alii versus alluded to are those describing the exchange between Glaucus and Diomede (Il. vi. 235).

3. Cum autem emptio et venditio contracta sit (quod effici diximus, simulatque de pretio convenerit, cum sine scriptura res agitur), periculum rei venditæ statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit. Itaque si homo mortuus sit vel aliqua parte corporis læsus fuerit, aut ædes totæ aut aliqua ex parte incendio consumptæ fuerint, aut fundus vi fluminis totus vel aliqua ex parte ablatus sit, sive etiam inundatione aquæ aut arboribus turbine dejectis longe minor aut deterior esse cœperit: emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere. Quidquid enim sine dolo et culpa venditoris accidit, in eo venditor securus est. Sed et si post emptionem fundo aliquid per alluvionem accessit, ad emptoris commodum pertinet: nam et commodum ejus esse debet, cujus periculum est. Quodsi fugerit homo, qui veniit, aut subreptus fuerit, ita ut neque dolus neque culpa venditoris interveniat, animadvertendum erit, an custodiam ejus usque ad traditionem venditor susceperit. Sane enim, si susceperit, ad ipsius periculum is casus pertinet si non susceperit, securus erit. Idem et in ceteris animalibus ceterisque rebus intellegimus. Utique tamen vindicationem rei et condictionem exhibere debebit emptori, quia sane, qui rem nondum emptori tradidit, adhuc ipse dominus est. Idem est etiam de furti et de damni injuriæ actione.

3. As soon as the sale is contracted, that is, in the case of a sale made without writing, when the parties have agreed on the price, all risk attaching to the thing sold falls upon the purchaser, although the thing has not yet been delivered to him. Therefore, if the slave sold dies or receives an injury in any part of his body, or a whole or a portion of the house is burnt, or a whole or a portion of the land is carried by the force of a flood, or is diminished or deteriorated by an inundation, or by a tempest making havoc with the trees, the loss falls on the purchaser, and although he does not receive the thing, he is obliged to pay the price, for the seller does not suffer for anything which happens without any fraud or fault of his. On the other hand, if after the sale the land is increased by alluvion, it is the purchaser who receives the advantage, for he who bears the risk of harm ought to receive the benefit of all that is advantageous. But if a slave who has been sold runs away or is stolen, without any fraud or fault on the part of the seller, we must inquire whether the seller undertook to keep him safely until he was delivered over; if he undertook this, what happens is at his risk; if he did not undertake it, he is not responsible. The same would hold in the case of any other animal or any other thing, but the seller is in any case bound to make over to the purchaser his right to a real or personal action, for the person who has not delivered the thing is still its owner; and it is the same with regard to the action of the ft, and the action damni injuriæ.

D. xviii. 6-8; D. xviii. 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 (dominium) 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 (are 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 præstare, D. xiii. 6. 5. 2), but to preserve it more carefully 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 injuria 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 quam pure contrahi potest. Sub condicione veluti 'si Stichus intra certum diem tibi placuerit, erit tibi emptus aureis tot."

4. A sale may be made conditionally or unconditionally; conditionally, as, for example, 'If Stichus suits you within a certain time, he shall be purchased 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 Digest (D. xviii. 2 and 3), different names being appropriated to those most frequently in use; as, for instance, the in diem addictio, 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 publica, veluti forum, basilicam, frustra quis sciens emit, quas tamen si pro privatis vel profanis, deceptus a venditore, emerit, habebit actionem ex empto, quod non habere ei liceat, ut consequatur, quod sua interest, deceptum eum non esse. Idem juris est, si hominem liberum pro servo emerit.

5. A sale is void when a person knowingly purchases a sacred or religious place, or a public place, such as a forum or basilica. If, however, deceived by the vendor, he has supposed that what he was buying was profane or private, as he cannot have what he purchased, he may bring an action ex empto to recover whatever 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 bona 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 emptioni et venditioni iisdemque juris regulis consistit. Nam ut emptio et venditio ita contrahitur, si de pretio convenerit, sic etiam locatio et conductio ita contrahi intellegitur, si merces constituta sit. Et competit locatori quidem locati actio, conductori vero conducti.

The contract of letting on hire approaches very nearly to that of sale, and is governed by the same rules of law. As the contract of sale is formed as soon as a price is fixed, so a contract of letting on hire is formed as soon as the amount to be paid for the hiring has been agreed on; and the 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 præstare rem licere habere, but præstare re frui, uti licere.

There were three principal heads of this contract: 1, locatio conductio rerum, when one person let a thing and another hired /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 had 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 arbitrio pretium permissum fuerit, eadem et de locatione et conductione dicta esse intellegamus, si alieno arbitrio merces permissa fuerit. Qua de causa si fulloni polienda curandave aut sarcinatori sarcienda vestimenta quis dederit nulla statim mercede constituta, sed postea tantum daturus, quantum inter eos convenerit, non proprie locatio et conductio contrahi intellegitur, sed eo

1. What we have said above of a sale in which the price is to be fixed by the decision of a third person, may be applied to the contract of letting on hire, if the amount to be paid for the hire is left to the decision of a third person. Accordingly, if any one gives clothes to a fuller to be scoured or cleaned, or to a tailor to be mended, without then fixing the sum to be paid for their work, but with the intention 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 made; 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 Gaius.

Actio præscriptis verbis. (See note on Tit. 13. pr.) Or an actio mandati might be brought.

B B