if. vel manu propria contrahentium, drawn up by a tabellio, it must vel ab alio quidem scripta, a con- be formally complete and finished trahente autem subscripta et, si per throughout; for as long as any of tabellionem fiunt, nisi et comple- these requirements is wanting, there tiones acceperint et fuerint partibus is room to retract, and either the absoluta. Donec enim aliquid ex buyer or seller may retract without his deest, et poenitentiæ locus est et suffering loss ; that is, if no earnest potest emptor vel venditor sine has been given. If earnest has been poena recedere ab emptione. Ita given, then, whether the contract was tamen impune recedere eis concedi- written or unwritten, the purchaser, if mus, nisi jam arrarum nomine ali- he refuses to fulfil it, loses what he has quid fuerit datum : hoc etenim sub- given as earnest, and the seller, if he secuto, sive in scriptis sive sine refuses, has to restore double; although scriptis venditio celebrata est, is, no agreement on the subject of the qui recusat adimplere contractum, earnest was expressly made. si quidem emptor est, perdit, quod dedit, si vero venditor, duplum restituere compellitur, licet nihil super arris expressum est.
Gai. iii. 139 ; C. iv, 21. 17.
The contract of sale belonging to the jus gentium was attended with none of those material symbols which characterised the formation of contracts under the civil law. Directly one person agreed to sell a particular thing, and another to buy it, for a fixed sum of money, the contract was complete; no thing need be delivered, no money paid, in order that an obligation should arise. On the mutual consent being given, the seller was bound to deliver, the buyer to pay the price. The change which Justinian bere introduced is that, when, in giving this mutual consent, they agree that the terms of the contract shall be reduced to writing, they shall be considered not to have consented to the contract until all the formalities have been gone through.
The arrce were either signs of a bargain having been struck, as, for instance, when the buyer deposited his ring with the seller (D. xix. 1. 11. 6), or consisted of an advance of a portion of the purchase-money. They were also intended as a proof that the purchase had been made. Justinian gave these deposits a new character by making them the measures of a forfeit in case either party wished to recede from his bargain, it being open to either party to retract if he chose to incur this forfeit. This power of retracting by forfeiture of the deposit, or double its value, was a great change in the law; and when Justinian says nihil in hujusmodi venditionibus innovatum est, he must be understood only to be referring to unwritten contracts of sale, in which there was no deposit made as earnest. It will be seen from the text that this power of retractation was given whether the contract was made with writing or without.
Besides a buyer and a seller, there must, in a contract of sale, be a fixed price and a particular thing sold. The jurists are very minute in their distinctions of the nature of the thing sold. There is a distinction with regard to things future and uncertain forming the object of a sale, which is worth mentioning. Either a proportionate price may be agreed to be paid on a greater or lesser number of things that may be actually realised, as so much a head for all the fish I catch to-day,' which is termed rei sperato emptio; or a definite sum may be agreed on as the price of the possibility of any number of things, more or less, being realised, as so much for the chance of all the fish I catch to-day;' and this was termed spei emptio. (D. xviii. 1. 8. 1.) 1 1. Pretium autem constitui opor- 1. It is necessary that a price tet: nam nulla emptio sine pretio should be agreed upon, for there can esse potest. Sed et certum pre- be no sale without a price. And the tium esse debet. Alioquin si ita price must be fixed and certain. If 'inter aliquos convenerit, ut, quanti the parties agree that the thing shall Titius rem æstimaverit, tanti sit be sold at the sum at which Titius empta : inter veteres satis abunde- shall value it, it was a question mucil que hoc dubitabatur, sive constat debated among the ancients, whether venditio sive non. Sed nostra decisio in such a case there is a sale or not. ita hocconstituit, ut, quotiens sic com- We have decided, that when a sale is posita sit venditio quanti ille resti- made for a price to be fixed by a third maverit,' sub hac condicione staret person, the contract shall be binding
contractus, ut, si quidem ipse, qui under this condition—that if this third nominatus est, pretium definierit, person does fix a price, the price to be omnimodo secundum ejus æstima- paid shall be determined by that which tionem et pretium persolvatur et res he fixes, and the thing shall be detradatur, ut venditio ad effectum livered so that the sale becomes comperducatur, emptore quidem ex plete, the purchaser having the actio empto actione, venditore autem ex er empto, and the seller having that vendito agente. Sin autem ille, qui ex vendito. But if he will not or nominatus est, vel noluerit vel non cannot fix a price, the sale is then potuerit pretium definire, tunc pro void, as being made without any price nihilo esse venditionem, quasi nullo being fixed on. This decision, which pretio statuto. Quod jus cum in we have adopted with respect to sales, venditionibus nobis placuit, non est may reasonably be made to apply to absurdum et in locationibus et con- contracts of letting on hire. ductionibus trahere.
