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alii versus alluded to are those describing the exchange between Glaucus and Diomede (Il. vi. 235).
3. Cum autem emptio et venditio 3. As soon as the sale is contracted, contracta sit (quod effici diximus, that is, in the case of a sale made simulatque de pretio convenerit, without writing, when the parties cum sine scriptura res agitur), peri- have agreed on the price, all risk culum rei venditæ statim ad em- attaching to the thing sold falls upon ptorem pertinet, tametsi adhuc ea the purchaser, although the thing has res emptori tradita non sit. Itaque not yet been delivered to him. Theresi homo mortuus sit vel aliqua parte fore, if the slave sold dies or receives corporis læsus fuerit, aut ædes totæ an injury in any part of his body, or aut aliqua ex parte incendio consum- a whole or a portion of the house is ptæ fuerint, aut fundus vi fluminis burnt, or a whole or a portion of the totus vel aliqua ex parte ablatus sit, land is carried by the force of a flood, sive etiam inundatione aquæ aut or is diminished or deteriorated by an arboribus turbine dejectis longe inundation, or by a tempest making minor aut deterior esse coeperit: havoc with the trees, the loss falls emptoris damnum est, cui necesse on the purchaser, and although he est, licet rem non fuerit nactus, does not receive the thing, he is obpretium solvere. Quidquid enim liged to pay the price, for the seller sine dolo et culpa venditoris accidit, does not suffer for anything which in eo venditor securus est. Sed et happens without any fraud or fault si post emptionem fundo aliquid per of his. On the other hand, if after alluvionem accessit, ad emptoris the sale the land is increased by commodum pertinet : nam et com- alluvion, it is the purchaser who remodum ejus esse debet, cujus peri- ceives the advantage, for he who bears culum est. Quodsi fugerit homo, the risk of harm ought to receive the qui veniit, aut subreptus fuerit, ita ut benefit of all that is advantageous. But neque dolus neque culpa venditoris if a slave who has been sold runs interveniat, animadvertendum erit, away or is stolen, without any fraud an custodiam ejus usque ad traditio- or fault on the part of the seller, we nem venditorsusceperit. Sane enim, must inquire whether the seller undersi susceperit, ad ipsius periculum is took to keep him safely until he was casus pertinet : si non susceperit, delivered over ; if he undertook this, securns erit. Idem et in ceteris what happens is at his risk ; if he did animalibus ceterisque rebus intellegi- not undertake it, he is not responsible. mus. Utique tamen vindicationem The same would hold in the case of rei et condictionem exhibere debebit any other animal or any other thing, emptori, quia sane, qui rem nondum but the seller is in any case bound to emptori tradidit, adhuc ipse dominus make over to the purchaser his right est. Idem est etiam de furti et de to a real or personal action, for the damni injuriæ actione.
person who has not delivered the thing is still its owner ; and it is the same with regard to the action of theft,
and the action damni injuriæ. D. xviii. 6–8; D. xvii. 1. 35. 4.
The contract of sale was complete when the price had been fixed, but the thing sold did not pass to the buyer thereby. The seller retained the proprietorship (dominiun) until he delivered it to the buyer, and the buyer received it, or until the property in it was passed by the buyer having paid the price, or given security for it, or in some way satisfied the seller (cre soluto vel fidejussore dato vel alias satisfacto, D. xiv. 4. 5. 18). Until this happened, the seller retained the thing in his custody, and if it had, meanwhile, any accretion, or suffered any diminution, he was still the dominus of the thing which was increased or decreased. But his obligation
bound him to deliver the thing exactly in the state in which it might happen to be at the time of delivery; and so it made no real difference to him whether there was an accretion or diminution. If the thing was lost by accident, the loss fell on the buyer and not on the seller, the dominus; so res domino perit could not be said of him. But, whatever happened to the thing sold, the price fixed on remained due. For, the obligation of the buyer being a distinct and independent obligation, the price could not alter, but remained fixed. The seller was, however, answerable for the care with which he preserved the thing while in his custody, periculum reiad emptorem pertinet, dummodo custodiam venditor aut traditionem præstet (D. xlvii. 2. 14. pr.); and he was not only bound to guard against gross and ordinary negligence (dolum et culpam praestare, D. xiii. 6. 5. 2), but to preserve it more care fully even than his own property, diligentiam præstet exactiorem, quam in suis rebus adhiberet. (D. xviii. 6. 3.). He was bound to exercise the care of a bonus paterfamilias. In the text the case of a slave is taken, and a bonus paterfamilias might exercise the diligence proper to him, and yet a slave might run away. The loss would fall on the buyer, unless the seller had specially undertaken that he would keep him safely.
The actio furti and the actio damni injuriæ are noticed in Tit. 1 and 4 of the Fourth Book. If the thing was stolen or injured by a third person, without the fault of the seller, the buyer suffered the loss, but the seller was obliged to cede to the buyer the actions which as dominus he had against the thief or the doer of the injury.
