Justinian•DIGESTA
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Dig. 18.3.0. De lege commissoria.
18.2.0. On in diem adjudication.
Dig. 18.3.0. On the commissory law.
Dig. 18.6.0. De periculo et commodo rei venditae.
18.5.0. On rescinding a sale and when it is permitted to withdraw from a purchase.
Digest 18.6.0. On the risk and benefit of the thing sold.
Dig. 18.2.0. De in diem addictione.
18.1.0. On contracting a purchase and on pacts settled between buyer and seller, and which things cannot be sold.
Dig. 18.2.0. On an award subject to a day.
Dig. 18.5.0. De rescindenda venditione et quando licet ab emptione discedere.
18.4.0. On an inheritance or an action sold.
Dig. 18.5.0. On rescinding a sale and when it is permitted to withdraw from a purchase.
18.7.0. On slaves to be exported: or if a mancipium has been sold on the condition that he be manumitted, or the contrary.
Origo emendi vendendique a permutationibus coepit. olim enim non ita erat nummus neque aliud merx, aliud pretium vocabatur, sed unusquisque secundum necessitatem temporum ac rerum utilibus inutilia permutabat, quando plerumque evenit, ut quod alteri superest alteri desit. sed quia non semper nec facile concurrebat, ut, cum tu haberes quod ego desiderarem, invicem haberem quod tu accipere velles, electa materia est, cuius publica ac perpetua aestimatio difficultatibus permutationum aequalitate quantitatis subveniret.
The origin of buying and selling began from exchanges. For in former times there was not thus coin, nor was one thing called merchandise and another price, but each person, according to the necessity of the times and of things, exchanged useless things for useful ones, since it very often happens that what is superfluous to one is lacking to another. But because it did not always nor easily coincide that, when you had what I would desire, I in turn would have what you would wish to receive, a material was chosen whose public and perpetual estimation would relieve the difficulties of exchanges by an equality of quantity.
Sed an sine nummis venditio dici hodieque possit, dubitatur, veluti si ego togam dedi, ut tunicam acciperem. sabinus et cassius esse emptionem et venditionem putant: nerva et proculus permutationem, non emptionem hoc esse. sabinus homero teste utitur, qui exercitum graecorum aere ferro hominibusque vinum emere refert, illis versibus: enven ar' oinizonto karykomowntes axaioi alloi men xalkw, alloi d' aivwni sidyrw, alloi de hrinois, alloi d' autysi boessi, alloi d' andrapodessin.
But whether a sale can even today be said to exist without money is doubted, for example if I gave a toga in order to receive a tunic. Sabinus and Cassius think there is a purchase and a sale; Nerva and Proculus that this is exchange, not purchase. Sabinus uses Homer as a witness, who reports that the army of the Greeks bought wine with bronze, iron, and men, in these verses: from there the long‑haired Achaeans were buying wine, some with bronze, others with gleaming iron, others with hides, others with cattle themselves, others with slaves.
but these verses seem to signify permutation (barter), not emption, just like those: env' aute glaukw kronidys frenas eceleto zeus, hos pros tudeidyn diomydea teuxe ameiben. Rather, however, in favor of this view one would cite what the same poet says elsewhere: priato kteatessin heoisin. But truer is the opinion of Nerva and Proculus: for as to sell is one thing and to buy another, one person is the buyer and another the seller, so one thing is the price, another the merchandise; which in a permutation cannot be discerned—who is buyer and who seller.
Sed celsus filius ait hominem liberum scientem te emere non posse nec cuiuscumque rei si scias alienationem esse: ut sacra et religiosa loca aut quorum commercium non sit, ut publica, quae non in pecunia populi, sed in publico usu habeatur, ut est campus martius.
But Celsus the son says that you cannot buy a free man if you know him to be free, nor any thing whatsoever if you know that there is no alienation: as sacred and religious places, or those for which there is no commerce, such as public things, which are held not in the pecuniary assets of the people but in public use, as is the campus martius.
Si fundus annua bima trima die ea lege venisset, ut, si in diem statutum pecunia soluta non esset, fundus inemptus foret et ut, si interim emptor fundum coluerit fructusque ex eo perceperit, inempto eo facto restituerentur et ut, quanti minoris postea alii venisset, ut id emptor venditori praestaret: ad diem pecunia non soluta placet venditori ex vendito eo nomine actionem esse. nec conturbari debemus, quod inempto fundo facto dicatur actionem ex vendito futuram esse: in emptis enim et venditis potius id quod actum, quam id quod dictum sit sequendum est, et cum lege id dictum sit, apparet hoc dumtaxat actum esse, ne venditor emptori pecunia ad diem non soluta obligatus esset, non ut omnis obligatio empti et venditi utrique solveretur.
If an estate had been sold for a term of one, two, or three years on this condition: that, if the money were not paid on the appointed day, the estate would be as not bought; and that, if in the meantime the buyer had tilled the estate and taken fruits from it, once it was made as not bought those would be restored; and that, by how much less it should thereafter be sold to another, the buyer should make that good to the seller: if the money is not paid on the day, it is held that the seller has an action ex vendito on that ground. Nor ought we to be disturbed by the fact that, although the estate is said to be as not bought, there will be an action ex vendito: for in purchases and sales one must follow rather what was transacted than what was merely spoken, and since this was said by a lex (term), it appears that only this was transacted, namely, that the seller should not be bound to the buyer if the money was not paid on the day, not that every obligation of emptio et venditio should be dissolved for both.
Haec venditio servi " si rationes domini computasset arbitrio" condicionalis est: condicionales autem venditiones tunc perficiuntur, cum impleta fuerit condicio. sed utrum haec est venditionis condicio, si ipse dominus putasset suo arbitrio, an vero si arbitrio viri boni? nam si arbitrium domini accipiamus, venditio nulla est, quemadmodum si quis ita vendiderit, si voluerit, vel stipulanti sic spondeat " si voluero, decem dabo": neque enim debet in arbitrium rei conferri, an sit obstrictus.
This sale of the slave, “if he should have settled the master’s accounts at discretion,” is conditional; and conditional sales are completed when the condition has been fulfilled. But is this the condition of the sale—that it be if the master himself should have judged by his own discretion, or rather if by the discretion of a good man? For if we take it as the master’s discretion, the sale is null, just as if someone had sold on these terms, “if he should wish,” or had thus pledged to a stipulator, “if I shall wish, I will give ten”: for it ought not to be referred to the party’s discretion whether he be bound.
It therefore pleased the ancients that this be seen as referred rather to the judgment of a good man than to that of the master. If, accordingly, he was able to receive the accounts and did not receive them, or he did receive them but pretends that he did not, the condition of the purchase is fulfilled, and the seller can be convened under the action ex empto.
Nec emptio nec venditio sine re quae veneat potest intellegi. et tamen fructus et partus futuri recte ementur, ut, cum editus esset partus, iam tunc, cum contractum esset negotium, venditio facta intellegatur: sed si id egerit venditor, ne nascatur aut fiant, ex empto agi posse.
Neither purchase nor sale can be understood without a thing that is for sale. And yet fruits and future offspring are rightly bought, so that, when the offspring has been brought forth, the sale is understood to have been effected already at the time when the transaction was contracted: but if the seller has contrived that it not be born or that they not come into being, an action ex empto can be brought.
Aliquando tamen et sine re venditio intellegitur, veluti cum quasi alea emitur. quod fit, cum captum piscium vel avium vel missilium emitur: emptio enim contrahitur etiam si nihil inciderit, quia spei emptio est: et quod missilium nomine eo casu captum est si evictum fuerit, nulla eo nomine ex empto obligatio contrahitur, quia id actum intellegitur.
Sometimes, however, a sale is understood even without an object, as when, so to speak, a gamble is bought. This happens when the catch of fish or of birds or of “things-thrown” (missilia) is bought: for a purchase is contracted even if nothing has fallen in, because it is a purchase of hope; and as to what, under the name of missilia, is caught in that case, if it should be evicted, no obligation under an action ex empto is contracted on that account, because it is understood that this was agreed.
In venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentient sive in pretio sive in quo alio, emptio imperfecta est. si igitur ego me fundum emere putarem cornelianum, tu mihi te vendere sempronianum putasti, quia in corpore dissensimus, emptio nulla est. idem est, si ego me stichum, tu pamphilum absentem vendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem.
In sales and purchases it is clear that consent must intercede; but if they dissent either about the sale itself or about the price or about anything else, the sale is imperfect. If therefore I supposed that I was buying the Cornelian estate, while you supposed that you were selling me the Sempronian, since we dissented as to the corpus (the object), there is no sale. The same holds if I supposed that I was buying Stichus, and you that you were selling Pamphilus, who is absent: for when there is dissent as to the corpus, it appears that there is no sale.
Inde quaeritur, si in ipso corpore non erratur, sed in substantia error sit, ut puta si acetum pro vino veneat, aes pro auro vel plumbum pro argento vel quid aliud argento simile, an emptio et venditio sit. Marcellus scripsit libro sexto digestorum emptionem esse et venditionem, quia in corpus consensum est, etsi in materia sit erratum. ego in vino quidem consentio, quia eadem prope ousia est, si modo vinum acuit: ceterum si vinum non acuit, sed ab initio acetum fuit, ut embamma, aliud pro alio venisse videtur.
Then the question is raised, if there is no mistake in the very thing itself, but the error is in the substance—say, if vinegar is sold instead of wine, bronze instead of gold, or lead instead of silver, or something else similar to silver—whether there is a purchase and sale. Marcellus wrote in the sixth book of the Digests that there is a purchase and a sale, because there was consensus as to the corpus, even if there was an error in the material. I, for my part, agree in the case of wine, because it is almost the same ousia, provided the wine has soured; but if the wine has not soured, but from the beginning it was vinegar, like an embamma, it seems that one thing has been sold for another.
In huiusmodi autem quaestionibus personae ementium et vendentium spectari debent, non eorum, quibus adquiritur ex eo contractu actio: nam si servus meus vel filius qui in mea potestate est me praesente suo nomine emat, non est quaerendum, quid ego existimem, sed quid ille qui contrahit.
But in questions of this kind the persons of the buyers and sellers ought to be considered, not those of the ones for whom, from that contract, an action is acquired: for if my slave or my son who is in my power, with me present, buys in his own name, it is not to be asked what I think, but what he who contracts thinks.
Quid tamen dicemus, si in materia et qualitate ambo errarent? ut puta si et ego me vendere aurum putarem et tu emere, cum aes esset? ut puta coheredes viriolam, quae aurea dicebatur, pretio exquisito uni heredi vendidissent eaque inventa esset magna ex parte aenea?
What, however, shall we say, if both were mistaken about the material and the quality? For instance, if I thought I was selling gold and you buying it, when it was bronze? For instance, suppose coheirs had sold to one heir, at a price fixed after appraisal, a little bracelet which was said to be gold, and it was found to be for the most part bronze?
Si rem meam mihi ignoranti vendideris et iussu meo alii tradideris, non putat pomponius dominium meum transire, quoniam non hoc mihi propositum fuit, sed quasi tuum dominium ad eum transire: et ideo etiam si donaturus mihi rem meam iussu meo alii tradas, idem dicendum erit.
If you sell my property to me while I am ignorant of it and, at my order, deliver it to another, Pomponius does not think that my dominion passes, since this was not my purpose, but as if your dominion passes to him; and therefore, even if, being about to make a gift to me, you deliver my property by my order to another, the same must be said.
Sabinus respondit, si quam rem nobis fieri velimus etiam, veluti statuam vel vas aliquod seu vestem, ut nihil aliud quam pecuniam daremus, emptionem videri, nec posse ullam locationem esse, ubi corpus ipsum non detur ab eo cui id fieret: aliter atque si aream darem, ubi insulam aedificares, quoniam tunc a me substantia proficiscitur.
Sabinus responded that, if we should wish to have some thing made for us—even, for example, a statue or some vessel or a garment—on the terms that we give nothing other than money, it seems to be a purchase, and that no hiring can exist where the very material substance (corpus) is not supplied by the one for whom it is being made: otherwise than if I were to give a building-site, on which you would construct a tenement (insula), since then the substance proceeds from me.
Si sciens emam ab eo cui bonis interdictum sit vel cui tempus ad deliberandum de hereditate ita datum sit, ut ei deminuendi potestas non sit, dominus non ero: dissimiliter atque si a debitore sciens creditorem fraudari emero.
If I knowingly purchase from one who has been interdicted from his goods, or from one to whom time has been granted for deliberating about an inheritance in such a way that he has no power to diminish it, I shall not be owner; differently than if I knowingly purchase from a debtor in order that the creditor be defrauded.
Quotiens servus venit, non cum peculio distrahitur: et ideo sive non sit exceptum, sive exceptum sit, ne cum peculio veneat, non cum peculio distractus videtur. unde si qua res fuerit peculiaris a servo subrepta, condici potest videlicet quasi furtiva: hoc ita, si res ad emptorem pervenit.
Whenever a slave is sold, he is not sold with the peculium: and therefore, whether it has not been excepted, or has been excepted, that he not be sold with the peculium, he is seen as not sold with the peculium. Whence, if any item of the peculium has been pilfered by the slave, a condiction can be brought, namely as for a stolen thing: this is so if the thing has come to the purchaser.
Cum in lege venditionis ita sit scriptum: " flumina stillicidia uti nunc sunt, ut ita sint", nec additur, quae flumina vel stillicidia, primum spectari oportet, quid acti sit: si non id appareat, tunc id accipitur quod venditori nocet: ambigua enim oratio est.
When in the law of the vendition it is written thus: " rivers and drip-waters as they now are, so let them be", and it is not added which streams or drip-waters, first it ought to be considered what was transacted; if that does not appear, then it is taken in the sense that harms the seller: for the wording is ambiguous.
Si in emptione fundi dictum sit accedere stichum servum neque intellegatur, quis ex pluribus accesserit, cum de alio emptor, de alio venditor senserit, nihilo minus fundi venditionem valere constat: sed labeo ait eum stichum deberi quem venditor intellexerit. nec refert, quanti sit accessio, sive plus in ea sit quam in ipsa re cui accedat an minus: plerasque enim res aliquando propter accessiones emimus, sicuti cum domus propter marmora et statuas et tabulas pictas ematur.
If, in the purchase of a farm, it is stated that the slave Stichus is to accede, and it is not understood which one out of several has acceded—since the purchaser had one in mind and the vendor another—nonetheless it is agreed that the sale of the farm is valid; but Labeo says that that Stichus is owed whom the vendor understood. Nor does it matter how much the accession is worth, whether there is more value in it than in the very thing to which it accedes or less: for we often buy many things on account of accessions, as when a house is bought on account of marbles and statues and painted panels.
Item si et emptor et venditor scit furtivum esse quod venit, a neutra parte obligatio contrahitur: si emptor solus scit, non obligabitur venditor nec tamen ex vendito quicquam consequitur, nisi ultro quod convenerit praestet: quod si venditor scit, emptor ignoravit, utrinque obligatio contrahitur, et ita pomponius quoque scribit.
Likewise, if both buyer and seller know that what is sold is stolen, an obligation is contracted on neither side: if the buyer alone knows, the seller will not be bound, nor nevertheless does he obtain anything on the action ex vendito, unless the other party of his own accord renders what was agreed; but if the seller knows and the buyer was ignorant, an obligation is contracted on both sides, and so too Pomponius writes.
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 solum arbitrio eius commissum sit, ut quem voluisset emptum haberet, non et illud, an emptum haberet.
If a purchase has been made thus: “stichus or pamphilus is bought for me,” it is in the seller’s power to deliver whichever he wishes, as in stipulations; but if one has died, the survivor must be delivered: and therefore the prior risk pertains to the seller, the subsequent to the buyer. But even if they have died together, the price will be owed: for one of them assuredly lived at the buyer’s risk. The same must be said also if it was at the buyer’s discretion which he wished to have—provided only this was committed to his discretion, that he should have as bought whichever he wished, and not also that point, whether he should have a purchase at all.
Veneni mali quidam putant non contrahi emptionem, quia nec societas aut mandatum flagitiosae rei ullas vires habet: quae sententia potest sane vera videri de his quae nullo modo adiectione alterius materiae usu nobis esse possunt: de his vero quae mixta aliis materiis adeo nocendi naturam deponunt, ut ex his antidoti et alia quaedam salubria medicamenta conficiantur, aliud dici potest.
Some think that a purchase of harmful poison is not contracted, because neither a partnership nor a mandate of a flagitious matter has any force: which opinion can indeed seem true concerning those things which in no way, by the addition of another material, can be of use to us; but concerning those which, when mixed with other materials, so lay aside the nature of harming that from them antidotes and certain other salubrious medicaments are compounded, something else can be said.
Si quis amico peregre eunti mandaverit, ut fugitivum suum quaerat et si invenerit vendat, nec ipse contra senatus consultum committit, quia non vendidit, neque amicus eius, quia praesentem vendit: emptor quoque, qui praesentem emit, recte negotium gerere intellegitur.
If someone has given a mandate to a friend going abroad, that he should seek out his fugitive and, if he finds him, sell him, neither does he himself commit a breach against the senatorial decree, because he did not sell, nor does his friend, because he sells one who is present: the buyer also, who buys one who is present, is understood to be conducting the business rightly.
Si res vendita per furtum perierit, prius animadvertendum erit, quid inter eos de custodia rei convenerat: si nihil appareat convenisse, talis custodia desideranda est a venditore, qualem bonus pater familias suis rebus adhibet: quam si praestiterit et tamen rem perdidit, securus esse debet, ut tamen scilicet vindicationem rei et condictionem exhibeat emptori. unde videbimus in personam eius, qui alienam rem vendiderit: cum is nullam vindicationem aut condictionem habere possit, ob id ipsum damnandus est, quia, si suam rem vendidisset, potuisset eas actiones ad emptorem transferre.
If the thing sold has perished through theft, it must first be observed what had been agreed between them about the custody of the thing: if nothing appears to have been agreed, such custody is to be demanded from the seller as a good paterfamilias applies to his own goods; which if he has provided and yet has lost the thing, he ought to be secure from liability, provided, of course, that he furnishes to the buyer the vindication of the thing and the condiction. Whence we shall consider the case of one who has sold another’s thing: since he can have no vindication or condiction, he is to be condemned for that very reason, because, if he had sold his own thing, he could have transferred those actions to the buyer.
In his quae pondere numero mensurave constant, veluti frumento vino oleo argento, modo ea servantur quae in ceteris, ut simul atque de pretio convenerit, videatur perfecta venditio, modo ut, etiamsi de pretio convenerit, non tamen aliter videatur perfecta venditio, quam si admensa adpensa adnumeratave sint. nam si omne vinum vel oleum vel frumentum vel argentum quantumcumque esset uno pretio venierit, idem iuris est quod in ceteris rebus. quod si vinum ita venierit, ut in singulas amphoras, item oleum, ut in singulos metretas, item frumentum, ut in singulos modios, item argentum, ut in singulas libras certum pretium diceretur, quaeritur, quando videatur emptio perfici.
In those things which consist by weight, number, or measure—such as grain, wine, oil, silver—sometimes the same rules are observed as in other cases, so that as soon as there has been agreement about the price, the sale is regarded as perfected; sometimes, however, even if there has been agreement about the price, the sale is not regarded as perfected otherwise than if they have been measured out, weighed out, or counted out. For if all the wine or oil or grain or silver, however much there was, has been sold for a single price, the same law applies as in other things. But if the wine has been sold in such a way that a fixed price is stated for each amphora, likewise the oil for each metretes, likewise the grain for each modius, likewise the silver for each libra, the question arises when the purchase is seen to be perfected.
Likewise, of course, the question is asked also about those things which consist by number, if a price has been set per the number of units. Sabinus and Cassius consider the purchase to be perfected when they have been counted, measured out, or weighed out, because the sale seems to be made as if under this condition: that for each metreta or for each modius which you will have measured, or for each pound which you will have weighed out, or for each unit which you will have counted.
Sed et si ex doleario pars vini venierit, veluti metretae centum, verissimum est ( quod et constare videtur) antequam admetiatur, omne periculum ad venditorem pertinere: nec interest, unum pretium omnium centum metretarum in semel dictum sit an in singulos eos.
But also, if from the vat a portion of the wine has been sold, for example a hundred metretes, it is most true (as also seems to be settled) that, before it is measured out, all risk pertains to the seller: nor does it matter whether one price for all the hundred metretes was stated at once, or for each of them individually.
Si quis fundum iure hereditario sibi delatum ita vendidisset: " erit tibi emptus tanti, quanti a testatore emptus est", mox inveniatur non emptus, sed donatus testatori, videtur quasi sine pretio facta venditio, ideoque similis erit sub condicione factae venditioni, quae nulla est, si condicio defecerit.
If someone had sold a farm that had devolved to him by right of inheritance in this way: " it will be purchased by you for as much as it was purchased by the testator", and soon it is found that it was not purchased but donated to the testator, the sale is seen as if made without a price, and therefore it will be similar to a sale made under a condition, which is null if the condition has failed.
Si quis donationis causa minoris vendat, venditio valet: totiens enim dicimus in totum venditionem non valere, quotiens universa venditio donationis causa facta est: quotiens vero viliore pretio res donationis causa distrahitur, dubium non est venditionem valere. hoc inter ceteros: inter virum vero et uxorem donationis causa venditio facta pretio viliore nullius momenti est.
If someone, for the cause of donation, sells for less, the sale is valid: for we say that a sale is not valid in the whole only as often as the entire sale has been made for the cause of donation; but whenever a thing is alienated at a cheaper price for the cause of donation, there is no doubt that the sale is valid. This among others: but between husband and wife, a sale made for the cause of donation at a cheaper price is of no moment.
Verisimile est eum, qui fructum olivae pendentis vendidisset et stipulatus est decem pondo olei quod natum esset, pretium constituisse ex eo quod natum esset usque ad decem pondo olei: idcirco solis quinque collectis non amplius emptor petere potest quam quinque pondo olei, quae collecta essent, a plerisque responsum est.
It is plausible that he who sold the fruit of the olive while it was hanging, and stipulated for ten pounds of oil that should be produced, fixed the price on the basis of what would be produced, up to ten pounds of oil: therefore, with only five having been collected, the buyer cannot demand more than five pounds of oil, namely those that had been collected, as most have answered.
Qui fundum vendebat, in lege ita dixerat, ut emptor in diebus triginta proximis fundum metiretur et de modo renuntiaret, et si ante eam diem non renuntiasset, ut venditoris fides soluta esset: emptor intra diem mensurae quo minorem modum esse credidit renuntiavit et pecuniam pro eo accepit: postea eum fundum vendidit et cum ipse emptori suo admetiretur, multo minorem modum agri quam putaverat invenit: quaerebat, an id quod minor is esset consequi a suo venditore posset. respondit interesse, quemadmodum lex diceretur: nam si ita dictum esset, ut emptor diebus triginta proximis fundum metiatur et domino renuntiet, quanto modus agri minor sit, quo post diem trigensimum renuntiasset, nihil ei profuturum: sed si ita pactum esset, ut emptor in diebus proximis fundum metiatur et de modo agri renuntiet, etsi in diebus triginta renuntiasset minorem modum agri esse, quamvis multis post annis posse eum quo minor is modus agri fuisset repetere.
