Commentaries on Colonial and Foreign Laws

When there has been delay both by the vendor and purchaser, the risk is continued on the purchaser. (a) A subsequent delay purges that which preceded it, and the latter delay is alone to be considered in determining whether the party who had been guilty of it has subjected himself to, or relieved the other party from responsibility: "Si interpellavero venditorem, et non dederit id quod emeram, deinde, posteriore offerente illo, ego non acceperim? Sane hoc casu nocere mihi deberet." (b)

In alternative sales, as where the sale be of the house in A., or the house in B., to be chosen either by the vendor or purchaser, for it is immaterial by which of them the choice is to be made, if one of the houses is destroyed before delivery, the other house must be given, and thus the loss of the former must be sustained by the vendor. But the remaining house will then be at the risk of the purchaser. If both houses should be destroyed, one only would be at the risk of the purchaser: "Si emptio ita facta fuerit, est mihi emptus Stichus, aut Pamphilus: in potestate est venditoris, quem velit dare, sicut in stipulationibus: sed uno mortuo, qui superest, dandus est: et ideo prioris periculum ad venditorem, posterioris ad emptorem respicit. Sed et si pariter decesserunt, pretium debebitur: unus enim utique periculo emptoris vixit. Idem dicendum est, etiam si emptoris fuit arbitrium quem vellet habere: si modo hoc solùm arbitrio ejus commissum sit, ut, quem voluisset, emptum haberet; non et illud, an emptum haberet." (c)

This rule is followed by Pothier. (d)

In sales which are conditional, or subject to a contingency, if the condition does not exist, or the contingency does not happen, there is no sale, and consequently (a) Dig. lib. 19, tit. 1, de Act. Empt. 1. 51.

(b) Dig. lib. 18, tit. 6, 1. 17. Voet, lib. 18, tit. 6, n. 2.

(d) Pothier, Tr. des Oblig. n. 245, et seq. Voet, lib. 18, tit. 6, n. 3.

the whole loss falls on the vendor. But if the condition does take effect, or the contingency happens, and thus the sale be complete, any partial damage or deterioration which the property pending the condition or contingency may have sustained, without the fault of the vendor, falls on the purchaser. But if, pending the condition, and before it has either taken effect or failed, the whole property is destroyed, the whole loss falls on the vendor. (a)

The sale, according to a preceding definition, is perfect, "si id quod venerit appareat quid, quale, quantum sit." In the sale of articles consisting of quantity, and where the price may depend on the number, weight, or measure, the sale may be incomplete before the number has been counted, or the weighing or measurement taken place.

If the commodity be sold in bulk, per aversionem, at a certain price for the whole, or at a certain price for each article, or each ton, or each acre of which the subject may consist, the sale is perfect, and therefore subject to the ordinary rule, and the purchaser takes the risk. But if the acts of counting, weighing, or measuring are resorted to, for the purpose of demonstrating the actual number of articles, of tons, or acres of a farm which are sold, these acts must take place before the sale can be considered complete, and until they have been performed the property remains at the risk of the vendor. (b)

These principles were adopted by the law of France and the Code Civil, (c) and they will be found to have been recognised by the law of Holland and Spain, and by the jurisprudence of England and Scotland. (d)

(a) Gomez, Var. Res. tom. 2, c. 2, n. 32. Fab. Cod. lib. 4, tit. 41, def. 8, n. 2. Carpz. Def. For. part 2, con. 26, def. 21, 22. Pothier, Tr. de Vente, n. 312. (b) Brunneman, ad Pand. lib. 18, tit. 6, ad l. 5.

(d) Voet, lib. 18, tit. 5, n. 4. Gomez, Var. Res. c. 2, n. 32. Rugg v. Minett, 11 East, 210. Campbell v. Barry, July 15th, 1748, Kilk. 377.

Although, by the constitution of the Emperor Charles the Fifth, the sale of real property is not valid, unless the delivery of it be made according to the lex loci rei sitæ, yet the law of Holland has, in the sale of real and personal property, retained the principles of the civil law with respect to the parties on whom the risk of the property sold should fall, or by whom the benefit should be enjoyed. (a)

These solemnities were introduced, not to vary the nature of the contract of sale between the parties, but to protect the creditors of the vendor against his clandestine alienation of his property. (b)

A sale, made sub hasta, is not perfect until the tabulæ addictionis are signed. As there can, after that time, be no higher bidder, and as he then becomes entitled to the fruits, he becomes liable to the risk. (c) Not only is the property sold at the risk of the purchaser, but he takes it subject to all those burthens and charges which are inherent in or attached to it, as taxes, rents, and the like, both those which may thereafter accrue, and those which may have been previously imposed, and be then in arrear. (d)

A contract to deliver a certain quantity of corn from a farm does not create a lien on the farm to which the purchaser is subject, unless it be specially charged on the farm with the same solemnities which would be required in creating any real burthen on immoveable property. (e)

As it is just that he who sustains the burthens and risks of the sale should also enjoy the profits, (ƒ) it is a

(a) Groeneweg. ad § 3, Grot. Manuduct. 2, c. 5, n. 18.