4. Emptio tam sub condicione 4. A sale may be made conditionally quam pure contrahi potest. Sub or unconditionally ; conditionally, as, condicione veluti 'si Stichus intra for example, "If Stichus suits you certum diem tibi placuerit, erit tibi within a certain time, he shall be puremptus aureis tot.
chased by you at such a price.'
Gai. iii. 146. The exact opposite might be contracted for: if within a certain time you find Stichus does not suit you, let it be considered you have not bought him. The jurists then said that the sale was a pura emptio, quæ sub conditione resolvitur. (D. xli. 4. 2. 5.) Stichus is sold, but within a certain time the contract may be rescinded.
The generic name for the accessory agreements which modified the principal contract was pacta. Some of these pacta relating
to the contract of sale are treated of at considerable length in the i Digest (D. xviii. 2 and 3), different names being appropriated to
those most frequently in use; as, for instance, the in diem a:ldictio, when the thing was sold, but if the seller had a better offer within a certain time, the contract might be rescinded (D. xviii. 2); and the lex commissoria, which was a general agreement for the rescission of the contract if either party violated its terms, and was especially used to enable the seller to demand back the thing sold, if the price was not paid by a certain day.
We may observe that the Code (iv. 44. 2 and 8) permits a seller at all times to rescind a contract if he has not received half its real value.
5. Loca sacra vel religiosa, item 5. A sale is void when a person publica, veluti forum, basilicam, fru- knowingly purchases a sacred or restra quis sciens emit, quas tamen si ligious place, or a public place, such pro privatis vel profanis, deceptus a as a forum or basilica. If, however, venditore, emerit, habebit actionem deceived by the vendor, he has supex empto, quod non habere ei liceat, posed that what he was buying was ut consequatur, quod sua interest, profane or private, as he cannot have deceptum eum non esse. "Idem juris what he purchased, he may bring an est, si hominem liberum pro servo action ex empto to recover whatever emerit.
it would have been worth to him not to have been deceived. It is the same if he has purchased a free man,
supposing him to be a slave. D. xviii. 1. 4. 6; D. xviii. 1. 62. 1.
This paragraph is probably inserted in order to contrast the effects of a contract of sale with those of a stipulation. In the strict civil law, ignorance that a thing was not a subject of commerce, would not help the person who had stipulated for it. But in a contract of sale, if the seller had, and the buyer had not, known the real character of the thing he was buying, the buyer could recover against the seller anything he lost by entering into the bargain; for instance, he would not only receive back the purchase-money, but also would be entitled to interest upon it from the date of its payment.
The contract of sale gave rise to two actions bonce fidei, the actio ex vendito or venditi, belonging to the seller, and the actio ex empto or empti, mentioned in the text, belonging to the buyer.
· Tit. XXIV. DE LOCATIONE ET CONDUCTIONE.
Locatio et conductio proxima est The contract of letting on hire ap. emptioni et venditioni iisdemque proaches very nearly to that of sale, juris regulis consistit. Nam ut em- and is governed by the same rules of ptio et venditio ita contrahitur, si de law. As the contract of sale is formed pretio convenerit, sic etiam locatio as soon as a price is fixed, so a conet conductio ita contrahi intellegitur, tract of letting on hire is formed as si merces constituta sit. Et competit soon as the amount to be paid for the locatori quidem locati actio, condu hiring has been agreed on; and the ctori vero conducti.
letter has an action locati, and the
hirer an action conducti. D. xix. 2. 2, and 15. pr.
The contract of letting on hire (locatio conductio), like that of sale, was complete by the mere consent of the parties, and, like. it, produced only personal obligations, and not any real rights. The hirer was, however, not even entitled to the possessio; the letter still remained the possessor in the eye of the law, his duty not being prostare rem licere habere, but praestare re frui, uti licere.
There were three principal heads of this contract: 1, locatio conductio rerum, when one person let a thing and another bired it; 2, locatio conductio operarum, when one person let his services and another hired them; 3, locatio conductio operis faciendi, when one person contracted that a particular piece of work should be done, and another contracted to do it. If in such a contract we look at the labour, &c., expended on the work, we should naturally call the person who did the work the locator, as it was he who let out his services for its performance; but the Roman jurists generally looked at the work itself that was to be done, and spoke of the person who contracted for its performance, i.e. gave it out, as its locator, and the person who engaged to perform or execute it, i.e. took it in, as the conductor. The price of, or consideration for, the letting, was properly called merces, sometimes pretium (D. xix. 2. 28. 2), and, in the case of the letting of houses or land, pensio or reditus. In particular contracts, the conductor had special names, as the hirer of a house was called inquilinus, of a farm colonus.
The duty of the letter was to guarantee the hirer against eviction, and to reimburse him for any useful or necessary expenses he bad incurred; the duty of the hirer was to take care as a bonus paterfamilias of the thing hired (see paragr. 5), to give up the thing hired at the end of the term for which it was let, and to pay the price agreed on.