He who was selling a farm had thus said in the clause, that the buyer within the next thirty days should measure the farm and give notice about the extent, and that if before that day he had not given notice, the seller’s warranty would be discharged: the buyer, within the day of measurement, gave notice that he believed the acreage to be less and received money on that account; afterwards he sold that farm, and when he himself was measuring it out for his own buyer, he found the acreage much smaller than he had supposed. He inquired whether he could obtain from his own vendor the amount by which it was smaller. He answered that it mattered how the clause was worded: for if it had been stated thus, that the buyer within the next thirty days should measure the farm and report to the owner how much the acreage was less, a notice which he had given after the thirtieth day would be of no benefit to him; but if it had been agreed thus, that the buyer in the next days should measure the farm and give notice about the extent of the land, then even if within thirty days he had given notice that the acreage was less, he could, although many years later, recover that by which the acreage had been smaller.
Fundi venditor frumenta manu sata receperat: in eo fundo ex stipula seges erat enata: quaesitum est, an pacto contineretur. respondit maxime referre, quid est actum: ceterum secundum verba non esse actum, quod ex stipula nasceretur, non magis quam si quid ex sacco saccarii cecidisset aut ex eo quod avibus ex aere cecidisset natum esset.
The seller of an estate had reserved to himself the grains sown by hand; on that estate a crop had sprung up from stubble. It was asked whether this was contained in the pact. He responded that it very much matters what was done—what was agreed; but that, according to the words, it was not agreed that what should arise from stubble be included, any more than if something had fallen from a porter’s sack or if anything had grown from what birds had dropped from the air.
Cum ab eo, qui fundum alii obligatum habebat, quidam sic emptum rogasset, ut esset is sibi emptus, si eum liberasset, dummodo ante kalendas iulias liberaret, quaesitum est, an utiliter agere possit ex empto in hoc, ut venditor eum liberaret. respondit: videamus, quid inter ementem et vendentem actum sit. nam si id actum est, ut omni modo intra kalendas iulias venditor fundum liberaret, ex empto erit actio, ut liberet, nec sub condicione emptio facta intellegetur, veluti si hoc modo emptor interrogaverit: " erit mihi fundus emptus ita, ut eum intra kalendas iulias liberes", vel " ita ut eum intra kalendas a titio redimas". si vero sub condicione facta emptio est, non poterit agi, ut condicio impleatur.
When from someone who had an estate obligated to another a certain person had asked to buy on these terms, namely that it be bought for himself if he freed it, provided that he freed it before the Kalends of July, the question was asked whether he could usefully bring an action ex empto to this effect, that the seller free it. He answered: let us see what was transacted between the buyer and the seller. For if it was agreed that in any event the seller would free the estate by the Kalends of July, there will be an action ex empto to have him free it, nor will the purchase be understood to have been made under a condition, for instance if the buyer has asked in this manner: "the estate will be bought for me on this basis, that you free it by the Kalends of July", or "on this basis, that you redeem it from Titius by the Kalends". But if the purchase was made under a condition, it will not be possible to sue so that the condition be fulfilled.
Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant, veluti si dicat servum speciosum, domum bene aedificatam: at si dixerit hominem litteratum vel artificem, praestare debet: nam hoc ipso pluris vendit.
Those things which are said in venditions for the sake of commendation, if they are openly apparent, do not obligate the seller, as if he should say a slave is handsome, a house well built: but if he should say the man is lettered or an artificer, he must warrant it: for by this very fact he sells for a higher price.
Quaedam etiam pollicitationes venditorem non obligant, si ita in promptu res sit, ut eam emptor non ignoraverit, veluti si quis hominem luminibus effossis emat et de sanitate stipuletur: nam de cetera parte corporis potius stipulatus videtur, quam de eo, in quo se ipse decipiebat.
Certain promises do not bind the seller even, if the matter is so in plain view that the buyer was not unaware of it; for example, if someone buys a person with the eyes gouged out and stipulates for soundness: for he is considered to have stipulated rather with respect to the rest of the body than with respect to that in which he was deceiving himself.
Labeo libro posteriorum scribit, si vestimenta interpola quis pro novis emerit, trebatio placere ita emptori praestandum quod interest, si ignorans interpola emerit. quam sententiam et pomponius probat, in qua et iulianus est, qui ait, si quidem ignorabat venditor, ipsius rei nomine teneri, si sciebat, etiam damni quod ex eo contingit: quemadmodum si vas aurichalcum pro auro vendidisset ignorans, tenetur, ut aurum quod vendidit praestet.
Labeo, in the book of the Later Writings, writes that if someone has bought refurbished garments (interpola) as new, it is Trebatius’s view that the buyer should in that case be made whole for the amount of the interest (damages), if he bought ignorant that they were refurbished. This opinion Pomponius also approves, and Julian is of the same mind, who says that, if indeed the seller was ignorant, he is held on account of the thing itself; if he knew, then also for the loss that results therefrom: just as if he had sold, being ignorant, a vessel of orichalcum (brass) as gold, he is liable to provide the gold which he sold.
Non licet ex officio, quod administrat quis, emere quid vel per se vel per aliam personam: alioquin non tantum rem amittit, sed et in quadruplum convenitur secundum constitutionem severi et antonini: et hoc ad procuratorem quoque caesaris pertinet. sed hoc ita se habet, nisi specialiter quibusdam hoc concessum est.
It is not permitted, by reason of the office which someone administers, to purchase anything either by himself or through another person; otherwise he not only loses the thing, but is also sued for quadruple according to the constitution of Severus and Antoninus; and this pertains also to the procurator of Caesar. But this stands thus, unless this has been specially granted to certain persons.
Labeo scribit, si mihi bibliothecam ita vendideris, si decuriones campani locum mihi vendidissent, in quo eam ponerem, et per me stet, quo minus id a campanis impetrem, non esse dubitandum, quin praescriptis verbis agi possit. ego etiam ex vendito agi posse puto quasi impleta condicione, cum per emptorem stet, quo minus impleatur.
Labeo writes that, if you have sold me a library on this basis—namely, if the decurions of Capua should have sold me a place in which to set it—and it is owing to me that I do not obtain that from the Capuans, there is no doubt that an action on the terms set forth (praescriptis verbis) can be brought. I also think that an action on the sale (ex vendito) can be brought as though the condition were fulfilled, when it is owing to the buyer that it is not fulfilled.
Litora, quae fundo vendito coniuncta sunt, in modum non computantur, quia nullius sunt, sed iure gentium omnibus vacant: nec viae publicae aut loca religiosa vel sacra. itaque ut proficiant venditori, caveri solet, ut viae, item litora et loca publica in modum cedant.
Shores, which are conjoined to a sold estate, are not computed into the measure, because they are no one’s, but by the law of nations lie vacant to all; nor are public roads or places religious or sacred. Therefore, in order that they may profit the seller, it is customary to provide that the roads, likewise the shores and public places, cede to the measure.
Senatus censuit, ne quis domum villamve dirueret, quo plus sibi adquireretur neve quis negotiandi causa eorum quid emeret venderetve: poena in eum, qui adversus senatus consultum fecisset, constituta est, ut duplum eius quanti emisset in aerarium inferre cogeretur, in eum vero, qui vendidisset, ut irrita fieret venditio. plane si mihi pretium solveris, cum tu duplum aerario debeas, repetes a me: quod a mea parte irrita facta est venditio. nec solum huic senatus consulto locus erit, si quis suam villam vel domum, sed et si alienam vendiderit.
The Senate decreed that no one should demolish a house or a villa so that he might acquire more for himself, nor, for the sake of trading, should anyone buy or sell any of them: a penalty was established for the one who had acted against the senate’s decree, that he be compelled to pay into the treasury double the amount for which he had purchased, but for the one who had sold, that the sale be made null. Plainly, if you have paid the price to me, since you owe double to the treasury, you will recover it from me: because on my side the sale has been made null. And this senate’s decree will have application not only if someone has sold his own villa or house, but also if he has sold another’s.
Ut res emptoris fiat, nihil interest, utrum solutum sit pretium an eo nomine fideiussor datus sit. quod autem de fideiussore diximus, plenius acceptum est, qualibet ratione si venditori de pretio satisfactum est, veluti expromissore aut pignore dato, proinde sit, ac si pretium solutum esset.
So that the thing may become the buyer’s, it makes no difference whether the price has been paid, or a guarantor (fideiussor) has been given on that account. But what we have said about the guarantor is more broadly understood thus: if in any manner the seller has been satisfied concerning the price—such as by an expromissor or by a pledge given—it is the same as if the price had been paid.
Domum emi, cum eam et ego et venditor combustam ignoraremus. nerva sabinus cassius nihil venisse, quamvis area maneat, pecuniamque solutam condici posse aiunt. sed si pars domus maneret, neratius ait hac quaestione multum interesse, quanta pars domus incendio consumpta permaneat, ut, si quidem amplior domus pars exusta est, non compellatur emptor perficere emptionem, sed etiam quod forte solutum ab eo est repetet: sin vero vel dimidia pars vel minor quam dimidia exusta fuerit, tunc coartandus est emptor venditionem adimplere aestimatione viri boni arbitratu habita, ut, quod ex pretio propter incendium decrescere fuerit inventum, ab huius praestatione liberetur.
I bought a house, when both I and the seller were unaware that it had been burned. Nerva, Sabinus, and Cassius say that nothing has been sold, although the site remains, and that the money paid can be reclaimed by condictio. But if a part of the house remained, Neratius says that in this question it matters much how great a part of the house has remained after being consumed by the fire, such that, if indeed the greater part of the house has been burned, the buyer is not compelled to perfect the purchase, but will even recover what perchance has been paid by him; but if either half or less than half has been burned, then the buyer is to be constrained to fulfill the sale, an estimation having been held by the arbitrament of a good man, so that he may be released from the performance of that portion of the price which shall have been found to diminish on account of the fire.
Sin autem venditor quidem sciebat domum esse exustam, emptor autem ignorabat, nullam venditionem stare, si tota domus ante venditionem exusta sit: si vero quantacumque pars aedificii remaneat, et stare venditionem et venditorem emptori quod interest restituere.
But if the vendor indeed knew the house had been burned down, while the purchaser was ignorant, no sale holds good if the entire house was burned before the sale; but if whatever part of the building remains, both the sale stands and the vendor must restore to the purchaser the amount of his interest.
Simili quoque modo ex diverso tractari oportet, ubi emptor quidem sciebat, venditor autem ignorabat: et hic enim oportet et venditorem stare et omne pretium ab emptore venditori, si non depensum est, solvi vel si solutum sit, non repeti.
In a similar way, the converse ought to be dealt with, where the buyer indeed knew, but the seller was ignorant: for here too it is proper both that the seller stand [by the sale], and that the whole price from the buyer to the seller, if it has not been paid out, be paid, or, if it has been paid, not be reclaimed.
Quod si uterque sciebat et emptor et venditor domum esse exustam totam vel ex parte, nihil actum fuisse dolo inter utramque partem compensando et iudicio, quod ex bona fide descendit, dolo ex utraque parte veniente stare non concedente.
But if both the buyer and the seller knew that the house had been burned, in whole or in part, nothing is considered to have been effected by deceit, the deceit being compensated as between both parties; and the action, which descends from good faith, does not allow it to stand when deceit comes from either side.
Arboribus quoque vento deiectis vel absumptis igne dictum est emptionem fundi non videri esse contractam, si contemplatione illarum arborum, veluti oliveti, fundus comparabatur, sive sciente sive ignorante venditore: sive autem emptor sciebat vel ignorabat vel uterque eorum, haec optinent, quae in superioribus casibus pro aedibus dicta sunt.
Also, with trees cast down by the wind or consumed by fire, it has been said that the purchase of the estate is not deemed to have been contracted, if the estate was being acquired in contemplation of those trees, for example an olive-grove, whether the vendor knew or was ignorant; and whether the purchaser knew or was ignorant, or both of them, the same rules obtain as were stated in the preceding cases with respect to buildings.
Cum servo dominus rem vendere certae personae iusserit, si alii vendidisset, quam cui iussus erat, venditio non valet: idem iuris in libera persona est: cum perfici venditio non potuit in eius persona, cui dominus venire eam noluit.
When the master has ordered a slave to sell a thing to a certain person, if he has sold it to another than the one to whom he was ordered, the sale is not valid: the same in law is the case for a free person: since the sale could not be perfected in the person to whom the master did not wish it to be sold.
Convenit mihi tecum, ut certum numerum tegularum mihi dares certo pretio quod ut faceres: utrum emptio sit an locatio? respondit, si ex meo fundo tegulas tibi factas ut darem convenit, emptionem puto esse, non conductionem: totiens enim conductio alicuius rei est, quotiens materia, in qua aliquid praestatur, in eodem statu eiusdem manet: quotiens vero et immutatur et alienatur, emptio magis quam locatio intellegi debet.
It was agreed between me and you that you should give me a fixed number of tiles at a fixed price, in order that you do this: is it a sale or a hire? He answered, if it was agreed that I should give you tiles made for you from my own estate, I think it is a purchase, not a hiring: for there is a hiring of some thing as often as the material in which something is furnished remains in the same state and with the same owner; but whenever it is both changed and alienated, it ought to be understood as a purchase rather than a hire.
In vendendo fundo quaedam etiam si non dicantur, praestanda sunt, veluti ne fundus evincatur aut usus fructus eius, quaedam ita demum, si dicta sint, veluti viam iter actum aquae ductum praestatu iri: idem et in servitutibus urbanorum praediorum.
In selling a fundus (estate), certain things, even if not stated, must be warranted—namely, that neither the estate nor its usufruct be evicted; certain things, however, only if they have been stated—namely, that a road (via), a path (iter), a cattle-drive (actus), or a water-conduit (aquae ductus) will be warranted: the same holds for the servitudes of urban properties.
Si cum servitus venditis praediis deberetur nec commemoraverit venditor, sed sciens esse reticuerit et ob id per ignorantiam rei emptor non utendo per statutum tempus eam servitutem amiserit, quidam recte putant venditorem teneri ex empto ob dolum.
If, when a servitude was owed along with the estates sold, the vendor did not mention it, but, knowing it to exist, kept silent, and on that account the buyer, through ignorance of the matter, by not using it for the prescribed time lost that servitude, some rightly think that the vendor is liable under the action on purchase (ex empto) on account of fraud.
Si, cum fundum venderes, in lege dixisses, quod mercedis nomine a conductore exegisses, id emptori accessurum esse, existimo te in exigendo non solum bonam fidem, sed etiam diligentiam praestare debere, id est non solum ut a te dolus malus absit, sed etiam ut culpa.
If, when you were selling the estate, you had said in the stipulation that what you had exacted from the lessee in the name of rent would accrue to the buyer, I consider that in collecting you ought to render not only good faith but also diligence—that is, that not only fraud be absent on your part, but also fault (negligence).
Nec videtur abesse, si per eum factum est aut fiet, quo minus fundum emptor possideat. erit ergo ex empto actio, non ut venditor vacuam possessionem tradat, cum multis modis accidere poterit, ne tradere possit, sed ut, si quid dolo malo fecit aut facit, dolus malus eius aestimaretur.
Nor does it seem to be lacking, if through him it has been done or will be done whereby the buyer is hindered from possessing the estate. There will therefore be an action ex empto, not so that the seller deliver vacant possession—since in many ways it could happen that he cannot deliver—but so that, if he has done or is doing anything by malicious fraud, his malicious fraud be assessed.
Rutilia polla emit lacum sabatenem angularium et circa eum lacum pedes decem: quaero, numquid et decem pedes, qui tunc accesserunt, sub aqua sint, quia lacus crevit, an proximi pedes decem ab aqua rutiliae pollae iuris sint. proculus respondit: ego existimo eatenus lacum, quem emit rutilia polla, venisse quatenus tunc fuit, et circa eum decem pedes qui tunc fuerunt, nec ob eam rem, quod lacus postea crevit, latius eum possidere debet quam emit.
Rutilia Polla bought an angular Sabatine pond and ten feet around that pond: I ask whether also the ten feet which then adjoined are now under water because the pond has grown, or whether the nearest ten feet from the water are of Rutilia Polla’s right. Proculus replied: I consider that the pond which Rutilia Polla bought was conveyed to her in so far as it then was, and the ten feet around it which then existed, and for that reason, because the pond later grew, she ought not to possess it more broadly than she bought.
Imperatores antoninus et verus augusti sextio vero in haec verba rescripserunt: " quibus mensuris aut pretiis negotiatores vina compararent, in contrahentium potestate esse: neque enim quisquam cogitur vendere, si aut pretium aut mensura displiceat, praesertim si nihil contra consuetudinem regionis fiat. "
The Emperors Antoninus and Verus, the Augusti, wrote back to Sextius Verus in these words: " by what measures or prices merchants should purchase wines is in the power of the contracting parties: for no one is compelled to sell, if either the price or the measure displeases, especially if nothing is done contrary to the custom of the region. "
Pacta conventa, quae postea facta detrahunt aliquid emptioni, contineri contractui videntur: quae vero adiciunt, credimus non inesse. quod locum habet in his, quae adminicula sunt emptionis, veluti ne cautio duplae praestetur aut ut cum fideiussore cautio duplae praestetur. sed quo casu agente emptore non valet pactum, idem vires habebit iure exceptionis agente venditore.
Pacts agreed, which, being made afterwards, detract something from the purchase, seem to be contained in the contract; but those which add, we believe are not included. This has place in matters which are adminicles (supports) of the purchase, as, for example, that the caution (security) of the duplum not be furnished, or that the caution of the duplum be furnished together with a surety (fideiussor). But in a case where, with the buyer suing, the pact is not valid, the same will have force by way of an exception, with the seller suing.
whether the same can be said, the price having later been increased or diminished, has not unreasonably been asked, since the substance of a purchase consists in the price. paulus notes: if, with all things remaining intact, it is again agreed about augmenting or diminishing the price, a withdrawal from the prior contract and that a new purchase has intervened seems to have occurred.
Clavibus traditis ita mercium in horreis conditarum possessio tradita videtur, si claves apud horrea traditae sint: quo facto confestim emptor dominium et possessionem adipiscitur, etsi non aperuerit horrea: quod si venditoris merces non fuerunt, usucapio confestim inchoabitur.
With the keys delivered, the possession of the merchandise stored in the warehouses is thus deemed to have been delivered, if the keys have been delivered at the warehouses: upon this being done, the buyer forthwith acquires dominion and possession, even if he has not opened the warehouses: but if the merchandise was not the seller’s, usucapion will forthwith be initiated.
In lege fundi vendundi lapidicinae in eo fundo ubique essent exceptae erant, et post multum temporis in eo fundo repertae erant lapidicinae. eas quoque venditoris esse tubero respondit: labeo referre quid actum sit: si non appareat, non videri eas lapidicinas esse exceptas: neminem enim nec vendere nec excipere quod non sit, et lapidicinas nullas esse, nisi quae apparent et caedantur: aliter interpretantibus totum fundum lapidicinarum fore, si forte toto eo sub terra esset lapis. hoc probo.
In the law of selling the estate, the stone‑quarries on that estate, wherever they might be, had been excepted, and after much time stone‑quarries were found on that estate. tubero answered that these too were the seller’s; labeo says it depends what was transacted: if it does not appear, they are not seen to have been excepted; for no one either sells or excepts what does not exist, and there are no stone‑quarries except those which are apparent and are being quarried; if one interprets otherwise, the whole estate would be of stone‑quarries, if perchance stone were under the whole of it underground. this I approve.
Fistulas emptori accessuras in lege dictum erat: quaerebatur, an castellum, ex quo fistulis aqua duceretur, accederet. respondi apparere id actum esse, ut id quoque accederet, licet scriptura non continetur.
It had been said in the pact that the pipes would accede to the buyer: the question was raised whether the castellum, from which water was conducted by the pipes, would accede. I responded that it appears this was the intent of the transaction, that that too would accede, although it is not contained in the writing.
Fundum ab eo emisti, cuius filii postea tutelam administras, nec vacuam accepisti possessionem. dixi tradere te tibi possessionem hoc modo posse, ut pupillus et familia eius decedat de fundo, tunc demum tu ingrediaris possessionem.
You bought an estate from him, of whose son you afterwards administer the guardianship, and you did not receive vacant possession. I said that you can deliver possession to yourself in this way: that the ward (pupillus) and his family depart from the estate, then at last you may enter into possession.
Qui fundum ea lege emerat, ut soluta pecunia traderetur ei possessio, duobus heredibus relictis decessit: si unus omnem pecuniam solverit, partem familiae herciscundae iudicio servabit: nec, si partem solvat, ex empto cum venditore aget, quoniam ita contractum aes alienum dividi non potuit.
He who had purchased a farm on this condition, that possession be delivered to him when the money was paid, died leaving two heirs: if one pays all the money, he will secure his share by the judgment for dividing the family estate (familiae herciscundae): nor, if he pays a part, will he sue the seller ex empto, since a debt contracted in that way could not be divided.
Fundi partem dimidiam ea lege vendidisti, ut emptor alteram partem, quam retinebas, annis decem certa pecunia in annos singulos conductam habeat. labeo et trebatius negant posse ex vendito agi, ut id quod convenerit fiat. ego contra puto, si modo ideo vilius fundum vendidisti, ut haec tibi conductio praestaretur: nam hoc ipsum pretium fundi videretur, quod eo pacto venditus fuerat: eoque iure utimur.
You sold half of a farm on this condition, that the buyer should have the other half, which you were retaining, leased for ten years for a fixed sum, year by year. labeo and trebatius say that one cannot sue on sale, to have that which was agreed carried out. I, on the contrary, think so, provided that you sold the farm at a lower price for this very reason, that this lease be furnished to you: for this would itself seem to be the price of the farm, because it was sold on that pact; and we proceed by this rule.
Silva caedua in quinquennium venierat: quaerebatur, cum glans decidisset, utrius esset. scio servium respondisse, primum sequendum esse quod appareret actum esse: quod si in obscuro esset, quaecumque glans ex his arboribus quae caesae non essent cecidisset, venditoris esse, eam autem, quae in arboribus fuisset eo tempore cum haec caederentur, emptoris.
Coppice-wood had been sold for a five-year period: it was asked, when an acorn had fallen, whose it was. I know that Servius replied that first one should follow what appeared to have been agreed (actum); but if that were in obscurity, any acorn that had fallen from those trees which had not been felled would be the seller’s, while that which had been on the trees at the time when these were being cut would be the buyer’s.
Titius cum mutuos acciperet tot aureos sub usuris, dedit pignori sive hypothecae praedia et fideiussorem lucium, cui promisit intra triennium proximum se eum liberaturum: quod si id non fecerit die supra scripta et solverit debitum fideiussor creditori, iussit praedia empta esse, quae creditoribus obligaverat. quaero, cum non sit liberatus lucius fideiussor a titio, an, si solverit creditori, empta haberet supra scripta praedia. respondit, si non ut in causam obligationis, sed ut empta habeat, sub condicione emptio facta est et contractam esse obligationem.