(b) Neostad, Cur. Sup. Decis. 70. Matth. Paræm, 5, n. 15. Voet, lib. 18, tit. 6, n. 6.

(d) Groeneweg. ad Dig. de Cont. Empt. 1. ult. Matth. de Auct. lib. 1,

rule recognised by all the systems of jurisprudence, that, when the sale is perfect, all the rents, fruits, profits of the property, and all the augmentations which it receives, belong to the purchaser. (a)

Trees which, after the farm has been looked at by the purchaser, but before the sale has been completed, have been blown down by a storm, cease to be part of the farm, and, therefore, do not belong to the purchaser. (b)

SECTION VII.

OBLIGATIONS AND RIGHTS OF VENDOR AND PURCHASER

WARRANTY-EVICTION, &c.

Obligation of vendor to deliver.-And discharged from incumbrances, &c.— How far he is bound to make the purchaser the proprietor.-Doctrine of the civil law, and of the other systems which are founded on it.-Of the law of Scotland, England, and the Code Civil.-How far, according to the civil law, the delivery of the property could be compelled by judicial sentence. The conflicting opinions of jurists upon this question.—The doctrine of the law of England, Scotland, and the Code Civil.-Warranty implied and express against eviction.—Eviction total or in part.—When the purchaser was precluded from availing himself of the warranty.-Warranty against defects.-Actio redhibitoria and quanti minoris.-The extent of the damages to which the vendor is liable in case of non-delivery or of eviction. Obligation of the purchaser to pay the price, actio empti et venditi.

THE purchaser, by force of the contract, acquires the right to demand and receive, and the vendor incurs the obligation of making to him the tradition or actual delivery of the property, if it be corporeal, together with all the fruits and profits received since the time of the purchase, and all those things which are deemed accessions either because they are expressly or by usage, and

(a) Voet, lib. 18, tit. 6, n. 9.

(b) Ib. lib. 18, tit 6, n. 10.

from the nature of the purchase comprised in it. Thus, the sale of a farm or field includes whatever is upon or affixed to the soil, as trees, vines, osier beds, nurseries of young trees, metals, mines, stone quarries, the crop on the ground, and dung and litter on the farm, unless any of these are excepted. (a)

But that which has been cut or fallen before the sale, although after the farm had been looked at by the purchaser, does not pass to him. (b)

In the sale of an house, gardens attached to and used with it are considered as accessories, and pass with it, as well as any article which formed part of and was affixed to the house, and even articles which had been removed from it with the intention of being returned or replaced. (c)

But those articles which were in the house for necessary use, or for ornament, or luxury, are not considered as appurtenant to the house, and are not, therefore, included in the sale of it, nor even those things which were never actually fixed, although brought to the house for the purpose of being affixed to it. (d)

The seller ought to give to the purchaser the free and exclusive possession. (e)

When such possession has been delivered, if the vendor were the owner, the purchaser also becomes the owner; but if the vendor were not the owner, the purchaser's only remedy is by action for the eviction: "Vacua possessio emptori tradita non intelligitur, si alius in eà legatorum fideive commissorum servandorum causâ in possessione est, aut creditores bona possideant. Idem dicendum est, si venter in possessione sit, nam et ad hoc pertinet vacui appellatio." "Ratio possessionis, quæ

(a) Dig. lib. 19, tit. 1, 1. 11, § 1. Ib. 1. 13, 14, 1. 17, § 7, 8. Voet, lib. 19, tit. 1, n. 3. Carpz. Def. For. part 2, const. 33, def. 19. (b) Voet, lib. 19, tit. 1, n. 4.

(d) Dig. lib. 19, tit. 1, 1. 17. Pothier, ad Pand. lib. 19, tit. 1, § 14. Voet, lib. 19, tit. 1, n. 11.

(e) Ib.

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Commentaries on Colonial and Foreign Laws: Generally, and in Their ..., Volume 2