GAI. iii. 140 ; C. iv. 38. 15. 2. Item pretium in numerata 2. The price should consist in a sum pecunia consistere debet. Nam in of money. It has been much doubted ceteris rebus an pretium esse possit, whether it can consist in anything else, veluti homo aut fundus aut toga as in a slave, a piece of land, or a toga. alterius rei pretium esse possit, valde Sabinus and Cassius thought that it quærebatur. Sabinus et Cassius could. And it is thus that it is cometiam in alia re putant posse pretium monly said that exchange is a sale, consistere : unde illud est, quod and that this form of sale is the most vulgo dicebatur, per permutationem ancient. The testimony of Homer was rerum emptionem et venditionem quoted, who in one place says that the contrahi eamque speciem emptionis army of the Greeks procured wine by venditionisque vetustissimam esse : an exchange of certain things. The argumentoque utebantur Græco passage is this : poeta Homero, qui aliqua parte exer- "The long-haired Achæans procitum Achivorum vinum sibi com- cured wine, some by giving copper, parasse ait permutatis quibusdam others by giving shining steel, others rebus, his verbis :
by giving hides, others by giving oxen,
others by giving slaves.' "Ενθεν άρ' οινίζοντο καρηκομόωντες The authors of the opposite school 'Axaloi,
were of a contrary opinion : they “AAAot uêy xa xa, Alot 8 aidow
thought that exchange was one thing inpas
and sale another. Otherwise, in an 'Alloi dè Þuvois, älo. 8 avr oi Bó
exchange, it would be impossible to €001,
say which was the thing sold, and "Alloc 8 åvòpatródeo ol.
which the thing given as the price;
for it was contrary to reason to conDiversæ scholæ auctores contra sider each thing as at once sold, and sentiebant aliudque esse existima given as the price. The opinion of bant permutationem rerum, aliud Proculus, who maintained that examptionem et venditionem. Alio change is a particular kind of contract quin non posse rem expediri, permu- distinct from sale, has deservedly pretatis rebus, quæ videatur res venisse vailed, as it is supported by other et quæ pretii nomine data esse : lines from Homer, and by still more nam utramque videri et venisse et weighty reasons. This view has been pretii nomine datam esse, rationem adopted by former emperors, and has non pati. Sed Proculi sententia been fully treated of in our Digests. dicentis, permutationem propriam esse speciem contractus a venditione separatam, merito prævaluit, cum et ipse aliis Homericis versibus adjuvatur et validioribus rationibus argumentatur. Quod et anteriores divi principes admiserunt et in nostris digestis latius significatur.
Gai. iii. 141 ; D. xviii. 1. 1. 11 ; C. iv. 64. 7.
A sale and an exchange differ so little that it might seem natural to treat the promise to exchange as raising an obligation equally with the promise to deliver a thing sold ; it was indeed the opinion of the Sabinians that it did so; but this opinion did not prevail, and the law recognised no obligation as existing under an agreement to exchange unless one party had delivered to the other the thing he had promised. Ex placito permutationis nulla re secuta, Iconstat nemini actionem competere. (C. iv. 64. 3.) Thus the distinction between sale and exchange was that in the former the contract was made consensu, in the other re: when one party had delivered the thing, the other was obliged to give the other thing. Permutatio ex re tradita initium obligationi praebet. (D. xix. 4. 1. 2.)
In a contract of sale the seller was not bound to make the buyer absolute master (dominus) of the thing sold, as he would have been in a stipulation. (D. xviii. 1. 25. 1.) What he was bound to do was this: 1st. He was bound to deliver the thing itself (præstare, tradere) (D. xix. 1. 11. 2), to give free and undisturbed possession of it (possessionem vacuam præstare) (D. xix. 1. 2. 1), and to give lawful possession of it (prastare licere habere). (D. xix. 1. 30. 1.) 2ndly. He was bound, if the buyer was disturbed in his possession by the real owner (which was termed evictio), to recompense him for what he lost. (D. xix. 1. 11. 2.) And 3rdly. To secure the buyer against secret faults; if such faults were discovered, either compensation might be claimed by an actio estimatoria, to a greater or less amount, according as the seller had or had not knowledge of the defect (D, xix. 1.13), or, at the option of the buyer, the contract might be rescinded, and the thing returned (which was termed redhibitiomredhibere est facere ut rursus habeat venditor quod habuerit). (D. xxi. 1. 21.) In order to fortify his position, the buyer could stipulate with the seller, and make the seller promise that he would give, not the free possession only, but the dominium of the thing, and that he would pay the buyer double the price if the buyer was evicted. The buyer would then have an action er stipulatu to enforce the undertaking. Even if there was no such stipulation actually made, yet after it had become usual to make such stipulations, custom was held to have so far imported the promise into the contract of sale that the buyer, in bringing the action appropriate to his contract, actio ex empto, could obtain double the price in case of eviction, as this action was bonae fidei, i.e. the parties could be placed in a fair position towards each other, and it was considered that to have given the promise to pay double the price in case of eviction was a duty of the seller. (D. xxi. 2. 2.)
The buyer was bound to make the seller the real owner of the money paid as the price (emptor nummos venditoris facere cogitur, D. xix. 1. 11.2), and was also bound to pay interest on the purchase money from the day when he had received the thing sold. (D. xix. 1. 13. 20.)
The lines cited in the text are from Il. vii. 472 ; probably the