When Titius was receiving a mutuum loan of so many gold pieces at interest, he gave as pledge or hypothec estates and a surety, Lucius, to whom he promised that within the next three years he would release him; and if he should not do this by the aforesaid day, and the surety should pay the debt to the creditor, he ordered that the estates which he had obligated to the creditors be considered purchased. I ask, since Lucius the surety has not been released by Titius, whether, if he pays the creditor, he would have the aforesaid estates as bought. He answered: if the wording is not as going to the cause of the obligation, but so that he may have them as bought, a purchase has been made under a condition and an obligation has been contracted.
Lucius titius promisit de fundo suo centum milia modiorum frumenti annua praestare praediis gaii seii: postea lucius titius vendidit fundum additis verbis his: " quo iure quaque condicione ea praedia lucii titii hodie sunt, ita veneunt itaque habebuntur": quaero, an emptor gaio seio ad praestationem frumenti sit obnoxius. respondit emptorem gaio seio secundum ea quae proponerentur obligatum non esse.
Lucius titius promised from his farm to furnish annually one hundred thousand modii of grain to the estates of gaius seius: afterward lucius titius sold the farm with these words added: "by whatever right and under whatever condition those estates of lucius titius are today, so they are sold and so they shall be held": I ask whether the buyer is liable to gaius seius for the performance of the grain. He replied that, on the facts proposed, the buyer was not obligated to gaius seius.
Quotiens fundus in diem addicitur, utrum pura emptio est, sed sub condicione resolvitur, an vero condicionalis sit magis emptio, quaestionis est. et mihi videtur verius interesse, quid actum sit: nam si quidem hoc actum est, ut meliore allata condicione discedatur, erit pura emptio, quae sub condicione resolvitur: sin autem hoc actum est, ut perficiatur emptio, nisi melior condicio offeratur, erit emptio condicionalis.
Whenever a farm is knocked down in diem, the question is whether it is a pure purchase, yet resolved under a condition, or rather a more truly conditional purchase. And it seems more correct to me that it depends on what was transacted: for if indeed it was agreed that one should withdraw upon a better condition being brought forward, there will be a pure purchase, which is resolved under a condition; but if it was agreed that the purchase is to be perfected unless a better condition is offered, there will be a conditional purchase.
Idem iulianus libro quinto decimo quaerit, si res in diem addicta interciderit vel ancilla decesserit, an partus vel fructus eius nomine adiectio admitti possit. et negat admittendam adiectionem, quia alterius rei quam eius quae distracta est non solet adiectio admitti.
The same Julian, in the fifteenth book, asks whether, if a thing sold under an in diem condition has perished, or a female slave has died, an addition under its name of offspring or of fruits can be admitted. And he denies that the addition is to be admitted, because an addition is not wont to be admitted of another thing than that which was sold.
Idem iulianus eodem libro scribit, si ex duobus servis viginti venditis et in diem addictis alter decesserit, deinde unius nomine qui superest emptor extiterit, qui supra viginti promitteret, an discedatur a priore contractu? et ait dissimilem esse hanc speciem partus specie et ideo hic discedi a priore emptione et ad secundam perveniri.
The same Julian, in the same book, writes that if, out of two slaves sold for twenty and granted in diem, one has died, then thereafter, in respect of the one who survives, a purchaser has arisen who would promise above twenty—should one depart from the prior contract? And he says that this case is dissimilar to the case of offspring, and therefore here one departs from the prior purchase and resorts to the second.
Sed et Marcellus libro quinto digestorum scribit pure vendito et in diem addicto fundo si melior condicio allata sit, rem pignori esse desinere, si emptor eum fundum pignori dedisset: ex quo colligitur, quod emptor medio tempore dominus est: alioquin nec pignus teneret.
But Marcellus also, in the fifth book of the Digesta, writes that, in the case of an estate sold purely and subjected to an in diem addictio, if a better condition has been brought forward, the thing ceases to be in pledge, if the buyer had given that estate in pledge: whence it is gathered that the buyer is owner in the meantime: otherwise not even the pledge would hold.
Idem iulianus libro octagensimo octavo digestorum scripsit eum, qui emit fundum in diem, interdicto quod vi aut clam uti posse: nam hoc interdictum ei competit, cuius interest opus non esse factum. fundo autem, inquit, in diem addicto et commodum et incommodum omne ad emptorem pertinet, antequam venditio transferatur, et ideo, si quid tunc vi aut clam factum est, quamvis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus, inquit, quos percepit venditi iudicio praestaturum.
The same Julian, in the eighty-eighth book of the Digesta, wrote that he who buys an estate in diem can make use of the interdict quod vi aut clam; for this interdict belongs to the one whose interest it is that the work not have been done. Moreover, he says, when a fundus has been addictus in diem, the whole advantage and disadvantage pertain to the buyer before transfer of the sale, and therefore, if anything was then done by force or by stealth, although a better condition has been brought, he himself will have the utile interdict; but, he says, that action—like the fruits which he has taken—he will have to make good by the action on sale (actio venditi).
Cum igitur tunc recedatur ab emptione ( ubi pure contrahitur) vel tunc non impleatur ( ubi sub condicione fit) cum melior condicio sit allata: si falsus emptor subiectus sit, eleganter scribit sabinus priori rem esse emptam, quia non videtur melior condicio allata esse non existente vero emptore. sed et si existat alius emptor, meliorem tamen condicionem non adferat, aeque dicendum erit perinde haberi, ac si non existeret.
Therefore, when withdrawal is then made from the purchase ( where it is contracted purely) or then it is not fulfilled ( where it is made under a condition) when a better condition has been brought: if a false buyer is put forward, Sabinus writes elegantly that the thing is bought by the former, because a better condition does not seem to have been brought, the true buyer not existing. But also if another buyer exists, yet does not bring a better condition, it will likewise have to be said to be regarded just the same as if he did not exist.
Melior autem condicio adferri videtur, si pretio sit additum. sed et si nihil pretio addatur, solutio tamen offeratur facilior pretii vel maturior, melior condicio adferri videtur. praeterea si locus oportunior solvendo pretio dicatur, aeque melior condicio allata videtur: et ita pomponius libro nono ex sabino scribit.
a better condition seems to be brought if an addition has been made to the price. but even if nothing is added to the price, nevertheless if a payment of the price is offered that is easier or more timely, a better condition seems to be brought. furthermore, if a place more opportune for paying the price is stipulated, an equally better condition seems to have been brought: and so pomponius writes in the ninth book from sabinus.
He says the same, too: if a more suitable person accedes to the purchase, it is equally seen that a better condition has been brought. Accordingly, if a buyer accedes at the same price, but buys on lighter conditions, or who exacts no surety, a better condition will be seen to have been brought. Therefore the same is to be approved also if he is prepared to buy at a cheaper price, yet remits those things which were onerous to the seller in the prior sale.
Item quod dictum est fructus interea captos emptorem priorem sequi, totiens verum est, quotiens nullus emptor existit, qui meliorem condicionem adferat, vel falsus exsistit: sin vero exstitit emptor posterior fructus refundere priorem debere constat, sed venditori. et ita iulianus libro quadragensimo octavo digestorum scripsit.
Likewise, what has been said—that the fruits meanwhile taken follow the prior purchaser—is true as often as no purchaser appears who brings a better condition, or the (later) one proves false: but if indeed a subsequent purchaser has arisen, it is settled that the prior must refund the fruits, but to the seller. And so Julian wrote in book 48 of the Digesta.
Si quis extiterit, qui meliorem condicionem adferat, deinde prior emptor adversus eum licitatus sit et penes eum emptum remanserit, dubitari poterit, utrum fructus ipse habeat, quasi nulla meliore condicione allata, an vero venditoris sint, licet eadem sit persona, quae meliorem condicionem attulit. quod ratio facere videtur: intererit tamen quid acti sit: et ita pomponius scribit.
If someone should arise who brings a better condition, then the prior buyer bids against him and the purchase remains in his hands, there could be doubt whether he himself has the fruits, as if no better condition had been brought, or rather whether they belong to the seller, although it be the same person who brought the better condition. Reason seems to bring about the latter; nevertheless, it will matter what was transacted; and so Pomponius writes.
Sabinus scribit licere venditori meliorem condicionem oblatam abicere sequique primam quasi meliorem, et ita utimur. quid tamen, si hoc erat nominatim actum, ut liceret resilire emptori meliore condicione allata? dicendum erit dissolutam priorem emptionem, etiamsi venditor sequentem non admittat.
Sabinus writes that it is permitted for the vendor to cast aside the better condition offered and to follow the first as if better, and thus we practice. What, however, if it was expressly stipulated that it be permitted for the purchaser to withdraw when a better condition is brought forward? It must be said that the prior sale is dissolved, even if the vendor does not admit the subsequent one.
Sed si proponatur a creditore pignus in diem addictum, non potest videri bona fide negotium agi, nisi adiectio recipiatur. quid ergo est, si inops emptor et impediendae tantummodo venditionis causa intervenit? potest creditor sine periculo priori emptori addicere.
But if a pledge is put forward by the creditor with an in diem additio, the transaction cannot be seen as being conducted in good faith unless the additio is accepted. What then, if a needy purchaser intervenes solely for the purpose of impeding the sale? The creditor can, without danger, award it to the prior purchaser.
Quod autem sabinus scribit fundum in diem addici non posse rursus, qui semel fuerat in diem addictus, ratione eiusmodi defendit, quia prioris, inquit, emptoris statim fit, scilicet quasi non videatur melior condicio allata, si non secure secundo emptori fundus addicitur, sed alia licitatio prospicitur. sed iulianus libro quinto decimo digestorum scripsit interesse multum, quid inter contrahentes actum sit, nec impedire quicquam vel hoc agi, ut saepius fundus collocetur, dum vel prima vel secunda vel tertia adiectione res a venditore discedat.
As to what Sabinus writes—that a landed estate cannot be adjudged in diem a second time, once it has been adjudged in diem—he defends this on reasoning of this sort: because, he says, it becomes at once the first buyer’s, namely as if no better condition had seemed to be brought forward, if the estate is not securely adjudged to the second buyer, but another licitation is envisaged. But Julian, in the fifteenth book of the Digest, wrote that it makes much difference what was transacted between the contracting parties, and that nothing hinders even this being arranged: that the estate be placed more than once, so long as at the first or second or third addition (increment/overbid) the thing passes from the seller.
Quod si uno pretio vendiderint, dicendum est totam priori emptam manere, quemadmodum si quis mihi totum fundum ad diem addixisset, postea vero pretio adiecto dimidium alii addixerit. celsus quoque libro octavo digestorum refert mucium brutum labeonem quod sabinum existimare: ipse quoque celsus idem probat et adicit mirari se a nemine animadversum, quod si prior emptor ita contraxit, ut nisi totum, fundum emptum nollet habere, non habere eum eam partem emptam, quam unus ex sociis posteriori emptori addicere noluit.
But if they have sold for one price, it must be said that the whole remains purchased by the prior buyer, just as if someone had knocked down to me the whole estate subject to a term, but afterwards, with an addition to the price, had knocked down one half to another. Celsus also, in the eighth book of the Digest, reports that Mucius, Brutus, Labeo, and Sabinus think this; Celsus himself likewise approves the same, and adds that he marvels that it has been noticed by no one, that, if the prior buyer thus contracted, that unless the whole he would not wish to have the estate as bought, he does not have as bought that part which one of the associates refused to knock down to the later buyer.
Sed si emptor alium non idoneum subiecit eique fundus addictus est, non video, inquit, quemadmodum priori sit emptus, cum alia venditio et vera postea subsecuta sit. sed verum est venditorem deceptum ex vendito actionem habere cum priore emptore, quanti sua intersit id non esse factum, per quam actionem et fructus, quos prior emptor perceperit et quo deterior res culpa vel dolo malo eius facta sit, recipiet venditor. et ita labeoni et nervae placet.
But if the purchaser has put forward another who is not suitable, and the estate has been adjudicated to him, I do not see, he says, how it has been bought for the former, since another and true sale followed thereafter. But it is correct that the seller, having been deceived, has an action ex vendito against the prior purchaser, for as much as it is of his own interest that this not have been done; through which action the seller will also recover the fruits which the prior purchaser has taken, and to the extent the thing has been made worse by his fault or malicious fraud. And thus it pleases Labeo and Nerva.
Sed et si pupillus postea sine tutoris auctoritate emerit, consentiente venditore abibitur a priore emptione. idem et de servo alieno: aliter atque si servo suo vel filio, quem in potestate habet, vel domino rei per errorem id addixerit, quia non est emptio his casibus. quod si alieno servo, quem putaverit liberum esse, addixerit, contra se habebit et erit hic similis egenti.
But also, if a ward afterwards has bought without the authority of his tutor, with the seller consenting he will be let go from the prior purchase. The same applies as to another’s slave: otherwise than if he has, by error, knocked it down to his own slave or to his son whom he has in his power, or to the owner of the thing, because in these cases there is no purchase. But if he has knocked it down to another’s slave whom he supposed to be free, he will have it against himself, and here he will be like one in want.
Si praedio in diem addicto ante diem venditor mortuus sit, sive post diem heres ei exsistat sive omnino non exsistat, priori praedium emptum est, quia melior condicio allata, quae domino placeat, intellegi non potest, cum is qui vendat non exsistat: quod si intra diem adiectionis heres existat, melior condicio ei adferri potest.
If an estate has been sold with an in diem adjection and the seller dies before the day, whether after the day an heir exists for him or none exists at all, the estate is deemed bought for the first purchaser, because a better condition brought forward, which would please the owner, cannot be understood when the one who would sell does not exist; but if within the day of the adjection an heir comes into existence, a better condition can be offered to him.
Si fundus in diem addictus fuerit pluris, ut quaedam ei accedant, non quae accesserint priori emptori, si non minoris sint hae res, quam quo pluris postea fundus venierit, prior venditio valet, quasi melior condicio allata non sit: si minoris sint. idemque aestimandum est, si dies longior pretii solvendi data fuerit, ut quaeratur, quantum ex usura eius temporis capi potuerit.
If a farm has been assigned in diem for a higher price, on terms that certain things are to accede to it, not those which may have acceded to the prior purchaser, if these things are not of less value than the amount by which the farm has afterwards been sold for more, the prior sale is valid, as though a better condition had not been brought; but if they are of less, then the better condition is treated as having been brought. And the same is to be assessed if a longer day for paying the price has been granted, namely, that one inquire how much could have been taken in interest (usury) for that time.
Imperator severus rescripsit: " sicut fructus in diem addictae domus, cum melior condicio fuerit allata, venditori restitui necesse est, ita rursus quae prior emptor medio tempore necessario probaverit erogata, de reditu retineri vel, si non sufficiat, solvi aequum est". et credo sensisse principem de empti venditi actione.
Emperor Severus wrote in a rescript: "just as the fruits of a house assigned under an in diem condition, when a better condition has been brought, must be restored to the seller, so in turn those expenditures which the prior buyer shall have necessarily proved to have been disbursed in the meantime, it is equitable that they be retained out of the return or, if that does not suffice, be paid." And I believe the prince had in mind the action of purchase and sale.
Cum duo servi duobus separatim denis in diem addicti sint et exstiterit qui pro utroque triginta det, refert, unius pretio decem an singulorum quina adiciat: secundum superiorem adiectionem is servus inemptus erit, cuius pretio adiectio facta fuerit, secundum posteriorem adiectionem uterque ad posteriorem emptorem pertinebit: quod si incertum sit, ad utrius pretium addiderit, a priore emptione non videtur esse discessum.
When two slaves have been separately knocked down for the day at ten apiece, and someone appears who offers thirty for both, it matters whether he adds ten to the price of one, or five to the price of each: according to the former addition, that slave, to whose price the addition was made, will be regarded as not bought (by the earlier buyer); according to the latter addition, both will belong to the later purchaser. But if it is uncertain to which one’s price he added, it is not considered that there has been a departure from the prior purchase.
Fundo in diem addicto si postea pretium adiectum est et venditor alio fundo applicito eum ipsum fundi posteriori emptori addixit et id sine dolo malo fecit, priori emptori obligatus non erit: nam quamvis non id tantum, quod in diem addictum erat, sed aliud quoque cum eo venierit, tamen, si venditor dolo caret, prioris emptoris causa absoluta est: id enim solum intuendum est, an priori venditori bona fide facta sit adiectio.
If an estate, sold with an in diem addictio, later had an increase added to the price, and the vendor, with another estate having been appended, knocked down that very estate to a subsequent purchaser of the estate, and did this without dolus malus, he will not be bound to the prior purchaser: for although not only that thing which had been subject to the in diem addictio, but also another thing along with it, was sold, nevertheless, if the vendor is free from dolus, the case of the prior purchaser is discharged: for this alone is to be considered, whether the addition was made in good faith to the prior purchaser.
Cum venditor fundi in lege ita caverit: " si ad diem pecunia soluta non sit, ut fundus inemptus sit", ita accipitur inemptus esse fundus, si venditor inemptum eum esse velit, quia id venditoris causa caveretur: nam si aliter acciperetur, exusta villa in potestate emptoris futurum, ut non dando pecuniam inemptum faceret fundum, qui eius periculo fuisset.
When the seller of an estate has thus stipulated in the contract: " if by the due day the money is not paid, that the estate be unbought," it is accordingly understood that the estate is unbought if the seller wishes it to be unbought, because this was stipulated for the seller’s sake: for if it were taken otherwise, if the villa were burned down, it would be in the buyer’s power, by not paying the money, to make the estate unbought, though it would have been at his risk.
Si fundus lege commissoria venierit, hoc est ut, nisi intra certum diem pretium sit exsolutum, inemptus fieret, videamus, quemadmodum venditor agat tam de fundo quam de his, quae ex fundo percepta sint, itemque si deterior fundus effectus sit facto emptoris. et quidem finita est emptio: sed iam decisa quaestio est ex vendito actionem competere, ut rescriptis imperatoris antonini et divi severi declaratur.
If a farm has been sold with a commissory clause—that is, that unless the price is paid within a set day, it would be as not purchased—let us consider how the seller should proceed both regarding the farm and the things that have been perceived from the farm, and likewise if the farm has been made worse by the act of the buyer. And indeed the sale is terminated; but the question has now been decided that an action ex vendito is available, as is declared by the rescripts of the Emperor Antoninus and the deified Severus.
Eleganter papinianus libro tertio responsorum scribit, statim atque commissa lex est statuere venditorem debere, utrum commissoriam velit exercere an potius pretium petere, nec posse, si commissoriam elegit, postea variare.
Elegantly Papinian in the third book of the Responses writes that, as soon as the commissory clause is incurred, the seller must at once determine whether he wishes to exercise the commissory clause or rather to demand the price, and that he cannot, if he has chosen the commissory clause, thereafter change his course.
Marcellus libro vicensimo dubitat, commissoria utrum tunc locum habet, si interpellatus non solvat, an vero si non optulerit. et magis arbitror offerre eum debere, si vult se legis commissoriae potestate solvere: quod si non habet cui offerat, posse esse securum.
Marcellus in the twentieth book is in doubt whether the commissoria then has place if, when interpellated, he does not pay, or rather if he does not offer (tender). And I am more of the opinion that he ought to offer, if he wishes to free himself by virtue of the lex commissoria; but if he has no one to whom he may offer, he can be secure.
Lege fundo vendito dicta, ut, si intra certum tempus pretium solutum non sit, res inempta sit, de fructibus, quos interim emptor percepisset, hoc agi intellegendum est, ut emptor interim eos sibi suo quoque iure perciperet: sed si fundus revenisset, aristo existimabat venditori de his iudicium in emptorem dandum esse, quia nihil penes eum residere oporteret ex re, in qua fidem fefellisset.
By a condition stated in the sale of a farm, to the effect that, if within a fixed time the price is not paid, the thing shall be as unbought, as to the fruits which in the interim the buyer had perceived, it is to be understood that this is being provided: that the buyer in the meantime should perceive them for himself, by his own right as well; but if the farm had reverted, Aristo thought that an action ought to be granted to the seller against the buyer concerning these, because nothing ought to remain in his hands from a matter in which he had broken faith.
De lege commissoria interrogatus ita respondit, si per emptorem factum sit, quo minus legi pareretur, et ea lege uti venditor velit, fundos inemptos fore et id, quod arrae vel alio nomine datum esset, apud venditorem remansurum.
Asked about the commissory law, he answered thus: if through the buyer’s doing it has come about that the law was not complied with, and the seller wishes to use that law, the estates will be as unbought, and what had been given as earnest-money (arra) or under another name will remain with the seller.
Post diem lege commissoria comprehensum venditor partem reliquae pecuniae accepit. respondit, si post statutum diem reliquae pecuniae venditor legem dictam non exercuisset et partem reliqui debiti accepisset, videri recessum a commissoria.
After the day encompassed by the commissory clause the seller accepted a part of the remaining money. he answered, if after the day set for the remaining money the seller had not exercised the said law and had accepted a part of the remaining debt, it is considered that there has been a withdrawal from the commissory clause.
Mulier fundos gaio seio vendidit et acceptis arrae nomine certis pecuniis statuta sunt tempora solutioni reliquae pecuniae: quibus si non paruisset emptor, pactus est, ut arram perderet et inemptae villae essent. die statuto emptor testatus est se pecuniam omnem reliquam paratum fuisse exsolvere ( et sacculum cum pecunia signatorum signis obsignavit), defuisse autem venditricem, posteriore autem die nomine fisci testato conventum emptorem, ne ante mulieri pecuniam exsolveret, quam fisco satisfaceret. quaesitum est, an fundi non sint in ea causa, ut a venditrice vindicari debeant ex conventione venditoris.
A woman sold estates to Gaius Seius, and, certain monies having been received by way of arrha (earnest-money), times were set for payment of the remaining money: if the buyer should not comply with these, it was agreed that he would lose the arrha and that the villas were to count as unbought. On the appointed day the buyer attested that he had been ready to pay out all the remaining money ( and he sealed the little bag with the money with the seals of the signatories), but that the vendoress had been lacking; on the following day, however, in the name of the fisc, it was attested that the buyer was enjoined not to pay the money to the woman before he satisfied the fisc. It was asked whether the estates are not in such a position that they ought to be vindicated by the vendoress pursuant to the vendor’s agreement.
In hereditate vendita utrum ea quantitas spectatur, quae fuit mortis tempore, an ea, quae fuit cum aditur hereditas, an ea quae fuit cum hereditas venumdatur, videndum erit. et verius est hoc esse servandum quod actum est: plerumque autem hoc agi videtur, ut quod ex hereditate pervenit in id tempus quo venditio fit, id videatur venisse.
In an inheritance sold, it will have to be considered whether the quantity regarded is that which existed at the time of death, or that which existed when the inheritance is entered upon, or that which existed when the inheritance is sold. And the truer course is to observe what was agreed; for the most part, moreover, it seems to be arranged thus, that whatever from the inheritance has accrued up to the time when the sale is made is deemed to have been sold.