The text gives us the names of the personal actions which belonged to the letter and the hirer respectively, the former having the actio locati, the latter the actio conducti. But actions of a very different kind were sometimes connected with this contract. In the case of land let to hire, certain instruments of farming and other property of the hirer were held as a security for the payment of the rent, and a real action, termed the actio Serviana, because first introduced by the prætor Servius, was given to the letter to enforce his right to these things in case of non-payment of the rent; this action was gradually extended in its effects, and the extended action, under the name of actio quasi-Serviana, was used to enforce the rights of a creditor over anything given in pledge. (See Bk.iv. Tit. 6. 7.) The prætor, too, gave an interdict, termed the interdictum Salvianum, by which the letter got possession of things pledged for the rent of land. (See Bk. iv. Tit. 15. 3.)
1. Et quæ supra diximus, si alieno 1. What we have said above of a arbitrio pretium permissum fuerit, sale in which the price is to be fixed eadem et de locatione et conductione by the decision of a third person, may dicta esse intellegamus, si alieno ar- be applied to the contract of letting on bitrio merces permissa fuerit. Qua hire, if the amount to be paid for the de causa si fulloni polienda curan- hire is left to the decision of a third dave aut sarcinatori sarcienda ve- person. Accordingly, if any one gives stimenta quis dederit nulla statim clothes to a fuller to be scoured or mercede constituta, sed postea tan- cleaned, or to a tailor to be mended, tum daturus, quantum inter eos con- without then fixing the sum to be paid venerit, non proprie locatio et con- for their work, but with the intention ductio contrahi intellegitur, sed eo of afterwards paying what may be
nomine præscriptis verbis actio agreed on, a contract of letting on datur.
hire cannot properly be said to be niade ; but the circumstances furnish
ground for an action præscriptis verbis. Gai. iii. 143; D. xix. 2. 25. pr. Qua de causa, i.e., the price ought to be determined, and therefore,' &c.; the passage is taken rather unconnectedly out of
Actio præscriptis verbis. (See note on Tit. 13. pr.) Or an actio mandati might be brought. (Tit. 26. 13.)
2. Præterea sicut vulgo quære- 2. Moreover, just as the question batur, an permutatis rebus emptio was often asked whether a contract of et venditio contrahitur : ita quæri sale was formed by exchange, a similar solebat de locatione et conductione, question arose with respect to the consi forte rem aliquam tibi utendam tract of letting on hire, in case any one sive fruendam quis dederit et in- gave you a thing to use or take the vicem a te aliam utendam sive fru- fruits of, and in return received from endam acceperit. Et placuit, non you something else of which he was to esse locationem et conductionem, have the use or fruits. It has been sed proprium genus esse contractus. decided that this is not a contract of Veluti si, cum unum quis bovem letting to hire, but a distinct kind of haberet et vicinus ejus unum, pla- contract. For example, if two neighcuerit inter eos, ut per denos dies bours have each an ox, and agree each invicem boves commodarent, ut opus to lend the other his ox for ten days facerent, et apud alterum bos periit: to make use of, and one of the oxen neque locati vel conducti neque dies while in the care of the person to commodati competit actio, quia non whom it does not belong, there will fuit gratuitum commodatum, verum not be an actio locati or conducti, præscriptis verbis agendum est. nor will there be an actio commodati,
since the loan was not gratuitous, but the parties have to sue by an action
Gai. iii. 144 ; D. xix. 5. 17. 3. 3. Adeo autem familiaritatem 3. Contracts of sale and contracts aliquam inter se habere videntur of letting on hire are so nearly conemptio et venditio, item locatio et nected, that in some cases it is quesconductio, ut in quibusdam causis tioned whether the contract is one or quæri soleat, utrum emptio et ven- the other. For instance, when lands ditio contrahatur, an locatio et con- are delivered over to be enjoyed for ductio. Ut ecce de prædiis, quæ per- ever, that is, that as long as the rent petuo quibusdam fruenda traduntur, is paid for the land to the owner, he id est ut, quamdiu pensio sive redi- cannot take away the land from the tus pro his domino præstetur, neque hirer or his heir, or from any one to ipsi conductori neque heredi ejus, whom the hirer or his heir has sold cuive conductor heresve ejus id or given the land, or made it over as prædium vendiderit aut donaverit part of a dos, or has in any way alienaut dotis nomine dederit aliove quo ated it. As the ancients were in doubt modo alienaverit, auferre liceat. as to this contract, some regarding it Sed talis contractus quia inter as a letting on hire, and some as a veteres dubitabatur et a quibus- sale, the constitution of Zeno was dam locatio, a quibusdam venditio made, which declared that the contract existimabatur: lex Zenoniana lata of emphyteusis was of a special nature, est, quæ emphyteuseos contractui and was not to be confounded either propriam statuit naturam neque ad with letting on hire or with sale, but locationem neque ad venditionem rested upon its own peculiar agreeinclinantem, sed suis pactionibus ments; and that if any special agree