Illud potest quaeri, si etiam impuberi sit substitutus is qui vendidit hereditatem testatoris, an etiam id, quod ex impuberis hereditate ad eum qui vendidit hereditatem pervenit, ex empto actioni locum faciat. et magis est, ne veniat, quia alia hereditas est: licet enim unum testamentum sit, alia tamen atque alia hereditas est. plane si hoc actum sit, dicendum erit etiam impuberis hereditatem in venditionem venire, maxime si iam delata impuberis hereditate venierit hereditas.
That can be asked, if the one who sold the testator’s inheritance has also been appointed as substitute to the minor (impubes), whether even that which, from the minor’s inheritance, has come to him who sold the inheritance affords room for the action ex empto. And the better view is that it does not, because it is a different inheritance: for although there is one testament, nevertheless one inheritance and another are distinct inheritances. Clearly, if this was expressly transacted, it must be said that the minor’s inheritance also comes within the sale, especially if the inheritance was sold after the minor’s inheritance had already been delated.
Pervenisse ad venditorem hereditatis quomodo videatur, quaeritur. et ego puto, antequam quidem corpora rerum hereditariarum nactus venditor fuerit, hactenus videri ad eum pervenisse, quatenus mandare potest earum rerum persecutionem actionesque tribuere: enimvero ubi corpora nactus est vel debita exegit, plenius ad eum videri pervenisse. sed et si rerum venditarum ante hereditatem venditam pretia fuerit consecutus, palam est ad eum pretia rerum pervenisse.
It is asked in what manner something is deemed to have come to the seller of an inheritance. And I think that, before indeed the seller has obtained the corporeal things of the inheritance, it is to be considered as having come to him only to this extent: insofar as he can mandate the pursuit of those things and grant actions. But indeed, when he has obtained the corporeal things or has exacted the debts, it is to be regarded as having come to him more fully. But also, if he has obtained the prices of things sold before the inheritance was sold, it is clear that the prices of the things have come to him.
this must be held: that it is seen to have come with effect, not in the first reckoning; therefore, what someone has paid under the name of legacies is not considered to have come to him; and if there is any debt or any other hereditary burden, it will rightly be denied to have come. And the rationale of equity also requires that the prices of things donated before the sale be made good.
Sed et si quid dolo malo eorum factum est, quo minus ad eos perveniat, et hoc emptori praestandum est: fecisse autem dolo malo quo minus perveniat videtur, sive alienavit aliquid, vel etiam accepto quem liberavit vel id egit dolo malo, ne de hereditate adquireretur vel ne possessionem adipisceretur quam posset adipisci. sed et si non dolo malo, sed lata culpa admiserit aliquid, utique tenebitur: deperdita autem et deminuta sine dolo malo venditoris non praestabuntur.
But also, if anything has been done by their fraudulent intent (dolus malus), by which it the less comes to them, this too must be warranted to the buyer: and he is deemed to have acted with fraudulent intent to prevent its coming, whether he alienated something, or even, by acceptilation, released a debtor whom he had accepted, or he acted with fraudulent intent so that nothing might be acquired from the inheritance, or so that he might not obtain the possession which he could obtain. But also if, not by fraudulent intent, but by gross fault (lata culpa), he has committed something, he will certainly be held liable: but things lost and diminished without the seller’s fraudulent intent will not be warranted.
Illud quaesitum est, an venditor hereditatis ob debitum a filio suo qui in potestate eius esset servove ei, cuius hereditatem vendidisset, praestare debeat emptori. et visum est, quidquid dumtaxat de peculio filii servive aut in suam rem versum inveniatur, praestare eum debere.
It was asked whether the seller of an inheritance ought to make good to the buyer, on account of a debt owed by his son who was in his power or by his slave to the person whose inheritance he had sold. and it was held that he must make good only whatever is found to be from the peculium of the son or slave, or to have been turned to his own account.
Solet quaeri, an et, si quid lucri occasione hereditatis venditor senserit, emptori restituere id debeat. et est apud iulianum haec quaestio tractata libro sexto digestorum et ait, quod non debitum ^ debitur^ exegerit, retinere heredem et quod non debitum solverit, non reputare: nam hoc servari, ut heres emptori non praestet quod non debitum exegerit, neque ab eo consequatur quod non debitum praestiterit. si autem condemnatus praestiterit, hoc solum heredi sufficit esse eum condemnatum sine dolo malo suo, etiamsi maxime creditor non fuerit is cui condemnatus est heres: quae sententia mihi placet.
It is wont to be asked whether also, if the seller has realized any profit on the occasion of the inheritance, he ought to restore it to the buyer. And this question is treated by Julian in the sixth book of the Digest, and he says that the heir may retain what he has exacted as not owed (^as owed^), and not reckon what he has paid as not owed: for this is observed—that the heir does not make good to the buyer what he has exacted as not owed, nor does he recover from him what he has rendered as not owed. But if, however, he has performed under a sentence of condemnation, this alone suffices for the heir: that he was condemned without his own dolus malus, even if most certainly the person to whom the heir was condemned was not the creditor; which opinion pleases me.
Non solum autem hereditarias actiones, sed etiam eas obligationes quas ipse heres constituit dicendum erit praestari emptori debere: itaque et si fideiussorem acceperit ab hereditario debitore, ipsam actionem quam habet heres praestare emptori debebit: sed et si novaverit vel in iudicium deduxerit actionem, praestare debebit hanc ipsam actionem quam nactus est.
Not only hereditary actions, but also those obligations which the heir himself has constituted, must be said to have to be furnished to the buyer: and so, even if he has received a surety (fideiussor) from the debtor of the inheritance, he must furnish to the buyer the very action which the heir has: but even if he has novated or has brought the action into judgment, he must furnish this very action which he has obtained.
Denique si rem hereditariam heres vendiderit ac per hoc fuerit condemnatus, non habet contra emptorem actionem, quia non ideo condemnatur quod heres esset, sed quod vendiderit. sed si pretium rei distractae emptori hereditatis dedit, videamus, an locus sit ex vendito actioni: et putem esse.
Finally, if the heir has sold a hereditary thing and thereby has been condemned, he has no action against the buyer, because he is not condemned for the reason that he was heir, but because he sold. But if he gave the price of the thing sold to the purchaser of the inheritance, let us see whether there is room for an action ex vendito; and I think there is.
Sive ipse venditor dederit aliquid pro hereditate sive procurator eius sive alius quis pro eo, dum negotium eius gerit, locus erit ex vendito actioni, dummodo aliquid absit venditori hereditatis: ceterum si nihil absit venditori, consequens erit dicere non competere ei actionem.
Whether the vendor himself has given something on account of the inheritance, or his procurator, or any other person for him, while managing his business, there will be room for an action ex vendito, provided that something is lacking to the vendor of the inheritance; but if nothing is lacking to the vendor, it will be consequent to say that the action does not lie for him.
Apud iulianum scriptum est, si venditor hereditatis exceperit servum sine peculio et eius nomine cum eo fuerit actum de peculio et in rem verso, id dumtaxat eum consequi, quod praestiterit eius peculii nomine quod emptorem sequi debeat, aut quod in rem defuncti versum est: his enim casibus aes alienum emptoris solvit, ex ceteris causis suo nomine condemnetur.
It is written in Julian that, if the seller of an inheritance has excepted a slave without the peculium, and in his name suit has been brought against him by the action on the peculium and the in rem verso action, then he is to recover only that which he has paid under the head of that peculium which ought to follow the buyer, or what has been turned into the estate of the deceased: for in these cases he discharges the buyer’s debt; in the other causes let him be condemned in his own name.
Quid ergo si servum cum peculio exceperit venditor hereditatis conventusque de peculio praestitit? Marcellus libro sexto digestorum non repetere eum scripsit, si modo hoc actum est, ut, quod superfuisset ex peculio, hoc haberet: at si contra actum est, recte repetere eum posse ait: si vero nihil expressim inter eos convenit, sed tantummodo peculii mentio facta est, cessare ex vendito actionem constat.
What, then, if the seller of an inheritance has excepted a slave together with his peculium and has warranted by agreement concerning the peculium? Marcellus, in the sixth book of his Digest, wrote that he is not to recover, provided only this was transacted: that whatever had been left over from the peculium, this he should have; but if the contrary was arranged, he says that he can rightly recover. If, however, nothing was expressly agreed between them, but only a mention of the peculium was made, it is settled that the action ex vendito ceases.
Si venditor hereditatis aedes sibi exceperit, quarum nomine damni infecti promissum fuerat, interest quid acti sit: nam si ita excepit, ut damni quoque infecti stipulationis onus sustineret, nihil ab emptore consequeretur: si vero id actum erit, ut emptor hoc aes alienum exsolveret, ad illum onus stipulationis pertinebit: si non apparebit quid acti sit, verisimile erit id actum, ut eius quidem damni nomine, quod ante venditionem datum fuerit, onus ad emptorem, alterius temporis ad heredem pertineat.
If the seller of an inheritance has reserved to himself buildings, in whose name a stipulation for “unmade damage” (damnum infectum) had been promised, it matters what was transacted: for if he so reserved them that he also bore the burden of the stipulation for damnum infectum, he would obtain nothing from the buyer; but if it was agreed that the buyer should discharge this debt (aes alienum), the burden of the stipulation will pertain to him; if it does not appear what was agreed, it will be probable that it was agreed thus: that, for that damage indeed on account of which a stipulation had been given before the sale, the burden pertains to the buyer, but for another period to the heir.
Si titius maevi hereditatem seio vendiderit et a seio heres institutus eam hereditatem attio vendiderit, an ex priore venditione hereditatis cum attio agi possit? et ait iulianus: quod venditor hereditatis petere a quolibet extraneo herede potuisset, id ab hereditatis emptore consequatur: et certe si seio alius heres exstitisset, quidquid venditor maevianae hereditatis nomine praestitisset, id ex vendito actione consequi ab eo potuisset: nam et si duplam hominis a seio stipulatus fuissem et ei heres exstitissem eamque hereditatem titio vendidissem, evicto homine rem a titio servarem.
If titius should have sold maevius’s inheritance to seius, and an heir instituted by seius should have sold that inheritance to attius, can an action be brought against attius on the prior sale of the inheritance? And julian says: whatever the vendor of the inheritance could have sought from any external heir, that he obtains from the purchaser of the inheritance. And certainly, if another heir had arisen for seius, whatever the vendor in the name of the maevius inheritance had had to render, he could have recovered from him by the action ex vendito. For also, if I had stipulated double for a slave from seius, and had become his heir and had sold that inheritance to titius, upon eviction of the slave I would preserve the claim against titius.
Si quid publici vectigalis nomine praestiterit venditor hereditatis, consequens erit dicere agnoscere emptorem et hoc debere: namque hereditaria onera etiam haec sunt. et si forte tributorum nomine aliquid dependat, idem erit dicendum.
If the seller of an inheritance has performed anything under the name of public vectigal (revenue-tax), it will be consequent to say that the buyer should recognize that he owes this as well: for these too are hereditary burdens. And if perchance he disburses anything under the name of tributes, the same is to be said.
Quod si funere facto heres vendidisset hereditatem, an impensam funeris ab emptore consequatur? et ait labeo emptorem impensam funeris praestare debere, quia et ea, inquit, impensa hereditaria esset: cuius sententiam et iavolenus putat veram et ego arbitror.
But if, the funeral having been carried out, the heir had sold the inheritance, does he recover the expense of the funeral from the buyer? and labeo says that the buyer ought to provide the expense of the funeral, because, says he, that expense too would be hereditary: whose opinion both iavolenus thinks true and I also judge.
Cum quis debitori suo heres exstitit, confusione creditor esse desinit: sed si vendidit hereditatem, aequissimum videtur emptorem hereditatis vicem heredis optinere et idcirco teneri venditori hereditatis, sive cum moritur testator debuit ( quamvis post mortem debere desiit adita a venditore hereditate) sive quid in diem debeatur sive sub condicione et postea condicio exstitisset, ita tamen, si eius debiti adversus heredem actio esse poterat, ne forte etiam ex his causis, ex quibus cum herede actio non est, cum emptore agatur.
When someone has become heir to his debtor, by confusio he ceases to be a creditor: but if he has sold the inheritance, it seems most equitable that the purchaser of the inheritance should obtain the place of the heir and for that reason be held to the seller of the inheritance, whether the testator, when he dies, owed ( although after death he ceased to owe, the inheritance having been entered upon by the seller) or something be owed for a day certain or under a condition and afterwards the condition should have arisen, provided, however, that an action for that debt could be had against the heir, lest perhaps also from those causes from which there is no action with the heir, suit be brought against the purchaser.
Quod si nulla hereditas ad venditorem pertinuit, quantum emptori praestare debuit, ita distingui oportebit, ut, si est quidem aliqua hereditas, sed ad venditorem non pertinet, ipsa aestimetur, si nulla est, de qua actum videatur, pretium dumtaxat et si quid in eam rem impensum est emptor a venditore consequatur.
But if no inheritance pertained to the seller, the amount he ought to make good to the buyer must be distinguished as follows: if indeed there is some inheritance, but it does not pertain to the seller, that very inheritance is to be appraised; if there is none which appears to have been the subject of the transaction, the buyer shall recover from the seller only the price and whatever has been expended on that matter.
Quod si in venditione hereditatis id actum est, si quid iuris esset venditoris, venire nec postea quicquam praestitu iri: quamvis ad venditorem hereditas non pertinuerit, nihil tamen eo praestabitur, quia id actum esse manifestum est, ut quemadmodum emolumentum negotiationis, ita periculum ad emptorem pertineret.
But if, in the sale of an inheritance, it was agreed that whatever right the seller had was to be sold and that thereafter nothing would be warranted: although the inheritance did not pertain to the seller, nevertheless nothing will be furnished on that account, because it is manifest that it was agreed that, just as the emolument of the negotiation, so the peril should pertain to the purchaser.
Si ex pluribus heredibus unus, antequam ceteri adirent hereditatem, pecuniam, quae sub poena debebatur a testatore, omnem solverit et hereditatem vendiderit nec a coheredibus suis propter egestatem eorum quicquam servare poterit, cum emptore hereditatis vel ex stipulatu vel ex vendito recte experietur: omnem enim pecuniam hereditario nomine datam eo manifestius est, quod in iudicio familiae herciscundae deducitur, per quod nihil amplius unusquisque a coheredibus suis consequi potest, quam quod tamquam heres impenderit.
If, from among several heirs, one, before the others entered upon the inheritance, has paid in full all the money which was owed under a penalty by the testator and has sold the inheritance, and cannot recover anything from his coheirs because of their destitution, he will properly proceed against the purchaser of the inheritance either on the stipulation or on the sale; for it is all the more manifest that all the money given in the name of the inheritance is deducted in the action for partition of the family estate, by which each person can obtain from his coheirs nothing more than what he has expended as heir.
Multum interest, sub condicione aliqua obligatio veneat an, cum ipsa obligatio sub condicione sit, pure veneat. priore casu deficiente condicione nullam esse venditionem, posteriore statim venditionem consistere: nam si titius tibi decem sub condicione debeat et ego abs te nomen eius emam, confestim ex empto vendito agere potero, ut acceptum ei facias.
It makes much difference whether an obligation is sold under some condition, or, when the obligation itself is under condition, it is sold pure. in the former case, if the condition fails, there is no sale; in the latter, the sale takes effect at once: for if Titius owes you ten under a condition and I buy his claim from you, I will immediately be able to bring an action on purchase and sale, that you credit it to him as received.
Venditor ex hereditate interposita stipulatione rem hereditariam persecutus alii vendidit: quaeritur, quid ex stipulatione praestare debeat: nam bis utique non committitur stipulatio, ut et rem et pretium debeat. et quidem si, posteaquam rem vendidit heres, intercessit stipulatio, credimus pretium in stipulationem venisse: quod si antecessit stipulatio, deinde rem nactus est, tunc rem debebit. si ergo hominem vendiderit et is decesserit, an pretium eiusdem debeat?
A seller, out of an inheritance, with a stipulation interposed, having pursued an hereditary thing, sold it to another: the question is asked what he ought to furnish under the stipulation; for the stipulation is surely not incurred twice, so that he should owe both the thing and the price. And indeed, if, after the heir sold the thing, the stipulation intervened, we believe the price came into the stipulation: but if the stipulation preceded, and then he obtained the thing, then he will owe the thing. If therefore he sold a slave and he has died, does he owe that one’s price?
for the promisor of Stichus would not be bound, if he had sold him, upon his death, provided no delay had intervened. but when I have sold an inheritance and afterwards have sold a thing out of it, it can seem that I am doing his business rather than that of the inheritance. but this, in the case of a single item, cannot be believed: for if I have sold the same man to you and, with him not yet delivered, I have also sold him to another and have received the price, upon his death let us consider whether I owe you nothing under the purchase, since I did not cause delay in delivering (for the price of a man sold is received not from the thing, but on account of the negotiation), and let it be as though I had not sold to the other: for to you I owed the thing, not the action.
but when the inheritance is sold, it is seen to be tacitly transacted thus: that, if I have done anything in the capacity of heir, I should render it to the buyer, as though I were managing his business; just as the seller of a farm must render the fruits by a rule of good faith, although, if he had neglected it as though it were another’s, nothing could be imputed to him, unless he were charged with fault. What if I demanded the thing which I sold, another being in possession, and received the assessment of the suit—do I owe him the price or the thing? Of course the thing; for I ought to furnish to him not actions, but the thing: and if, having been ejected by force, or on account of the action of theft, I have exacted the double, this will not pertain to the buyer.
Hereditatem cornelii vendidisti: deinde attius, cui a te herede cornelius legaverat, priusquam legatum ab emptore perciperet, te fecit heredem: recte puto ex vendito te acturum ut tibi praestetur, quia ideo eo minus hereditas venierit, ut id legatum praestaret emptor, nec quicquam intersit, utrum attio, qui te heredem fecerit, pecunia debita sit, an legatario.
You sold the inheritance of Cornelius: then Attius, to whom Cornelius had bequeathed (you being heir), before he received the legacy from the buyer, made you his heir: I think, rightly, that you will bring an action ex vendito so that it be furnished to you, because the inheritance sold for that much the less for the very reason that the buyer should discharge that legacy; nor does it make any difference whether the money is owed to Attius, who made you heir, or to the legatee.
Si excepto fundo hereditario veniit hereditas, deinde eius fundi nomine venditor aliquid adquisit ^ adquisiit^, debet id praestare emptori hereditatis. paulus: immo semper quaeritur in ea re, quid actum fuerit: si autem id non apparebit, praestare eam rem debebit emptori venditor, nam id ipsum ex ea hereditate ad eum pervenisse videbitur non secus ac si eum fundum in hereditate vendenda non excepisset.
If, with the hereditary farm excepted, the inheritance is sold, then afterwards, on account of that farm, if the vendor has acquired ^ adquisiit^ something, he ought to make it good to the purchaser of the inheritance. paulus: rather, it is always inquired in this matter what was agreed; but if that does not appear, the vendor must make that thing good to the purchaser, for that very thing will be seen to have come to him from that inheritance, not otherwise than if he had not excepted that farm in selling the inheritance.
Celsus filius putabat, si vendidisset mihi filius familias rem peculiarem, etiam, si conveniat ut abeatur ab ea venditione, inter patrem et filium et me convenire debere, ne, si cum patre solo pactus sim, filius non possit liberari et quaeratur, utrumne nihil agatur ex ea pactione an vero ego quidem liberer, filius maneat obligatus, sicuti, si pupillus sine tutoris auctoritate paciscatur, ipse quidem liberatur, non etiam qui cum eo pactus est. nam quod aristo dixit posse ita pacisci, ut unus maneat obligatus, non est verum, quia pro una parte contrahentium abiri pacto ab emptione non possit: et ideo si ab una parte renovatus sit contractus, dicitur non valere eiusmodi pactionem. sed dicendum est patre paciscente et liberato adversario filium quoque obiter liberari.
Celsus the son thought that, if a son-in-power sold to me a thing belonging to his peculium, even if it is agreed that one depart from that sale, it ought to be agreed among the father and the son and me, lest, if I have made a pact with the father alone, the son cannot be freed, and the question arise whether nothing is effected by that pact, or rather that I indeed am freed while the son remains obligated—just as, if a ward makes a pact without the authority of his guardian, he indeed is freed, but not also the one who made the pact with him. For what Aristo said—that it is possible to make a pact in such a way that one alone remains obligated—is not true, because by a pact one cannot depart from a purchase for only one side of the contracting parties; and therefore, if the contract has been renewed on one side, such a pact is said not to be valid. But it must be said that, when the father makes the pact and the counterparty is released, the son also is incidentally released.
Si quam rem a te emi, eandem rursus a te pluris minorisve emero, discessimus a priore emptione ( potest enim, dum res integra est, conventione nostra infecta fieri emptio) atque ita consistit posterior emptio, quasi nulla praecesserit. sed non poterimus eadem ratione uti post pretium solutum emptione repetita, cum post pretium solutum infectam emptionem facere non possumus.
If I have bought some thing from you, and I again buy the same from you for more or for less, we depart from the prior purchase (for it is possible, while the matter is still intact, by our agreement for the purchase to be made undone), and thus the later purchase stands as if none had preceded. But we shall not be able to use the same course after the price has been paid, with the sale repeated, since after the price has been paid we cannot make the purchase undone.
Emptio et venditio sicut consensu contrahitur, ita contrario consensu resolvitur, antequam fuerit res secuta: ideoque quaesitum est, si emptor fideiussorem acceperit, vel venditor stipulatus fuerit, an nuda voluntate resolvatur obligatio. iulianus scripsit ex empto quidem agi non posse, quia bonae fidei iudicio exceptiones pacti insunt: an autem fideiussori utilis sit exceptio, videndum: et puto liberato reo et fideiussorem liberari. item venditorem ex stipulatu agentem exceptione summoveri oportet, idemque iuris esse, si emptor quoque rem in stipulationem deduxerit.
Purchase and sale, just as it is contracted by consent, so by contrary consent it is resolved, before performance has taken place: and therefore it has been asked, if the buyer has taken a surety, or the seller has stipulated, whether by bare will the obligation is resolved. Julian wrote that an action on purchase (ex empto) cannot be brought, because in a good‑faith judgment the exceptions of the pact are contained; but whether a useful exception is available to the surety must be considered: and I think that, the principal debtor being released, the surety also is released. Likewise, the seller suing on the stipulation ought to be removed by the exception, and the same law holds if the buyer too has brought the matter into stipulation.
Cum emptor venditori vel emptori venditor acceptum faciat, voluntas utriusque ostenditur id agentis, ut a negotio discedatur et perinde habeatur, ac si convenisset inter eos, ut neuter ab altero quicquam peteret, sed ut evidentius appareat, acceptilatio in hac causa non sua natura, sed potestate conventionis valet.
When the buyer makes an acceptilation to the seller, or the seller to the buyer, the will of each is shown as aiming at this: that the transaction be departed from, and that it be held just as if it had been agreed between them that neither should demand anything from the other; but, that it may appear more clearly, in this case the acceptilation is valid not by its own nature, but by the power of the agreement.
Si pupilli persona intervenit, qui ante sine tutoris auctoritate, deinde tutore auctore emit, quamvis venditor iam ei obligatus fuit, tamen quia pupillus non tenebatur, renovata venditio efficit, ut invicem obligati sint: quod si ante tutoris auctoritas intervenerit, deinde sine tutore auctore emit, nihil actum est posteriore emptione. idem potest quaeri, si sine tutoris auctoritate pactus fuerit, ut discedatur ab emptione: an proinde sit, atque si ab initio sine tutoris auctoritate emisset, ut scilicet ipse non teneatur, sed agente eo retentiones competant. sed nec illud sine ratione dicetur, quoniam initio recte emptio sit contracta, vix bonae fidei convenire eo pacto stari, quod alteri captiosum sit, et maxime, si iusto errore sit deceptus.
If the person of a ward intervenes—who first bought without the guardian’s authority, then bought with the guardian authorizing—although the seller was already obligated to him, nevertheless, because the ward was not bound, the renewed sale brings it about that they are mutually obligated; but if the guardian’s authority had first intervened, and then he bought without the guardian authorizing, nothing is effected by the later purchase. The same can be asked if, without the guardian’s authority, he made a pact that the purchase be departed from (rescinded): whether it is just the same as if from the beginning he had bought without the guardian’s authority—namely, that he himself is not bound, but, when he is the one suing, set-offs (retentions) are competent against him. Yet this too will not be said without reason: since at the beginning the purchase was rightly contracted, it scarcely accords with good faith to stand by a pact which is captious to the other party, and especially if he was deceived by an excusable error.
Titius seii procurator defuncto seio ab eo scriptus heres, cum ignoraret, fundum vendente servo hereditario, quasi procurator subscripsit: quaesitum est, an cognito eo, priusquam emptio perficeretur, a venditione discedere possit. respondit titium, si non ipse vendidit, non idcirco actionibus civilibus teneri, quod servo vendente subscripserat, sed servi nomine praetoria actione teneri.
Titius, the procurator of Seius, Seius being deceased, having been written by him as heir, when he was unaware, with the hereditary slave selling a farm, subscribed as if procurator: it was asked whether, upon this being known, before the purchase was perfected, he could withdraw from the sale. He responded that Titius, if he himself did not sell, is not on that account liable under civil actions because he had subscribed while the slave was selling, but is liable by a praetorian action in the slave’s name.
Fundus qui lucii titii erat ob vectigale rei publicae veniit: sed cum lucius titius debitor professus esset paratum se esse vectigal exsolvere solidum, cum minore venisset fundus, quam debita summa esset, praeses provinciae rescindit ^ rescidit^ venditionem eumque restitui iussit lucio titio: quaesitum est, an post sententiam praesidis, antequam restitueretur, in bonis lucii titii fundus emptus esset. respondit non prius, quam emptori pretium esset illatum vel, si pretium nondum esset ab emptore solutum, in vectigal satisfactum esset.
The estate which was Lucius Titius’s came up for sale on account of the public tax; but since Lucius Titius, as debtor, had declared himself prepared to pay off the tax in full, and since the estate had fetched less than the amount owed, the governor of the province rescinds ^ rescinded^ the sale and ordered it to be restored to Lucius Titius. It was asked whether, after the governor’s judgment, before it was restored, the estate purchased had counted among the assets of Lucius Titius. He answered: not before the price had been tendered to the purchaser, or, if the price had not yet been paid by the purchaser, satisfaction had been made for the tax.
Seius a lucio titio emit fundum lege dicta, ut, si ad diem pecuniam non solvisset, res inempta fieret. seius parte pretii praesenti die soluta, defuncto venditore, filiis eius pupillaris aetatis et ipse tutor cum aliis datus, neque contutoribus pretium secundum legem numeravit nec rationibus tutelae rettulit: quaesitum est, an irrita emptio facta esset. respondit secundum ea quae proponerentur inemptam videri.
Seius bought an estate from Lucius Titius with a stipulation stated by law, that, if he did not pay the money by the day, the thing would be deemed unbought. Seius, with part of the price paid on the present day, the seller having died, his sons being of pupillary age and he himself appointed as tutor together with others, neither paid to his co-tutors the price according to the stipulation nor entered it into the accounts of the guardianship: it was asked whether the purchase had become void. He replied that, according to the matters set forth, it seemed unbought.
Emptor praediorum cum suspicaretur numeriam et semproniam controversiam moturas, pactus est cum venditore, ut ex pretio aliqua summa apud se maneret, donec emptori fideiussor daretur a venditore: postea venditor eam legem inseruit, ut, si ex die pecunia omnis soluta non esset et venditor ea praedia venisse nollet, invendita essent: interea de adversariis alteram mulierem venditor superavit, cum altera transegit, ita ut sine ulla quaestione emptor praedia possideret: quaesitum est, cum neque fideiussor datus est nec omnis pecunia secundum legem suis diebus soluta sit, an praedia invendita sint. respondit, si convenisset, ut non prius pecunia solveretur quam fideiussor venditi causa daretur, nec id factum esset, cum per emptorem non staret quo minus fieret, non posse posteriorem legis partem exerceri.
When the buyer of the estates suspected that Numeria and Sempronia were going to stir up a controversy, he made an agreement with the seller that some sum out of the price should remain with him until a surety was given to the buyer by the seller: afterwards the seller inserted this term, that, if by the day all the money had not been paid and the seller should be unwilling that those estates had been sold, they should be deemed unsold: meanwhile, as to the adversaries, the seller overcame one woman, with the other he settled, so that the buyer might possess the estates without any question: the question was asked, since neither a surety was given nor was all the money paid according to the term on its days, whether the estates are unsold. He responded, that if it had been agreed that the money should not be paid before a surety for the thing sold was given, and that had not been done, since it was not through the buyer that it failed to be done, the latter part of the term could not be enforced.
Si vinum venditum acuerit vel quid aliud vitii sustinuerit, emptoris erit damnum, quemadmodum si vinum esset effusum vel vasis contusis vel qua alia ex causa. sed si venditor se periculo subiecit, in id tempus periculum sustinebit, quoad se subiecit: quod si non designavit tempus, eatenus periculum sustinere debet, quoad degustetur vinum, videlicet quasi tunc plenissime veneat, cum fuerit degustatum. aut igitur convenit, quoad periculum vini sustineat, et eatenus sustinebit, aut non convenit et usque ad degustationem sustinebit.
If the wine sold has turned sharp (sour) or has borne some other defect, the loss will be the buyer’s, just as if the wine had been spilled or the vessels broken or from any other cause. But if the seller has subjected himself to the risk, he will bear the risk for that period to which he subjected himself; and if he has not designated a time, he ought to bear the risk until the wine is tasted, namely on the understanding that it is then most completely sold when it has been tasted. Therefore either it is agreed how long he is to bear the risk of the wine, and he will bear it for so long; or it is not agreed, and he will bear it up to the tasting.
Sed et custodiam ad diem mensurae venditor praestare debet: priusquam enim admetiatur vinum, prope quasi nondum venit. post mensuram factam venditoris desinit esse periculum: et ante mensuram periculo liberatur, si non ad mensuram vendidit, sed forte amphoras vel etiam singula dolia.
But also the seller ought to provide custody up to the day of the measure: for before the wine is measured out, it is almost as if it has not yet come. After the measure has been made, the peril ceases to be the seller’s; and before the measure he is freed from peril, if he did not sell by measure, but, for example, by amphoras or even by individual casks.
Licet autem venditori vel effundere vinum, si diem ad metiendum praestituit nec intra diem admensum est: effundere autem non statim poterit, priusquam testando denuntiet emptori, ut aut tollat vinum aut sciat futurum, ut vinum effunderetur. si tamen, cum posset effundere, non effudit, laudandus est potius: ea propter mercedem quoque doliorum potest exigere, sed ita demum, si interfuit eius inania esse vasa in quibus vinum fuit ( veluti si locaturus ea fuisset) vel si necesse habuit alia conducere dolia. commodius est autem conduci vasa nec reddi vinum, nisi quanti conduxerit ab emptore reddatur, aut vendere vinum bona fide: id est quantum sine ipsius incommodo fieri potest operam dare, ut quam minime detrimento sit ea res emptori.
However, it is permitted to the vendor even to pour out the wine, if he appointed a day for measuring and it was not measured within the day: but he will not be able to pour it out straightway, before he, by testimony, gives notice to the buyer, that he either remove the wine or know that it will come about that the wine would be poured out. If, however, when he could pour it out, he did not pour it out, he is rather to be praised: on that account he can also exact the hire of the casks, but only if it was to his interest that the vessels in which the wine had been be empty (as if he were going to lease them) or if he had necessity to hire other casks. It is more convenient, however, that the vessels be hired out and the wine not be returned, unless the amount for which he hired them be repaid by the buyer, or to sell the wine in good faith: that is, to give effort, as far as it can be done without inconvenience to himself, so that the matter be with as little detriment as possible to the buyer.
Si doliare vinum emeris nec de tradendo eo quicquam convenerit, id videri actum, ut ante evacuarentur quam ad vindemiam opera eorum futura sit necessaria: quod si non sint evacuata, faciendum, quod veteres putaverunt, per corbem venditorem mensuram facere et effundere: veteres enim hoc propter mensuram suaserunt, si, quanta mensura esset, non appareat, videlicet ut appareret, quantum emptori perierit.
If you have bought wine in dolia and nothing has been agreed about delivering it, it is considered to have been arranged that they be evacuated before the vintage, when their use will be necessary. But if they are not evacuated, what the ancients thought must be done: the vendor is to make the measure by means of a basket and pour it out. For the ancients advised this on account of the measure, if how great the measure was does not appear, namely so that it might be evident how much has perished to the buyer.
Si quis vina vendiderit et intra diem certum degustanda dixerit, deinde per venditorem steterit, quo minus degustarentur, utrum praeteritum dumtaxat periculum acoris et mucoris venditor praestare debet, an vero etiam die praeterito ( ut, si forte corrupta sint posteaquam dies degustandi praeteriit, periculum ad venditorem pertineat), an vero magis emptio sit soluta ( quasi sub condicione venierint, hoc est si ante diem illum fuissent degustata)? et intererit, quid actum sit: ego autem arbitror, si hoc in occulto sit, debere dici emptionem manere, periculum autem ad venditorem respicere etiam ultra diem degustando praefinitum, quia per ipsum factum est.
If someone has sold wines and said they were to be tasted within a certain day, and then it was by the seller’s doing that they were not tasted, whether the seller ought to make good only the past risk of sourness and mold, or indeed also after the day has passed (so that, if perhaps they were corrupted after the day for tasting has passed, the risk pertains to the seller), or rather the sale is dissolved (as if they were sold under a condition, that is, if before that day they had been tasted)? and it will matter what was transacted: I, however, judge that, if this is hidden, it should be said that the purchase remains, but that the risk looks to the seller even beyond the day preappointed for tasting, because it was brought about by his own act.
Si aversione vinum venit, custodia tantum praestanda est. ex hoc apparet, si non ita vinum venit, ut degustaretur, neque acorem neque mucorem venditorem praestare debere, sed omne periculum ad emptorem pertinere: difficile autem est, ut quisquam sic emat, ut ne degustet. quare si dies degustationi adiectus non erit, quandoque degustare emptor poterit et quoad degustaverit, periculum acoris et mucoris ad venditorem pertinebit: dies enim degustationi praestitutus meliorem condicionem emptoris facit.
If wine is sold per aversionem (as a lump-sum lot), only custody is to be furnished. From this it appears that, if the wine is not sold on the terms that it be tasted, the seller need warrant neither souring nor mold, but all risk pertains to the buyer; however, it is difficult that anyone should buy in such a way as not to taste. Therefore, if no day is added for tasting, whenever the buyer is able to taste, and until he has tasted, the risk of souring and mold will pertain to the seller: for a day appointed for tasting makes the buyer’s condition better.
Vino autem per aversionem vendito finis custodiae est avehendi tempus. quod ita erit accipiendum, si adiectum tempus est: ceterum si non sit adiectum, videndum, ne infinitam custodiam non debeat venditor. et est verius secundum ea quae supra ostendimus, aut interesse, quid de tempore actum sit, aut denuntiare ei, ut tollat vinum: certe antequam ad vindemiam fuerint dolia necessaria, debet avehi vinum.
However, when wine has been sold as a whole lot (per aversionem), the limit of custody is the time for carrying it away. This is to be understood thus, if a time has been added; otherwise, if no time has been added, it must be considered, lest the seller be bound to endless custody. And it is more correct, according to what we have shown above, either to consider what was agreed concerning the time, or to give him notice to remove the wine: certainly, before the jars (dolia) are necessary for the vintage, the wine ought to be carried away.
Si per emptorem steterit, quo minus ad diem vinum tolleret, postea, nisi quod dolo malo venditoris interceptum esset, non debet ab eo praestari. si verbi gratia amphorae centum ex eo vino, quod in cella esset, venierint, si admensum est, donec admetiatur, omne periculum venditoris est, nisi id per emptorem fiat.
If by the buyer’s default it came about that he did not remove the wine by the day, thereafter, except for what was intercepted by the seller’s malicious fraud, it ought not to be made good by him. If, for example, one hundred amphorae out of that wine which was in the cellar were sold, if it is sold by measure, until it is measured out, the whole risk is the seller’s, unless that happens through the buyer.
Si vina emerim exceptis acidis et mucidis et mihi expediat acida quoque accipere, proculus ait, quamvis id emptoris causa exceptum sit, tamen acida et mucida non venisse: nam quae invitus emptor accipere non cogeretur, iniquum esse non permitti venditori vel alii ea vendere.
If I should buy wines with the acidic and the musty excepted, and it be expedient for me to take the acidic as well, Proculus says that, although that exception was made for the buyer’s sake, nevertheless the acidic and the musty did not come into the sale; for as to things which the buyer, if unwilling, would not be compelled to accept, it is inequitable that the seller or another should not be permitted to sell them.
Quod venditur, in modum agri cedere debet, nisi si id actum est, ne cederet. at quod non venit, in modum cedendum, si id ipsum actum est, ut cederet, veluti viae publicae, limites, luci qui fundum tangunt: cum vero neutrum dictum est, cedere non debet, et ideo nominatim caveri solet, ut luci, viae publicae, quae in fundo sint, totae in modum cedant.
What is sold ought to cede in the manner of the field, unless it has been agreed that it should not cede. But what does not come (into the sale) must cede in the manner, if that very thing has been agreed, that it should cede, for example public roads, boundary-paths (limites), groves (luci) which touch the estate: but when neither has been said, it ought not to cede, and therefore it is customary to provide expressly that the groves, the public roads, which are on the estate, wholly cede in the manner.
Necessario sciendum est, quando perfecta sit emptio: tunc enim sciemus, cuius periculum sit: nam perfecta emptione periculum ad emptorem respiciet. et si id quod venierit appareat quid quale quantum sit, sit et pretium, et pure venit, perfecta est emptio: quod si sub condicione res venierit, si quidem defecerit condicio, nulla est emptio, sicuti nec stipulatio: quod si exstiterit, proculus et octavenus emptoris esse periculum aiunt: idem pomponius libro nono probat. quod si pendente condicione emptor vel venditor decesserit, constat, si exstiterit condicio, heredes quoque obligatos esse quasi iam contracta emptione in praeteritum.
It must necessarily be known when the purchase is perfected: for then we shall know whose the risk is; for when the purchase is perfected, the risk will look to the buyer. And if that which has been sold is apparent as to what it is, of what sort, and how much it is, and there is a price, and it is sold purely (unconditionally), the purchase is perfected. But if the thing has been sold under a condition, then if the condition fails, there is no purchase, just as neither is there a stipulation; but if it comes to pass, Proculus and Octavenus say that the risk is the buyer’s: Pomponius likewise approves the same in Book Nine. And if, while the condition is pending, the buyer or the seller has died, it is agreed that, if the condition comes to pass, the heirs also are obligated, as though the purchase had already been contracted retroactively.
And if, while the condition is pending, the thing has been delivered, the buyer will not be able to acquire it by usucapion as purchaser. And whatever of the price has been paid will be recovered, and the fruits of the intervening time are the seller’s (just as conditional stipulations and legacies are extinguished), if, while the condition is pending, the thing has been destroyed. Indeed, if the thing exists, although rendered worse, it can be said to be the buyer’s loss.
Cum usum fructum mihi vendis, interest, utrum ius utendi fruendi, quod solum tuum sit, vendas, an vero in ipsum corpus, quod tuum sit, usum fructum mihi vendas: nam priore casu etiamsi statim morieris, nihil mihi heres tuus debebit, heredi autem meo debebitur, si tu vivis: posteriore casu heredi meo nihil debebitur, heres tuus debebit.
When you sell me a usufruct, it makes a difference whether you sell the right of using and enjoying (ius utendi fruendi), which alone is yours, or whether rather you sell me the usufruct in the very corpus, which is yours: for in the former case, even if you die immediately, your heir will owe me nothing; but it will be owed to my heir, if you live; in the latter case nothing will be owed to my heir; your heir will owe.
Si post inspectum praedium, antequam emptio contraheretur, arbores vento deiectae sunt, an hae quoque emptori tradi debeant, quaeritur: et responsum est non deberi, quia eas non emerit, cum ante, quam fundum emerit, desierint fundi esse. sed si ignoravit emptor deiectas esse arbores, venditor autem scit nec admonuit, quanti emptoris interfuerit rem aestimandam esse, si modo venit.
If, after the estate had been inspected, but before the purchase was contracted, trees were thrown down by the wind, the question is raised whether these too ought to be delivered to the buyer: and it has been answered that they are not owed, because he did not buy them, since before he bought the farm they had ceased to be of the farm. But if the buyer was unaware that the trees had been thrown down, while the seller knew and did not inform, the matter is to be assessed at the amount of the buyer’s interest, if indeed the action lies.
Si vendita insula combusta esset, cum incendium sine culpa fieri non possit, quid iuris sit? respondit, quia sine patris familias culpa fieri potest neque, si servorum neglegentia factum esset, continuo dominus in culpa erit, quam ob rem si venditor eam diligentiam adhibuisset in insula custodienda, quam debent homines frugi et diligentes praestare, si quid accidisset, nihil ad eum pertinebit.
If the tenement sold had been burned, since a conflagration cannot occur without fault, what is the law? He answered that it can occur without the fault of the paterfamilias, and that, even if it had been caused by the negligence of slaves, the master will not straightway be in fault; therefore, if the seller had applied that diligence in guarding the tenement which thrifty and diligent men ought to furnish, then, if anything had happened, nothing will pertain to him.
Si vina quae in doliis erunt venierint eaque, antequam ab emptore tollerentur, sua natura corrupta fuerint, si quidem de bonitate eorum adfirmavit venditor, tenebitur emptori: quod si nihil adfirmavit, emptoris erit periculum, quia sive non degustavit sive degustando male probavit, de se queri debet. plane si, cum intellegeret venditor non duraturam bonitatem eorum usque ad in eum diem quo tolli deberent, non admonuit emptorem, tenebitur ei, quanti eius interesset admonitum fuisse.
If wines that are in vats have been sold, and these, before they were taken away by the buyer, have by their own nature gone bad, then, if the seller affirmed their goodness, he will be liable to the buyer; but if he affirmed nothing, the risk will be the buyer’s, because whether he did not taste or by tasting judged badly, he ought to complain of himself. Plainly, if, when the seller understood that their goodness would not last up to the day on which they ought to be removed, he did not warn the buyer, he will be liable to him for as much as it was in his interest to have been warned.
Servi emptor si eum conductum rogavit, donec pretium solveret, nihil per eum servum adquirere poterit, quoniam non videtur traditus is, cuius possessio per locationem retinetur a venditore. periculum eius servi ad emptorem pertinet, quod tamen sine dolo venditoris intervenerit.
If a purchaser asked to take the slave on hire until he paid the price, he will be able to acquire nothing through that slave, since he is not regarded as having been delivered, his possession being retained by the seller by means of the lease. The risk of that slave pertains to the purchaser, provided that it has arisen without the seller’s fraud.
Illud sciendum est, cum moram emptor adhibere coepit, iam non culpam, sed dolum malum tantum praestandum a venditore. quod si per venditorem et emptorem mora fuerit, labeo quidem scribit emptori potius nocere quam venditori moram adhibitam, sed videndum est, ne posterior mora damnosa ei sit. quid enim si interpellavero venditorem et non dederit id quod emeram, deinde postea offerente illo ego non acceperim?
It must be known that, when the buyer has begun to be in delay, the seller is now answerable not for fault (culpa) but only for malicious fraud (dolus malus). But if there has been delay on the part of both the seller and the buyer, Labeo indeed writes that the delay employed injures the buyer rather than the seller; yet it must be considered, lest the later delay prove harmful to him. For what if I should interpellate the seller and he should not deliver what I had bought, and then afterward, when he offers, I do not accept?
Habitationum oneribus morte libertorum finitis emptor domus ob eam causam venditori non tenebitur, si nihil aliud convenit, quam ut habitationes secundum defuncti voluntatem super pretium libertis praestarentur.
Since the burdens of habitations are ended by the death of the freedmen, the buyer of the house will not on that account be held liable to the seller, if nothing else was agreed than that the habitations should be provided to the freedmen according to the will of the deceased, in addition to the price.
Si fuerit distractus servus, ne aliquo loci moretur, qui vendidit in ea condicione est, ut possit legem remittere, ipse romae retinere. quod et papinianus libro tertio respondit: propter domini enim, inquit, securitatem custoditur lex, ne periculum subeat.
If a slave has been sold on the condition that he not linger in some place, the seller is in this position, that he can remit the provision and keep him himself at Rome. Which also Papinian, in the third book, answered: for, says he, the law/provision is guarded for the master’s security, lest he incur peril.
Si minor viginti annis servum tibi in hoc vendiderit et tradiderit, ut eum manumitteres, nullius momenti est traditio, quamquam ea mente tradiderit, ut, cum viginti annos ipse explesset, manumitteres: non enim multum facit, quod distulit libertatis praestationem: lex quippe consilio eius quasi parum firmo restitit.
If one under twenty years has sold and delivered a slave to you for this purpose—that you manumit him—the delivery is of no effect, although he delivered with the intention that, when he himself had completed twenty years, you would manumit: for it does not much matter that he deferred the prestation of freedom; the law, in fact, resisted his counsel as if not sufficiently firm.
Cui pacto venditoris pomerio cuiuslibet civitatis interdictum est, urbe etiam interdictum esse videtur. quod quidem alias cum principum mandatis praeciperetur, etiam naturalem habet intellectum, ne scilicet qui careret minoribus, fruatur maioribus.
By whatever pact of the seller one has been interdicted from the pomerium of any city, he seems also to be interdicted from the city. And although this at other times might be prescribed together with the mandates of the emperors, it also has a natural understanding, namely, that one who is deprived of the lesser not enjoy the greater.
Si venditor ab emptore caverit, ne serva manumitteretur neve prostituatur, et aliquo facto contra quam fuerat exceptum evincatur aut libera iudicetur, et ex stipulatu poena petatur, doli exceptionem quidam obstaturam putant, sabinus non obstaturam. sed ratio faciet, ut iure non teneat stipulatio, si ne manumitteretur exceptum est: nam incredibile est de actu manumittentis ac non potius de effectu beneficii cogitatum. ceterum si ne prostituatur exceptum est, nulla ratio occurrit, cur poena peti et exigi non debeat, cum et ancillam contumelia adfecerit et venditoris affectionem, forte simul et verecundiam laeserit: etenim alias remota quoque stipulatione placuit ex vendito esse actionem, si quid emptor contra quam lege venditionis cautum est fecisset aut non fecisset.
If the seller has taken a stipulation from the buyer that the female slave not be manumitted nor prostituted, and by some act, contrary to what was stipulated, she is evicted or adjudged free, and the penalty is sought ex stipulatu, some think the defense of fraud will obstruct it, Sabinus that it will not. But reason will bring it about that the stipulation is not binding in law, if it was stipulated that she not be manumitted: for it is unbelievable that the thought was of the act of the manumitter and not rather of the effect of the benefit. However, if it was stipulated that she not be prostituted, no reason occurs why the penalty should not be sought and exacted, since he has afflicted the maidservant with contumely and has injured the seller’s affection, perhaps also his modesty; for indeed otherwise, even with the stipulation removed, it has been decided that there is an action ex vendito, if the buyer had done or had not done anything contrary to what was provided by the law of the sale.
Nobis aliquando placebat non alias ex vendito propter poenam homini irrogatam agi posse, quam si pecuniae ratione venditoris interesset, veluti quod poenam promisisset: ceterum viro bono non convenire credere venditoris interesse, quod animo saevientis satisfactum non fuisset. sed in contrarium me vocat sabini sententia, qui utiliter agi ideo arbitratus est, quoniam hoc minoris homo venisse videatur.
It once pleased us to hold that the action from sale could not otherwise be brought on account of a penalty imposed upon a man, unless, in a pecuniary respect, it was the seller’s interest—for example, because he had promised a penalty; moreover, it does not befit a good man to believe it is the seller’s interest that satisfaction had not been given to a raging mind. But Sabinus’s opinion calls me to the contrary: he judged that one could usefully bring the action for this reason, since on this account the man would seem to have been sold for less.
Servus ea lege veniit, ne in italia esset: quod si aliter factum esset, convenit citra stipulationem, ut poenam praestaret emptor. vix est, ut eo nomine vindictae ratione venditor agere possit, acturus utiliter, si non servata lege in poenam quam alii promisit inciderit. huic consequens erit, ut hactenus agere possit, quatenus alii praestare cogitur: quidquid enim excedit, poena, non rei persecutio est.
A slave was sold on this condition, that he should not be in Italy; but if it were done otherwise, it was agreed, without stipulation, that the buyer would render a penalty. It is scarcely the case that on that score the seller can sue by way of punishment; he will bring a useful action if, the condition not having been observed, he has fallen into the penalty which he had promised to another. A consequence of this will be that he can sue only thus far, in so far as he is compelled to render to the other; for whatever exceeds is a penalty, not a pursuit of the thing.
But if it was agreed, so that he not be exported for punishment’s sake, an action also will properly be brought on the ground of affection. Nor do these seem to be contrary to one another, since it is in a man’s interest that a man be treated with beneficence; indeed, indignation at a penalty not imposed contains only harshness.
Quaesitum est, si quis proprium servum vendidisset et ut manumitteretur intra certum tempus, praecepisset ac postea mutasset voluntatem et emptor nihilo minus manumisisset, an aliquam eo nomine actionem haberet. dixi ex vendito actionem manumisso servo vel mutata venditoris voluntate evanuisse.
It was asked, if someone had sold his own slave and had prescribed that he be manumitted within a fixed time, and afterwards had changed his will, and the buyer had nonetheless manumitted, whether he would have any action on that account. I said that the action ex vendito had disappeared, the slave having been manumitted or the seller’s will having been changed.
Titius servum vendidit ea lege, ut, si romae moratus esset, manus inicere liceret: emptor alii eadem lege vendidit: servus fugit a secundo emptore et romae moratur: quaero, an sit manus iniectio et cui. respondi: in fugitivo non est dubitandum nihil contra legem factum videri, quia nec domino auferre se potest nec qui in fuga est ibi moratur. quod si ex voluntate secundo emptoris contra legem moratus sit, potior habendus est qui auctor fuit legis, et posterior magis admonendi emptoris et liberandi se eandem legem repetierit nec poterit aliquo modo auferre legem sui venditoris cuius condicio exstitit: nam et si poenam promisisset, tenetur, licet ipse quoque stipulatus esset: sed in poena promissa duae actiones sunt, manus autem iniectio in servum competit.
Titius sold a slave on this law, that, if he stayed at Rome, it should be permitted to lay on hands; the buyer sold him to another on the same law; the slave fled from the second buyer and stays at Rome; I inquire whether there is manus iniectio and for whom. I answered: as to a fugitive there is no doubt that nothing seems to have been done against the law, because he can neither remove himself from his master nor does one who is in flight “stay” there. But if, with the will of the second buyer, he has stayed against the law, preference must be given to the one who was the author of the law, and the later one, rather, by admonishing his buyer and freeing himself, will invoke the same law again, nor will he be able in any way to take away the law of his own seller, whose condition has arisen: for even if he had promised a penalty, he is bound, although he too had stipulated; but in the penalty promised there are two actions, whereas manus iniectio is competent against the slave.
But if the prior sold on this condition, that the prostituted woman be free, and the later, that it be permitted to apply manus iniectio (seizure), liberty is stronger than manus iniectio. Clearly, if the earlier term contains manus iniectio and the later liberty, it will be said more favorably that she will be free, since each condition is added for the sake of the mancipium; and just as manus iniectio, so liberty removes that injury.
Cum venderet pamphilam et stichum, venditioni inseruit pactum conventum, uti ne eadem mancipia pamphila et stichus, quos minorato pretio vendidit, alterius servitutem quam seii paterentur post mortemque eius in libertate morarentur: quaesitum est, an haec mancipia, de quibus inter emptorem et venditorem convenit, post mortem emptoris iure ipso liberata sint. respondit secundum constitutionem divi hadriani super hoc prolatam pamphilam et stichum, de quibus quaereretur, si manumissi non sint, liberos non esse. claudius: divus marcus ex lege dicta libertatis in vendendo quamvis non manumissos fore liberos in semenstribus constituit, licet in mortis tempus emptoris distulit venditor libertatem.
When he was selling Pamphila and Stichus, he inserted into the sale a covenanted pact, to the effect that these same slaves, Pamphila and Stichus, whom he sold at a reduced price, should not endure the servitude of anyone other than Seius, and that after his death they should remain in freedom. The question was asked whether these slaves, about whom there was agreement between buyer and seller, were freed by the law itself after the death of the buyer. He replied that, according to the constitution of the deified Hadrian promulgated on this point, Pamphila and Stichus, about whom inquiry was made, if they have not been manumitted, are not free. Claudius: the deified Marcus, on the basis of the law so called “of liberty in selling,” established that, although not manumitted, they would be free within six months, although the seller had deferred the liberty to the time of the buyer’s death.
Origo emendi vendendique a permutationibus coepit. olim enim non ita erat nummus neque aliud merx, aliud pretium vocabatur, sed unusquisque secundum necessitatem temporum ac rerum utilibus inutilia permutabat, quando plerumque evenit, ut quod alteri superest alteri desit. sed quia non semper nec facile concurrebat, ut, cum tu haberes quod ego desiderarem, invicem haberem quod tu accipere velles, electa materia est, cuius publica ac perpetua aestimatio difficultatibus permutationum aequalitate quantitatis subveniret.
The origin of buying and selling began from exchanges. For once upon a time money was not as it is, nor was one thing called merchandise and another price, but each person, according to the necessity of the times, exchanged useless things for useful, since it very often happens that what is surplus to one is lacking to another. But because it did not always nor easily come together that, when you had what I desired, I in turn had what you would wish to receive, a material was chosen whose public and perpetual valuation might relieve the difficulties of exchanges by an equality of quantity.
Sed an sine nummis venditio dici hodieque possit, dubitatur, veluti si ego togam dedi, ut tunicam acciperem. sabinus et cassius esse emptionem et venditionem putant: nerva et proculus permutationem, non emptionem hoc esse. sabinus homero teste utitur, qui exercitum graecorum aere ferro hominibusque vinum emere refert, illis versibus: enven ar' oinizonto karykomowntes axaioi alloi men xalkw, alloi d' aivwni sidyrw, alloi de hrinois, alloi d' autysi boessi, alloi d' andrapodessin.
but whether a sale can even today be said to exist without coins is disputed, as for example if I gave a toga in order to receive a tunic. sabinus and cassius think there is a purchase and a sale; nerva and proculus that this is an exchange (permutation), not a purchase. sabinus uses homer as witness, who reports that the army of the greeks bought wine with bronze, iron, and human beings, in these verses: “and there the long‑haired achaeans were buying wine, some with bronze, others with gleaming iron, others with hides, others with their very cattle, others with slaves.”
but these verses seem to signify permutation (barter), not emption (purchase), just like those: env' aute glaukw kronidys frenas eceleto zeus, hos pros tudeidyn diomydea teuxe ameiben. but rather, in support of this opinion, that would be cited which the same poet says elsewhere: priato kteatessin heoisin. but the opinion of nerva and proculus is truer: for just as to sell is one thing, to buy another; one man is the buyer (emptor), another the seller (venditor); so price (pretium) is one thing, merchandise (merx) another: which in permutation cannot be discerned—who is the buyer, who the seller.
Sed celsus filius ait hominem liberum scientem te emere non posse nec cuiuscumque rei si scias alienationem esse: ut sacra et religiosa loca aut quorum commercium non sit, ut publica, quae non in pecunia populi, sed in publico usu habeatur, ut est campus martius.
But Celsus the son says that you cannot buy a free man when you know him to be free, nor any thing whatsoever if you know it to be inalienable: such as sacred and religious places, or those whose commerce is not permitted, such as public things, which are held not in the money of the people but in public use, as is the Campus Martius.
Si fundus annua bima trima die ea lege venisset, ut, si in diem statutum pecunia soluta non esset, fundus inemptus foret et ut, si interim emptor fundum coluerit fructusque ex eo perceperit, inempto eo facto restituerentur et ut, quanti minoris postea alii venisset, ut id emptor venditori praestaret: ad diem pecunia non soluta placet venditori ex vendito eo nomine actionem esse. nec conturbari debemus, quod inempto fundo facto dicatur actionem ex vendito futuram esse: in emptis enim et venditis potius id quod actum, quam id quod dictum sit sequendum est, et cum lege id dictum sit, apparet hoc dumtaxat actum esse, ne venditor emptori pecunia ad diem non soluta obligatus esset, non ut omnis obligatio empti et venditi utrique solveretur.
If an estate had come for sale on a one-, two-, or three-year day on this condition, that, if by the appointed day the money were not paid, the estate should be as unbought; and that, if in the meantime the buyer had cultivated the estate and taken fruits from it, upon its being made as unbought they should be restored; and that, for however much less it should afterwards come to another, the buyer should make that good to the seller: if by the day the money is not paid, it is the accepted view that the seller has an action ex vendito on that ground. Nor ought we to be disturbed because, when the estate is made as unbought, it is said that an action ex vendito will arise: for in purchases and sales one must follow rather what was transacted than what was merely spoken; and since this was said by way of a lex, it appears that only this was transacted, that the seller should not be bound to the buyer if the money was not paid by the day, not that every obligation of purchase and sale for both parties should be dissolved.
Haec venditio servi " si rationes domini computasset arbitrio" condicionalis est: condicionales autem venditiones tunc perficiuntur, cum impleta fuerit condicio. sed utrum haec est venditionis condicio, si ipse dominus putasset suo arbitrio, an vero si arbitrio viri boni? nam si arbitrium domini accipiamus, venditio nulla est, quemadmodum si quis ita vendiderit, si voluerit, vel stipulanti sic spondeat " si voluero, decem dabo": neque enim debet in arbitrium rei conferri, an sit obstrictus.
This sale of a slave, " if he had computed the master’s accounts by discretion," is conditional: and conditional sales are completed when the condition has been fulfilled. But is this the condition of the sale, that the master himself should have thought so by his own discretion, or rather at the discretion of a good man? For if we take it as the master’s discretion, the sale is null, just as if someone had sold thus, if he should wish, or should promise to a stipulator thus " if I shall have wished, I will give ten": for one ought not to refer to the discretion of the party whether he is bound.
It has therefore seemed preferable to the ancients that this be deemed referred to the arbitrament of a good man rather than to that of the master. If, accordingly, he was able to receive the accounts and did not receive them, or he did receive them but pretends he did not receive them, the condition of the purchase is fulfilled, and the seller can be proceeded against under the action ex empto.
Nec emptio nec venditio sine re quae veneat potest intellegi. et tamen fructus et partus futuri recte ementur, ut, cum editus esset partus, iam tunc, cum contractum esset negotium, venditio facta intellegatur: sed si id egerit venditor, ne nascatur aut fiant, ex empto agi posse.
Neither purchase nor sale can be understood without a thing that is being sold. And yet future fruits and offspring are rightly bought, so that, when the offspring has been brought forth, the sale is understood to have been made already then, at the time when the transaction was contracted: but if the seller should act to prevent its being born or their coming into being, an action ex empto can be brought.
Aliquando tamen et sine re venditio intellegitur, veluti cum quasi alea emitur. quod fit, cum captum piscium vel avium vel missilium emitur: emptio enim contrahitur etiam si nihil inciderit, quia spei emptio est: et quod missilium nomine eo casu captum est si evictum fuerit, nulla eo nomine ex empto obligatio contrahitur, quia id actum intellegitur.
Yet sometimes a sale is understood even without a thing, as when, as it were, a gamble is bought. This happens when the catch of fish or of birds or of missilia (things thrown to the crowd) is bought: for the purchase is contracted even if nothing turns up, because it is a purchase of a hope; and if what in that case was caught under the name of missilia should be evicted, no obligation from sale is contracted on that account, because that is understood to have been the agreement.
In venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentient sive in pretio sive in quo alio, emptio imperfecta est. si igitur ego me fundum emere putarem cornelianum, tu mihi te vendere sempronianum putasti, quia in corpore dissensimus, emptio nulla est. idem est, si ego me stichum, tu pamphilum absentem vendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem.
In sales and purchases it is plain that consent ought to intervene; however, if they disagree either about the purchase itself or about the price or about any other matter, the purchase is imperfect. Therefore, if I supposed that I was buying the Cornelian estate, while you supposed that you were selling me the Sempronian, because we disagreed as to the corpus (the specific thing), there is no purchase. The same holds if I supposed that I was buying Stichus, and you supposed that you were selling Pamphilus, who was absent: for when there is disagreement as to the corpus, it is apparent that there is no purchase.
Inde quaeritur, si in ipso corpore non erratur, sed in substantia error sit, ut puta si acetum pro vino veneat, aes pro auro vel plumbum pro argento vel quid aliud argento simile, an emptio et venditio sit. Marcellus scripsit libro sexto digestorum emptionem esse et venditionem, quia in corpus consensum est, etsi in materia sit erratum. ego in vino quidem consentio, quia eadem prope ousia est, si modo vinum acuit: ceterum si vinum non acuit, sed ab initio acetum fuit, ut embamma, aliud pro alio venisse videtur.
Hence the question is raised, if there is no mistake about the very body, but the mistake is in the substance, for instance if vinegar is sold instead of wine, bronze for gold, or lead for silver, or something else similar to silver, whether there is a purchase and sale. Marcellus wrote in the sixth book of the Digest that there is a purchase and sale, because there was consent as to the body, even if there was an error in the material. I for my part agree in the case of wine, because it is nearly the same ousia, provided only that the wine has turned sour; but if the wine has not turned sour, but from the beginning it was vinegar, as a condiment, it seems that one thing has been sold for another.
In huiusmodi autem quaestionibus personae ementium et vendentium spectari debent, non eorum, quibus adquiritur ex eo contractu actio: nam si servus meus vel filius qui in mea potestate est me praesente suo nomine emat, non est quaerendum, quid ego existimem, sed quid ille qui contrahit.
However, in questions of this sort, the persons of the buyers and sellers ought to be regarded, not those of the ones for whom an action is acquired from that contract: for if my slave or my son who is in my power, with me present, buys in his own name, it is not to be inquired what I think, but what he who contracts [thinks].
Quid tamen dicemus, si in materia et qualitate ambo errarent? ut puta si et ego me vendere aurum putarem et tu emere, cum aes esset? ut puta coheredes viriolam, quae aurea dicebatur, pretio exquisito uni heredi vendidissent eaque inventa esset magna ex parte aenea?
What, however, shall we say if in the material and the quality both were in error? for instance, if both I supposed that I was selling gold and you that you were buying it, when it was bronze? for instance, the coheirs had sold, at a price carefully ascertained, to one heir a little bracelet which was said to be golden, and it was found to be for the most part of bronze?
Si rem meam mihi ignoranti vendideris et iussu meo alii tradideris, non putat pomponius dominium meum transire, quoniam non hoc mihi propositum fuit, sed quasi tuum dominium ad eum transire: et ideo etiam si donaturus mihi rem meam iussu meo alii tradas, idem dicendum erit.
If you sell my thing to me while I am unaware, and at my order deliver it to another, Pomponius does not think that my dominion passes, since this was not my purpose, but as though your dominion passes to him; and therefore even if, being about to make me a gift, you, at my order, deliver my thing to another, the same must be said.
Si servus domini iussu in demonstrandis finibus agri venditi vel errore vel dolo plus demonstaverit, id tamen demonstratum accipi oportet, quod dominus senserit: et idem alfenus scripsit de vacua possessione per servum tradita.
If a slave, by his master’s order, in demonstrating the boundaries of the land sold, has shown more either by error or by dolus, nevertheless that is what ought to be accepted as demonstrated which the master intended; and the same Alfenus wrote the same about vacant possession delivered through a slave.
Sabinus respondit, si quam rem nobis fieri velimus etiam, veluti statuam vel vas aliquod seu vestem, ut nihil aliud quam pecuniam daremus, emptionem videri, nec posse ullam locationem esse, ubi corpus ipsum non detur ab eo cui id fieret: aliter atque si aream darem, ubi insulam aedificares, quoniam tunc a me substantia proficiscitur.
Sabinus answered that, if we should wish some thing to be made for us, for example a statue or some vessel or a garment, on condition that we give nothing other than money, it is considered a purchase, and that there can be no letting where the corpus itself is not supplied by the person for whom it is being made; otherwise than if I were to give a plot on which you build a tenement, since then the substance proceeds from me.
Si sciens emam ab eo cui bonis interdictum sit vel cui tempus ad deliberandum de hereditate ita datum sit, ut ei deminuendi potestas non sit, dominus non ero: dissimiliter atque si a debitore sciens creditorem fraudari emero.
If I knowingly buy from one who has been interdicted from his goods, or from one to whom time to deliberate about an inheritance has been granted in such a way that he has no power to diminish it, I shall not be owner: unlike the case where I knowingly buy from a debtor with a creditor being defrauded.
Quotiens servus venit, non cum peculio distrahitur: et ideo sive non sit exceptum, sive exceptum sit, ne cum peculio veneat, non cum peculio distractus videtur. unde si qua res fuerit peculiaris a servo subrepta, condici potest videlicet quasi furtiva: hoc ita, si res ad emptorem pervenit.
Whenever a slave is sold, he is not sold along with the peculium; and therefore, whether it has not been excepted, or it has been excepted that he not be sold with the peculium, he is considered not to have been sold with the peculium. Whence, if any thing belonging to the peculium has been filched by the slave, a condictio may be brought, namely as for a stolen thing: this is so, if the thing has come to the purchaser.
Cum in lege venditionis ita sit scriptum: " flumina stillicidia uti nunc sunt, ut ita sint", nec additur, quae flumina vel stillicidia, primum spectari oportet, quid acti sit: si non id appareat, tunc id accipitur quod venditori nocet: ambigua enim oratio est.
When in the law of the sale it is written thus: " flumina, stillicidia, as they are now, so let them be", and it is not added which watercourses or eavesdrips, first it ought to be considered what was transacted: if that does not appear, then that interpretation is accepted which harms the seller; for the wording is ambiguous.
Si in emptione fundi dictum sit accedere stichum servum neque intellegatur, quis ex pluribus accesserit, cum de alio emptor, de alio venditor senserit, nihilo minus fundi venditionem valere constat: sed labeo ait eum stichum deberi quem venditor intellexerit. nec refert, quanti sit accessio, sive plus in ea sit quam in ipsa re cui accedat an minus: plerasque enim res aliquando propter accessiones emimus, sicuti cum domus propter marmora et statuas et tabulas pictas ematur.
If in the purchase of an estate it is said that the slave Stichus is to be added as an accession, and it is not understood which one out of several has been added—since the buyer had one in mind and the seller another—nonetheless it is agreed that the sale of the estate is valid; but Labeo says that that Stichus is owed whom the seller understood. Nor does it matter what the value of the accession is, whether there is more in it than in the very thing to which it is attached, or less: for we sometimes buy very many things on account of the accessions, as when a house is bought on account of marbles and statues and painted panels.
Item si et emptor et venditor scit furtivum esse quod venit, a neutra parte obligatio contrahitur: si emptor solus scit, non obligabitur venditor nec tamen ex vendito quicquam consequitur, nisi ultro quod convenerit praestet: quod si venditor scit, emptor ignoravit, utrinque obligatio contrahitur, et ita pomponius quoque scribit.
Likewise, if both buyer and seller know that what is being sold is stolen, no obligation is contracted on either side: if the buyer alone knows, the seller will not be bound, nor, however, does he obtain anything from the sale, unless he of his own accord provides what was agreed; but if the seller knows and the buyer was ignorant, an obligation is contracted on both sides, and Pomponius also writes thus.
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 solum arbitrio eius commissum sit, ut quem voluisset emptum haberet, non et illud, an emptum haberet.
If a purchase has been made in this way: "stichus or pamphilus is bought for me," it is in the power of the seller which one he wishes to give, as in stipulations; but if one has died, the one who survives must be given: and therefore the peril of the former falls upon the seller, that of the latter upon the buyer. But even if they have died together, the price will be owed: for one assuredly lived under the buyer’s peril. The same must be said also if it was the buyer’s arbitrament which he wished to have, provided only this was committed to his arbitrament—that he should have as bought whichever he wished—and not also the question whether he would have a purchase at all.
Veneni mali quidam putant non contrahi emptionem, quia nec societas aut mandatum flagitiosae rei ullas vires habet: quae sententia potest sane vera videri de his quae nullo modo adiectione alterius materiae usu nobis esse possunt: de his vero quae mixta aliis materiis adeo nocendi naturam deponunt, ut ex his antidoti et alia quaedam salubria medicamenta conficiantur, aliud dici potest.
Some think that a purchase of evil poison is not contracted, because neither a partnership nor a mandate of a flagitious matter has any force: which opinion can indeed seem true concerning those things which in no way, by the addition of another material, can be of use to us: but concerning those which, when mixed with other materials, so lay aside the nature of harming that from them antidotes and certain other salubrious medicaments are composed, something else can be said.
Si quis amico peregre eunti mandaverit, ut fugitivum suum quaerat et si invenerit vendat, nec ipse contra senatus consultum committit, quia non vendidit, neque amicus eius, quia praesentem vendit: emptor quoque, qui praesentem emit, recte negotium gerere intellegitur.
If someone has given a mandate to a friend going abroad, that he should seek his fugitive and, if he finds him, sell him, neither does he himself commit anything against the senatus‑consultum, because he did not sell, nor does his friend, because he sells one who is present: the buyer too, who buys one who is present, is understood to be conducting the transaction rightly.
Si res vendita per furtum perierit, prius animadvertendum erit, quid inter eos de custodia rei convenerat: si nihil appareat convenisse, talis custodia desideranda est a venditore, qualem bonus pater familias suis rebus adhibet: quam si praestiterit et tamen rem perdidit, securus esse debet, ut tamen scilicet vindicationem rei et condictionem exhibeat emptori. unde videbimus in personam eius, qui alienam rem vendiderit: cum is nullam vindicationem aut condictionem habere possit, ob id ipsum damnandus est, quia, si suam rem vendidisset, potuisset eas actiones ad emptorem transferre.
If the thing sold has perished through theft, first it must be observed what was agreed between them concerning the custody of the thing: if nothing appears to have been agreed, such custody is to be required of the seller as a good paterfamilias applies to his own goods. If he has provided that and yet lost the thing, he ought to be secure from liability, provided, of course, that he furnishes to the buyer the vindicatio of the thing and the condictio. Whence we shall consider the case of the person who has sold another’s property: since he can have no vindicatio or condictio, for that very reason he is to be condemned, because, if he had sold his own property, he could have transferred those actions to the buyer.
In his quae pondere numero mensurave constant, veluti frumento vino oleo argento, modo ea servantur quae in ceteris, ut simul atque de pretio convenerit, videatur perfecta venditio, modo ut, etiamsi de pretio convenerit, non tamen aliter videatur perfecta venditio, quam si admensa adpensa adnumeratave sint. nam si omne vinum vel oleum vel frumentum vel argentum quantumcumque esset uno pretio venierit, idem iuris est quod in ceteris rebus. quod si vinum ita venierit, ut in singulas amphoras, item oleum, ut in singulos metretas, item frumentum, ut in singulos modios, item argentum, ut in singulas libras certum pretium diceretur, quaeritur, quando videatur emptio perfici.
In those things which consist by weight, number, or measure—such as grain, wine, oil, silver—sometimes the same rules are observed as in other cases, so that as soon as it has been agreed upon concerning the price, the sale is seen as perfected; sometimes, however, even if the price has been agreed, the sale is not otherwise seen as perfected than if they have been measured, weighed, or counted. For if all the wine or oil or grain or silver, whatever the amount, has been sold for a single price, the same law applies as in other things. But if the wine has been sold in such a way that a fixed price is stated for each amphora, likewise the oil for each metretes, likewise the grain for each modius, likewise the silver for each pound, the question arises when the purchase is seen to be perfected.
Similarly, of course, the question is asked also concerning those things which consist by number, if a price has been set according to the number of the bodies. Sabinus and Cassius judge the purchase to be perfected when they have been counted, measured, or weighed, because the sale seems to be made as if under this condition: that for each individual metretes or for each individual modius that you shall have measured, or for each individual pound that you shall have weighed, or for each individual body that you shall have counted.
Sed et si ex doleario pars vini venierit, veluti metretae centum, verissimum est ( quod et constare videtur) antequam admetiatur, omne periculum ad venditorem pertinere: nec interest, unum pretium omnium centum metretarum in semel dictum sit an in singulos eos.
But also, if from the vat-house (doliarium) a part of the wine is sold, for example one hundred metretae, it is most true (and indeed seems to be settled) that, before it is measured out, all risk pertains to the seller; nor does it matter whether one price for all the hundred metretae was stated at once or for each of them individually.
Si quis fundum iure hereditario sibi delatum ita vendidisset: " erit tibi emptus tanti, quanti a testatore emptus est", mox inveniatur non emptus, sed donatus testatori, videtur quasi sine pretio facta venditio, ideoque similis erit sub condicione factae venditioni, quae nulla est, si condicio defecerit.
If someone had sold a landed estate that had devolved upon him by hereditary right in such terms: “it shall be bought by you for as much as it was bought by the testator,” and thereafter it is found not to have been bought but donated to the testator, the sale appears as if made without a price; and therefore it will be similar to a sale made under a condition, which is null if the condition fails.
Si quis donationis causa minoris vendat, venditio valet: totiens enim dicimus in totum venditionem non valere, quotiens universa venditio donationis causa facta est: quotiens vero viliore pretio res donationis causa distrahitur, dubium non est venditionem valere. hoc inter ceteros: inter virum vero et uxorem donationis causa venditio facta pretio viliore nullius momenti est.
If anyone, for the sake of a donation, sells for less, the sale is valid: for we say that a sale is not valid in its entirety only so often as the whole sale has been made for the sake of a donation: but whenever a thing is disposed of for the sake of a donation at a cheaper price, there is no doubt that the sale is valid. This holds among others: but between husband and wife, a sale made for the sake of a donation at a cheaper price is of no moment.
Verisimile est eum, qui fructum olivae pendentis vendidisset et stipulatus est decem pondo olei quod natum esset, pretium constituisse ex eo quod natum esset usque ad decem pondo olei: idcirco solis quinque collectis non amplius emptor petere potest quam quinque pondo olei, quae collecta essent, a plerisque responsum est.
It is plausible that he who had sold the fruit of olives hanging on the tree and stipulated for 10 pounds of oil that should be produced, constituted the price from that which would be produced up to 10 pounds of oil: therefore, with only 5 having been collected, the buyer cannot demand more than 5 pounds of oil, namely those which had been collected, as most have answered.
Qui fundum vendebat, in lege ita dixerat, ut emptor in diebus triginta proximis fundum metiretur et de modo renuntiaret, et si ante eam diem non renuntiasset, ut venditoris fides soluta esset: emptor intra diem mensurae quo minorem modum esse credidit renuntiavit et pecuniam pro eo accepit: postea eum fundum vendidit et cum ipse emptori suo admetiretur, multo minorem modum agri quam putaverat invenit: quaerebat, an id quod minor is esset consequi a suo venditore posset. respondit interesse, quemadmodum lex diceretur: nam si ita dictum esset, ut emptor diebus triginta proximis fundum metiatur et domino renuntiet, quanto modus agri minor sit, quo post diem trigensimum renuntiasset, nihil ei profuturum: sed si ita pactum esset, ut emptor in diebus proximis fundum metiatur et de modo agri renuntiet, etsi in diebus triginta renuntiasset minorem modum agri esse, quamvis multis post annis posse eum quo minor is modus agri fuisset repetere.
He who was selling a farm (fundus) had thus spoken in the stipulation (lex), that the buyer should measure the farm within the next thirty days and give notice about the measure, and that, if he had not given notice before that day, the seller’s good faith (obligation) should be released. The buyer, within the day for the measurement, gave notice that he believed the measure (modus) to be smaller and received money on that account. Afterwards he sold that farm, and when he himself was measuring it for his own buyer, he found the measure of the land much smaller than he had supposed. He asked whether he could obtain from his own seller what the shortfall was. He answered that it matters how the stipulation (lex) is worded: for if it had been said thus, that the buyer should, within the next thirty days, measure the farm and give notice to the owner how much the measure of the land was less, anything of which he had given notice after the thirtieth day would profit him nothing; but if it had been agreed (pactum) thus, that the buyer should, within the next days, measure the farm and give notice about the measure of the land, then even if within thirty days he had given notice that the measure of the land was smaller, he could, although many years later, recover whatever the measure of the land had been less by.
Fundi venditor frumenta manu sata receperat: in eo fundo ex stipula seges erat enata: quaesitum est, an pacto contineretur. respondit maxime referre, quid est actum: ceterum secundum verba non esse actum, quod ex stipula nasceretur, non magis quam si quid ex sacco saccarii cecidisset aut ex eo quod avibus ex aere cecidisset natum esset.
the seller of an estate had reserved the grain sown by hand: on that estate a crop had sprung from the stubble: it was asked whether it was contained in the pact. he responded that it especially matters what was transacted; however, according to the words, it was not transacted that what should arise from stubble be included, any more than if something had fallen from the bag of a sack-carrier (porter) or had sprung from what birds had dropped from the air.
Cum ab eo, qui fundum alii obligatum habebat, quidam sic emptum rogasset, ut esset is sibi emptus, si eum liberasset, dummodo ante kalendas iulias liberaret, quaesitum est, an utiliter agere possit ex empto in hoc, ut venditor eum liberaret. respondit: videamus, quid inter ementem et vendentem actum sit. nam si id actum est, ut omni modo intra kalendas iulias venditor fundum liberaret, ex empto erit actio, ut liberet, nec sub condicione emptio facta intellegetur, veluti si hoc modo emptor interrogaverit: " erit mihi fundus emptus ita, ut eum intra kalendas iulias liberes", vel " ita ut eum intra kalendas a titio redimas". si vero sub condicione facta emptio est, non poterit agi, ut condicio impleatur.
When someone had asked to buy from a person who had an estate obligated to another on these terms, that it be bought for him if he freed it, provided that he freed it before the Kalends of July, the question was raised whether he can effectively bring an action ex empto to this effect, that the seller free it. He answered: let us see what was transacted between the buyer and the seller. For if it was agreed that in any event the seller would free the estate before the Kalends of July, there will be an action ex empto to have him free it, nor will the purchase be understood to have been made under a condition, for example if in this way the buyer asked: " the estate shall be bought for me thus, that you free it before the Kalends of July", or " thus, that you redeem it from Titius before the Kalends". But if the purchase was made under a condition, it will not be possible to sue to have the condition fulfilled.
Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant, veluti si dicat servum speciosum, domum bene aedificatam: at si dixerit hominem litteratum vel artificem, praestare debet: nam hoc ipso pluris vendit.
Those things which are said, for the sake of commendation, in sales, if they are openly apparent, do not obligate the seller, as if he says a slave is handsome, or a house well built: but if he should say that the person is lettered or an artificer, he must warrant it: for by this very thing he sells for a higher price.
Quaedam etiam pollicitationes venditorem non obligant, si ita in promptu res sit, ut eam emptor non ignoraverit, veluti si quis hominem luminibus effossis emat et de sanitate stipuletur: nam de cetera parte corporis potius stipulatus videtur, quam de eo, in quo se ipse decipiebat.
Certain promises also do not bind the seller, if the matter is so in plain view that the buyer was not ignorant of it, for example if someone buys a man with his eyes gouged out and stipulates for soundness: for he is deemed to have stipulated rather concerning the rest of the body than concerning that in which he was himself deceiving himself.
Labeo libro posteriorum scribit, si vestimenta interpola quis pro novis emerit, trebatio placere ita emptori praestandum quod interest, si ignorans interpola emerit. quam sententiam et pomponius probat, in qua et iulianus est, qui ait, si quidem ignorabat venditor, ipsius rei nomine teneri, si sciebat, etiam damni quod ex eo contingit: quemadmodum si vas aurichalcum pro auro vendidisset ignorans, tenetur, ut aurum quod vendidit praestet.
Labeo writes in the book of the Later, that if someone has bought patched-up garments as new, Trebatius holds that what his interest amounts to must thus be made good to the buyer, if he bought the patched-up unknowingly. Which opinion Pomponius also approves, and Julian is of the same view, who says that, if indeed the seller was unaware, he is liable under the head of the thing itself; if he knew, also for the loss that ensues therefrom: just as if he had sold a vessel of orichalcum as gold, being unaware, he is liable, so that he provide the gold which he sold.
Non licet ex officio, quod administrat quis, emere quid vel per se vel per aliam personam: alioquin non tantum rem amittit, sed et in quadruplum convenitur secundum constitutionem severi et antonini: et hoc ad procuratorem quoque caesaris pertinet. sed hoc ita se habet, nisi specialiter quibusdam hoc concessum est.
It is not permitted, by virtue of the office which one administers, to purchase anything either by himself or through another person: otherwise he not only loses the thing, but is also proceeded against for fourfold according to the constitution of Severus and Antoninus; and this pertains also to the procurator of Caesar. But this holds thus, unless this has been specially granted to certain persons.
Labeo scribit, si mihi bibliothecam ita vendideris, si decuriones campani locum mihi vendidissent, in quo eam ponerem, et per me stet, quo minus id a campanis impetrem, non esse dubitandum, quin praescriptis verbis agi possit. ego etiam ex vendito agi posse puto quasi impleta condicione, cum per emptorem stet, quo minus impleatur.
Labeo writes that, if you sold me a library on this condition—that the Campanian decurions had sold me a place in which I might set it—and it is owing to me that I fail to obtain that from the Campanians, there is no doubt that one may proceed by the action on the prescribed words. I also think that one may sue ex vendito as if the condition were fulfilled, when it stands by the buyer that it not be fulfilled.
Litora, quae fundo vendito coniuncta sunt, in modum non computantur, quia nullius sunt, sed iure gentium omnibus vacant: nec viae publicae aut loca religiosa vel sacra. itaque ut proficiant venditori, caveri solet, ut viae, item litora et loca publica in modum cedant.
The shores which are conjoined to a sold estate are not computed in the measure, because they belong to no one, but by the law of nations lie open to all; nor are public roads or religious or sacred places. Therefore, in order that they may profit the seller, it is customary to stipulate that the roads, likewise the shores and public places, be counted into the measure.
Senatus censuit, ne quis domum villamve dirueret, quo plus sibi adquireretur neve quis negotiandi causa eorum quid emeret venderetve: poena in eum, qui adversus senatus consultum fecisset, constituta est, ut duplum eius quanti emisset in aerarium inferre cogeretur, in eum vero, qui vendidisset, ut irrita fieret venditio. plane si mihi pretium solveris, cum tu duplum aerario debeas, repetes a me: quod a mea parte irrita facta est venditio. nec solum huic senatus consulto locus erit, si quis suam villam vel domum, sed et si alienam vendiderit.
The Senate decreed that no one should demolish a house or a villa, in order that more might be acquired for himself, nor that anyone, for the sake of business, should buy or sell anything of them: a penalty was established for him who had acted against the senatorial decree, that he be compelled to pay into the treasury double the amount for which he had purchased; but for him who had sold, that the sale be null. Plainly, if you pay the price to me, while you owe double to the treasury, you will recover it from me, because on my side the sale has been made void. And this senatorial decree will have place not only if someone sells his own villa or house, but also if he has sold another’s.
Ut res emptoris fiat, nihil interest, utrum solutum sit pretium an eo nomine fideiussor datus sit. quod autem de fideiussore diximus, plenius acceptum est, qualibet ratione si venditori de pretio satisfactum est, veluti expromissore aut pignore dato, proinde sit, ac si pretium solutum esset.
For the thing to become the buyer’s, it makes no difference whether the price has been paid or a fideiussor (guarantor) has been furnished for that purpose. Moreover, what we have said about the fideiussor is taken more broadly: if in any way the seller has been satisfied concerning the price—for example, by an expromissor or by a pledge (pignus) being given—it is the same as if the price had been paid.
Domum emi, cum eam et ego et venditor combustam ignoraremus. nerva sabinus cassius nihil venisse, quamvis area maneat, pecuniamque solutam condici posse aiunt. sed si pars domus maneret, neratius ait hac quaestione multum interesse, quanta pars domus incendio consumpta permaneat, ut, si quidem amplior domus pars exusta est, non compellatur emptor perficere emptionem, sed etiam quod forte solutum ab eo est repetet: sin vero vel dimidia pars vel minor quam dimidia exusta fuerit, tunc coartandus est emptor venditionem adimplere aestimatione viri boni arbitratu habita, ut, quod ex pretio propter incendium decrescere fuerit inventum, ab huius praestatione liberetur.
I bought a house, when both I and the seller were unaware that it had been burned. Nerva, Sabinus, and Cassius say that nothing has been sold, although the site remains, and that the money paid can be reclaimed by condictio. But if a part of the house remained, Neratius says that in this question it matters much how great a part of the house has remained after being consumed by fire: that, if indeed the greater part of the house has been burned, the buyer is not compelled to perfect the purchase, but will even recover whatever perchance was paid by him; but if either half or less than half has been burned, then the buyer is to be constrained to fulfill the sale, a valuation having been made by the arbitration of a “good man,” so that he is released from paying that portion of the price which shall have been found to diminish on account of the fire.
Sin autem venditor quidem sciebat domum esse exustam, emptor autem ignorabat, nullam venditionem stare, si tota domus ante venditionem exusta sit: si vero quantacumque pars aedificii remaneat, et stare venditionem et venditorem emptori quod interest restituere.
But if the seller indeed knew the house to have been burned down, while the buyer was ignorant, no sale stands, if the whole house had been burned down before the sale: but if whatever part of the building remains, both the sale stands and the seller must restore to the buyer his interest (quod interest).
Simili quoque modo ex diverso tractari oportet, ubi emptor quidem sciebat, venditor autem ignorabat: et hic enim oportet et venditorem stare et omne pretium ab emptore venditori, si non depensum est, solvi vel si solutum sit, non repeti.
Likewise, in a similar manner it ought conversely to be dealt with, where the buyer indeed knew, but the seller was ignorant: for here too it is proper that the seller stand, and that the whole price be paid by the buyer to the seller, if it has not been disbursed, or, if it has been paid, not be reclaimed.
Quod si uterque sciebat et emptor et venditor domum esse exustam totam vel ex parte, nihil actum fuisse dolo inter utramque partem compensando et iudicio, quod ex bona fide descendit, dolo ex utraque parte veniente stare non concedente.
But if both knew, both the buyer and the seller, that the house had been burned, wholly or in part, nothing is held to have been transacted by fraud by way of set-off between the two parties, and the action, which descends from good faith, does not concede that fraud coming from either side should stand.
Arboribus quoque vento deiectis vel absumptis igne dictum est emptionem fundi non videri esse contractam, si contemplatione illarum arborum, veluti oliveti, fundus comparabatur, sive sciente sive ignorante venditore: sive autem emptor sciebat vel ignorabat vel uterque eorum, haec optinent, quae in superioribus casibus pro aedibus dicta sunt.
It has likewise been said that, if the trees have been cast down by wind or consumed by fire, the purchase of the estate is not regarded as having been contracted, if the estate was being acquired in contemplation of those trees—for example, an olive-grove—whether the seller knew or was ignorant: and whether the buyer knew or was ignorant, or both of them, the same rules obtain as were stated in the preceding cases with respect to the buildings.
Cum servo dominus rem vendere certae personae iusserit, si alii vendidisset, quam cui iussus erat, venditio non valet: idem iuris in libera persona est: cum perfici venditio non potuit in eius persona, cui dominus venire eam noluit.
When the master has ordered a slave to sell the thing to a certain person, if he had sold it to someone other than the one to whom he was ordered, the sale is not valid: the same law holds in the case of a free person: since the sale could not be perfected in the person to whom the master was unwilling that it be sold.
Convenit mihi tecum, ut certum numerum tegularum mihi dares certo pretio quod ut faceres: utrum emptio sit an locatio? respondit, si ex meo fundo tegulas tibi factas ut darem convenit, emptionem puto esse, non conductionem: totiens enim conductio alicuius rei est, quotiens materia, in qua aliquid praestatur, in eodem statu eiusdem manet: quotiens vero et immutatur et alienatur, emptio magis quam locatio intellegi debet.
It was agreed between me and you that you would give me a fixed number of tiles for a fixed price, that you should do this: is it a sale or a letting? He replied: if it was agreed that I should give you tiles made from my own estate, I think it is a sale, not a hiring; for there is a hiring of some thing as often as the material in which something is furnished remains in the same state of the same subject; but as often as it is both transformed and alienated, it ought to be understood as a sale rather than a letting.
In vendendo fundo quaedam etiam si non dicantur, praestanda sunt, veluti ne fundus evincatur aut usus fructus eius, quaedam ita demum, si dicta sint, veluti viam iter actum aquae ductum praestatu iri: idem et in servitutibus urbanorum praediorum.
In selling a fundus (estate), certain things, even if they are not stated, must be warranted, for instance that the estate or its usufruct not be evicted; certain things only if they have been stated, for instance that a road, a right of way, a cattle‑drive, and a water‑conduit will be warranted: the same is so in the servitudes of urban properties.
Si cum servitus venditis praediis deberetur nec commemoraverit venditor, sed sciens esse reticuerit et ob id per ignorantiam rei emptor non utendo per statutum tempus eam servitutem amiserit, quidam recte putant venditorem teneri ex empto ob dolum.
If, when a servitude was owed to the estates sold, the seller did not mention it but, knowing it to exist, kept silent, and on that account the buyer, through ignorance of the matter, lost that servitude by not using it for the prescribed time, some rightly think the seller is held liable under the purchase (ex empto) for fraud (dolus).
Si, cum fundum venderes, in lege dixisses, quod mercedis nomine a conductore exegisses, id emptori accessurum esse, existimo te in exigendo non solum bonam fidem, sed etiam diligentiam praestare debere, id est non solum ut a te dolus malus absit, sed etiam ut culpa.
If, when you were selling the estate, you had said in the stipulation that what you had collected from the lessee under the name of rent would accrue to the buyer, I think that in collecting you ought to furnish not only good faith but also diligence, that is, that not only malicious fraud be absent on your part, but also fault (negligence).
Nec videtur abesse, si per eum factum est aut fiet, quo minus fundum emptor possideat. erit ergo ex empto actio, non ut venditor vacuam possessionem tradat, cum multis modis accidere poterit, ne tradere possit, sed ut, si quid dolo malo fecit aut facit, dolus malus eius aestimaretur.
Nor does it seem to be lacking, if through him something has been done or will be done whereby the buyer is hindered from possessing the estate. There will therefore be an action ex empto, not that the seller deliver vacant possession—since in many ways it could happen that he is unable to deliver—but so that, if he has done or is doing anything with dolus malus, his dolus malus be assessed.
Rutilia polla emit lacum sabatenem angularium et circa eum lacum pedes decem: quaero, numquid et decem pedes, qui tunc accesserunt, sub aqua sint, quia lacus crevit, an proximi pedes decem ab aqua rutiliae pollae iuris sint. proculus respondit: ego existimo eatenus lacum, quem emit rutilia polla, venisse quatenus tunc fuit, et circa eum decem pedes qui tunc fuerunt, nec ob eam rem, quod lacus postea crevit, latius eum possidere debet quam emit.
Rutilia Polla bought at Sabate an eel-pond and ten feet around that pond: I ask whether perhaps the ten feet which then adjoined are now under water, because the pond has grown, or whether the ten feet nearest the water are of Rutilia Polla’s right. Proculus answered: I reckon that the pond which Rutilia Polla bought came to her only so far as it then was, and the ten feet around it as they then were; nor for that reason, that the pond later grew, ought she to possess it more broadly than she bought.
Liberi hominis emptionem contrahi posse plerique existimaverunt, si modo inter ignorantes id fiat. quod idem placet etiam, si venditor sciat, emptor autem ignoret. quod si emptor sciens liberum esse emerit, nulla emptio contrahitur.
Most have thought that the purchase of a free man can be contracted, provided only that it is done between parties who are ignorant of the fact. The same view prevails even if the seller knows, but the buyer is ignorant. But if the buyer, knowing him to be free, has bought, no purchase is contracted.
Imperatores antoninus et verus augusti sextio vero in haec verba rescripserunt: " quibus mensuris aut pretiis negotiatores vina compararent, in contrahentium potestate esse: neque enim quisquam cogitur vendere, si aut pretium aut mensura displiceat, praesertim si nihil contra consuetudinem regionis fiat. "
The emperors Antoninus and Verus, the Augusti, wrote back to Sextius Verus in these words: " by what measures or at what prices merchants purchase wines is in the power of the contracting parties: for no one is compelled to sell if either the price or the measure is displeasing, especially if nothing is done contrary to the custom of the region. "
Pacta conventa, quae postea facta detrahunt aliquid emptioni, contineri contractui videntur: quae vero adiciunt, credimus non inesse. quod locum habet in his, quae adminicula sunt emptionis, veluti ne cautio duplae praestetur aut ut cum fideiussore cautio duplae praestetur. sed quo casu agente emptore non valet pactum, idem vires habebit iure exceptionis agente venditore.
Agreed pacts, which, being made afterwards, take something away from the purchase, are seen to be contained in the contract; but those that add to it, we believe are not included. This holds in matters that are auxiliary supports (adminicles) of the purchase, for example, that security for the double not be provided, or that security for the double be provided with a surety. But in a case in which, with the buyer as plaintiff, the pact is not valid, the same will have force in law by way of an exception when the seller is the plaintiff.
whether the same can be said with the price afterwards increased or diminished has not without reason been asked, since the substance of the sale consists in the price. paulus notes: if, with all things remaining intact, it is again agreed about augmenting or diminishing the price, a withdrawal from the prior contract and a new sale seems to have intervened.
Clavibus traditis ita mercium in horreis conditarum possessio tradita videtur, si claves apud horrea traditae sint: quo facto confestim emptor dominium et possessionem adipiscitur, etsi non aperuerit horrea: quod si venditoris merces non fuerunt, usucapio confestim inchoabitur.
With the keys having been delivered, thus the possession of the merchandise stored in the warehouses is deemed to have been delivered, if the keys have been delivered at the warehouses: this having been done, the buyer immediately acquires ownership (dominion) and possession, even if he has not opened the warehouses: but if the merchandise was not the seller’s, usucapion is immediately initiated.
Qui fundum vendidit, ut eum certa mercede conductum ipse habeat vel, si vendat, non alii, sed sibi distrahat vel simile aliquid paciscatur: ad complendum id, quod pepigerunt, ex vendito agere poterit.
One who has sold a landed estate, on terms that he himself shall have it under lease for a fixed hire, or that, if the purchaser sells, he shall alienate it not to another but to him, or bargains for something similar: for the completing of that which they agreed upon, he will be able to bring an action on the sale.
In lege fundi vendundi lapidicinae in eo fundo ubique essent exceptae erant, et post multum temporis in eo fundo repertae erant lapidicinae. eas quoque venditoris esse tubero respondit: labeo referre quid actum sit: si non appareat, non videri eas lapidicinas esse exceptas: neminem enim nec vendere nec excipere quod non sit, et lapidicinas nullas esse, nisi quae apparent et caedantur: aliter interpretantibus totum fundum lapidicinarum fore, si forte toto eo sub terra esset lapis. hoc probo.
In the terms of sale of a fund, stone-quarries on that fund, wherever they might be, had been excepted, and after a long time stone-quarries were found on that fund. Tubero answered that these too were the seller’s; Labeo says one should refer to what was transacted: if that does not appear, those quarries are not seen to have been excepted: for no one either sells or excepts what does not exist, and there are no stone-quarries except those which are apparent and being hewn: on a different interpretation, the whole fund would be of stone-quarries, if perchance stone lay under the whole of it. This I approve.
Fistulas emptori accessuras in lege dictum erat: quaerebatur, an castellum, ex quo fistulis aqua duceretur, accederet. respondi apparere id actum esse, ut id quoque accederet, licet scriptura non continetur.
It had been stated in the terms that the pipes would accede to the buyer: the question was whether the reservoir, from which water was conducted by the pipes, would also accede. I answered that it appears this was agreed as well, that this too should accede, although it is not contained in the writing.
Qui fundum ea lege emerat, ut soluta pecunia traderetur ei possessio, duobus heredibus relictis decessit: si unus omnem pecuniam solverit, partem familiae herciscundae iudicio servabit: nec, si partem solvat, ex empto cum venditore aget, quoniam ita contractum aes alienum dividi non potuit.
He who had purchased a farm on the condition that, once the money was paid, possession should be delivered to him, died leaving two heirs: if one pays all the money, he will secure his share by the action for partition of the family property; nor, if he pays only a part, will he proceed against the seller by an ex empto action, since a debt so contracted could not be divided.
Fundi partem dimidiam ea lege vendidisti, ut emptor alteram partem, quam retinebas, annis decem certa pecunia in annos singulos conductam habeat. labeo et trebatius negant posse ex vendito agi, ut id quod convenerit fiat. ego contra puto, si modo ideo vilius fundum vendidisti, ut haec tibi conductio praestaretur: nam hoc ipsum pretium fundi videretur, quod eo pacto venditus fuerat: eoque iure utimur.
You sold a half share of the estate on this condition, that the buyer should have the other share, which you were retaining, leased for ten years for a fixed sum year by year. Labeo and Trebatius deny that an action ex vendito can be brought to compel that what was agreed be done. I, on the contrary, think so—provided only that you therefore sold the estate cheaper, in order that this lease should be afforded to you: for this very thing would seem to be the price of the estate, since it was sold on that pact; and we proceed by this rule of law.
Cum manu sata in venditione fundi excipiuntur, non quae in perpetuo sata sunt excipi viderentur, sed quae singulis annis seri solent, ita ut fructus eorum tollatur: nam aliter interpretantibus vites et arbores omnes exceptae videbuntur.
When hand-sown plantings are excepted in the sale of a farm, it is not to be understood that those planted in perpetuity are excepted, but those which are accustomed to be sown each year, so that their fruits may be taken; for otherwise, on a different interpretation, all vines and trees would seem to be excepted.
Silva caedua in quinquennium venierat: quaerebatur, cum glans decidisset, utrius esset. scio servium respondisse, primum sequendum esse quod appareret actum esse: quod si in obscuro esset, quaecumque glans ex his arboribus quae caesae non essent cecidisset, venditoris esse, eam autem, quae in arboribus fuisset eo tempore cum haec caederentur, emptoris.
coppice-wood had been sold for a five-year period: it was asked, when an acorn had fallen, whose it was. I know that Servius replied that, first, what appeared to have been agreed must be followed; but if that were obscure, then whatever acorn had fallen from those trees which had not been felled was the seller’s, whereas that which had been on the trees at the time when these were being cut was the buyer’s.
Titius cum mutuos acciperet tot aureos sub usuris, dedit pignori sive hypothecae praedia et fideiussorem lucium, cui promisit intra triennium proximum se eum liberaturum: quod si id non fecerit die supra scripta et solverit debitum fideiussor creditori, iussit praedia empta esse, quae creditoribus obligaverat. quaero, cum non sit liberatus lucius fideiussor a titio, an, si solverit creditori, empta haberet supra scripta praedia. respondit, si non ut in causam obligationis, sed ut empta habeat, sub condicione emptio facta est et contractam esse obligationem.
Titius, when he was receiving as a mutuum so many gold pieces under interest, gave his estates in pledge or hypothec and a surety, Lucius, to whom he promised that within the next three-year period he would release him; and if he should not do that by the day written above, and the surety should pay the debt to the creditor, he ordered the estates which he had obligated to the creditors to be held as bought. I ask, since Lucius the surety has not been released by Titius, whether, if he pays the creditor, he would have the aforesaid estates as bought. He answered: if it was not with a view to the cause of the obligation, but so that he may have them as bought, the purchase was made under a condition and the obligation has been contracted.
Lucius titius promisit de fundo suo centum milia modiorum frumenti annua praestare praediis gaii seii: postea lucius titius vendidit fundum additis verbis his: " quo iure quaque condicione ea praedia lucii titii hodie sunt, ita veneunt itaque habebuntur": quaero, an emptor gaio seio ad praestationem frumenti sit obnoxius. respondit emptorem gaio seio secundum ea quae proponerentur obligatum non esse.
Lucius Titius promised from his estate to furnish annually one hundred thousand modii of grain to the praedia of Gaius Seius: afterwards Lucius Titius sold the estate with these words added: "By what right and under what condition those praedia of Lucius Titius are today, thus they are sold and thus they will be held": I ask whether the buyer is liable to Gaius Seius for the prestation of the grain. He responded that the buyer is not obligated to Gaius Seius according to the matters proposed.
Quotiens fundus in diem addicitur, utrum pura emptio est, sed sub condicione resolvitur, an vero condicionalis sit magis emptio, quaestionis est. et mihi videtur verius interesse, quid actum sit: nam si quidem hoc actum est, ut meliore allata condicione discedatur, erit pura emptio, quae sub condicione resolvitur: sin autem hoc actum est, ut perficiatur emptio, nisi melior condicio offeratur, erit emptio condicionalis.
Whenever an estate is knocked down in diem, the question is whether it is a pure purchase, but resolved under a condition, or rather a more properly conditional purchase. And it seems truer to me to consider what was agreed: for if indeed this was agreed, that one should withdraw when a better condition is brought forward, it will be a pure purchase which is resolved under a condition; but if instead this was agreed, that the purchase is perfected unless a better condition is offered, it will be a conditional purchase.
Idem iulianus libro quinto decimo quaerit, si res in diem addicta interciderit vel ancilla decesserit, an partus vel fructus eius nomine adiectio admitti possit. et negat admittendam adiectionem, quia alterius rei quam eius quae distracta est non solet adiectio admitti.
The same Julian, in the fifteenth book, asks whether, if a thing subject to an in diem addictio has perished, or a maidservant has died, an addition under the title of her offspring or fruits can be admitted. And he denies that the addition should be admitted, because an addition is not usually admitted of any thing other than that which has been sold.
Idem iulianus eodem libro scribit, si ex duobus servis viginti venditis et in diem addictis alter decesserit, deinde unius nomine qui superest emptor extiterit, qui supra viginti promitteret, an discedatur a priore contractu? et ait dissimilem esse hanc speciem partus specie et ideo hic discedi a priore emptione et ad secundam perveniri.
The same Julian writes in the same book, that if, of two slaves sold for twenty and bound in diem, one has died, then, in the name of the one who survives, a buyer has appeared who would promise above twenty—whether one should depart from the prior contract? And he says that this species is dissimilar to the species of offspring, and therefore here one departs from the prior purchase and comes to the second.
Sed et Marcellus libro quinto digestorum scribit pure vendito et in diem addicto fundo si melior condicio allata sit, rem pignori esse desinere, si emptor eum fundum pignori dedisset: ex quo colligitur, quod emptor medio tempore dominus est: alioquin nec pignus teneret.
But Marcellus also in the fifth book of the Digests writes that, when an estate has been sold purely and with an in diem addictio, if a better condition has been brought, the thing ceases to be in pledge, if the buyer had given that estate in pledge: from which it is gathered that the buyer is owner in the meantime; otherwise not even the pledge would hold.
Idem iulianus libro octagensimo octavo digestorum scripsit eum, qui emit fundum in diem, interdicto quod vi aut clam uti posse: nam hoc interdictum ei competit, cuius interest opus non esse factum. fundo autem, inquit, in diem addicto et commodum et incommodum omne ad emptorem pertinet, antequam venditio transferatur, et ideo, si quid tunc vi aut clam factum est, quamvis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus, inquit, quos percepit venditi iudicio praestaturum.
The same Julian wrote in the eighty-eighth book of the Digesta that he who buys a landed estate in diem can make use of the interdict “what was done by force or stealth”: for this interdict belongs to him whose interest it is that the work not be done. Moreover, he says, when the estate has been addicited in diem, both every advantage and every disadvantage pertains to the purchaser before the sale is transferred; and therefore, if anything was then done by force or stealth, although a better condition has been brought forward, he himself will have the useful interdict: but, he says, that action, like the fruits which he has collected, he will have to make good in the action on sale.
Cum igitur tunc recedatur ab emptione ( ubi pure contrahitur) vel tunc non impleatur ( ubi sub condicione fit) cum melior condicio sit allata: si falsus emptor subiectus sit, eleganter scribit sabinus priori rem esse emptam, quia non videtur melior condicio allata esse non existente vero emptore. sed et si existat alius emptor, meliorem tamen condicionem non adferat, aeque dicendum erit perinde haberi, ac si non existeret.
Accordingly, then, withdrawal is made from the purchase ( where it is contracted purely) or then it is not fulfilled ( where it is made under a condition) when a better condition has been brought forward: if a false buyer has been put forward, Sabinus writes elegantly that the thing is bought by the prior party, because a better condition is not seen to have been brought, there being no true buyer in existence. But even if another buyer exists, yet does not bring a better condition, it must equally be said to be held just as if he did not exist.
Melior autem condicio adferri videtur, si pretio sit additum. sed et si nihil pretio addatur, solutio tamen offeratur facilior pretii vel maturior, melior condicio adferri videtur. praeterea si locus oportunior solvendo pretio dicatur, aeque melior condicio allata videtur: et ita pomponius libro nono ex sabino scribit.
However, a better condition seems to be brought if an addition has been made to the price. But even if nothing is added to the price, yet if a payment of the price is offered easier or earlier, a better condition seems to be brought. Moreover, if a more opportune place for paying the price is stipulated, likewise a better condition seems to have been brought: and so Pomponius writes in book 9 from Sabinus.
He says the same: that if a more suitable person should accede to the purchase, a better condition is likewise seen to have been brought. Accordingly, if a buyer should come forward at the same price, but who buys on lighter conditions or who demands no surety, a better condition will be seen to have been brought. Therefore the same is to be approved even if he is prepared to buy at a cheaper price, provided he remits those things which had been burdensome to the seller in the prior purchase.
Item quod dictum est fructus interea captos emptorem priorem sequi, totiens verum est, quotiens nullus emptor existit, qui meliorem condicionem adferat, vel falsus exsistit: sin vero exstitit emptor posterior fructus refundere priorem debere constat, sed venditori. et ita iulianus libro quadragensimo octavo digestorum scripsit.
Likewise, what has been said—that the fruits meanwhile taken follow the prior purchaser—is true as often as no purchaser exists who brings better terms, or proves spurious: but if a subsequent purchaser has appeared, it is agreed that the prior must refund the fruits, but to the seller. And thus Julian wrote in the forty-eighth book of the Digests.
Si quis extiterit, qui meliorem condicionem adferat, deinde prior emptor adversus eum licitatus sit et penes eum emptum remanserit, dubitari poterit, utrum fructus ipse habeat, quasi nulla meliore condicione allata, an vero venditoris sint, licet eadem sit persona, quae meliorem condicionem attulit. quod ratio facere videtur: intererit tamen quid acti sit: et ita pomponius scribit.
If someone should arise who brings a better condition, and then the prior purchaser has bid against him and the purchase has remained in his hands, it may be doubted whether he himself has the fruits, as if no better condition had been brought, or rather whether they are the seller’s, even though it is the same person who brought the better condition. Reason seems to make for the latter; however, it will matter what was agreed; and so Pomponius writes.
Sabinus scribit licere venditori meliorem condicionem oblatam abicere sequique primam quasi meliorem, et ita utimur. quid tamen, si hoc erat nominatim actum, ut liceret resilire emptori meliore condicione allata? dicendum erit dissolutam priorem emptionem, etiamsi venditor sequentem non admittat.
Sabinus writes that it is permitted for the seller to reject a better condition that is offered and to follow the first as if it were better, and thus we practice. But what if it was expressly stipulated that it should be permitted for the buyer to resile when a better condition is brought forward? It must be said that the prior sale is dissolved, even if the seller does not admit the subsequent one.
Sed si proponatur a creditore pignus in diem addictum, non potest videri bona fide negotium agi, nisi adiectio recipiatur. quid ergo est, si inops emptor et impediendae tantummodo venditionis causa intervenit? potest creditor sine periculo priori emptori addicere.
But if a pledge is put forward by the creditor with an in diem addictio, the negotiation cannot be seen to be conducted in good faith, unless the addition is accepted. What then, if the buyer is indigent and has intervened solely for the sake of hindering the sale? The creditor can, without peril, award it to the prior buyer.
Quod autem sabinus scribit fundum in diem addici non posse rursus, qui semel fuerat in diem addictus, ratione eiusmodi defendit, quia prioris, inquit, emptoris statim fit, scilicet quasi non videatur melior condicio allata, si non secure secundo emptori fundus addicitur, sed alia licitatio prospicitur. sed iulianus libro quinto decimo digestorum scripsit interesse multum, quid inter contrahentes actum sit, nec impedire quicquam vel hoc agi, ut saepius fundus collocetur, dum vel prima vel secunda vel tertia adiectione res a venditore discedat.
As for what Sabinus writes—that an estate cannot again be adjudged in diem which once had been adjudged in diem—he defends it with this reasoning: because, he says, it at once becomes the first buyer’s; that is, as though a better condition did not seem to have been brought, if the estate is not securely knocked down to the second buyer, but another licitation is envisaged. But Julian, in book 15 of the Digest, wrote that it makes much difference what was transacted between the contracting parties, and that nothing hinders even this arrangement: that the estate be put up repeatedly, so long as at the first or second or third addition the thing passes from the seller.
Quod si uno pretio vendiderint, dicendum est totam priori emptam manere, quemadmodum si quis mihi totum fundum ad diem addixisset, postea vero pretio adiecto dimidium alii addixerit. celsus quoque libro octavo digestorum refert mucium brutum labeonem quod sabinum existimare: ipse quoque celsus idem probat et adicit mirari se a nemine animadversum, quod si prior emptor ita contraxit, ut nisi totum, fundum emptum nollet habere, non habere eum eam partem emptam, quam unus ex sociis posteriori emptori addicere noluit.
But if they sold for one price, it must be said that the whole remains bought for the prior purchaser, just as if someone had knocked down to me the entire estate until a day, but afterwards, with the price added, had knocked down half to another. Celsus also, in book eight of the Digest, reports that Mucius, Brutus, and Labeo think the same as Sabinus: Celsus himself likewise approves this and adds that he marvels it has been noticed by no one, that if the earlier buyer contracted thus—that unless he should have the whole, he would not wish to have the estate as bought—he does not have as bought that part which one of the partners was unwilling to adjudge (knock down) to the later purchaser.
Sed si emptor alium non idoneum subiecit eique fundus addictus est, non video, inquit, quemadmodum priori sit emptus, cum alia venditio et vera postea subsecuta sit. sed verum est venditorem deceptum ex vendito actionem habere cum priore emptore, quanti sua intersit id non esse factum, per quam actionem et fructus, quos prior emptor perceperit et quo deterior res culpa vel dolo malo eius facta sit, recipiet venditor. et ita labeoni et nervae placet.
But if the buyer has put forward another person not suitable, and the estate has been adjudged to him, I do not see, he says, how it was bought for the former buyer, since another and true sale afterwards ensued. But it is true that the seller, having been deceived, has an action ex vendito against the prior buyer, for as much as it is in his interest that this not have been done; by which action the seller will also recover the fruits which the prior buyer has collected, and to the extent that the thing has been made worse by his culpa or dolus malus. And thus it pleases Labeo and Nerva.
Sed et si pupillus postea sine tutoris auctoritate emerit, consentiente venditore abibitur a priore emptione. idem et de servo alieno: aliter atque si servo suo vel filio, quem in potestate habet, vel domino rei per errorem id addixerit, quia non est emptio his casibus. quod si alieno servo, quem putaverit liberum esse, addixerit, contra se habebit et erit hic similis egenti.
But also, if a ward afterward, without the authority of his tutor, has purchased, with the vendor consenting he will be let go from the prior purchase. The same also regarding another’s slave: it is otherwise than if, through error, he has adjudged it to his own slave or to a son whom he has in his power, or to the owner of the thing, because in these cases there is no purchase. But if he has adjudged it to another’s slave whom he supposed to be free, he will have it against himself, and here he will be like one in need.
Si praedio in diem addicto ante diem venditor mortuus sit, sive post diem heres ei exsistat sive omnino non exsistat, priori praedium emptum est, quia melior condicio allata, quae domino placeat, intellegi non potest, cum is qui vendat non exsistat: quod si intra diem adiectionis heres existat, melior condicio ei adferri potest.
If, with a praedium sold under an in diem adjection, the seller should die before the day, whether after the day an heir exists for him or does not exist at all, the praedium is bought for the prior purchaser; for a better condition brought, which would please the owner, cannot be understood, since he who sells does not exist: but if within the day of the adjection an heir comes to exist, a better condition can be brought to him.
Si fundus in diem addictus fuerit pluris, ut quaedam ei accedant, non quae accesserint priori emptori, si non minoris sint hae res, quam quo pluris postea fundus venierit, prior venditio valet, quasi melior condicio allata non sit: si minoris sint. idemque aestimandum est, si dies longior pretii solvendi data fuerit, ut quaeratur, quantum ex usura eius temporis capi potuerit.
If an estate has been knocked down with an in diem clause at a higher price, on condition that certain things should accrue to it—not those which had accrued to the prior purchaser—then, if these things are not of lesser value than the amount by which the estate has later been sold for more, the prior sale is valid, as though no better condition had been brought; if they are of lesser value. And the same is to be assessed if a longer term for paying the price has been granted, namely that one inquire how much could have been taken as interest for that period.
Imperator severus rescripsit: " sicut fructus in diem addictae domus, cum melior condicio fuerit allata, venditori restitui necesse est, ita rursus quae prior emptor medio tempore necessario probaverit erogata, de reditu retineri vel, si non sufficiat, solvi aequum est". et credo sensisse principem de empti venditi actione.
The Emperor Severus wrote back: "Just as the fruits of a house sold subject to an in diem addictio, when a better offer has been brought, must be restored to the seller, so in turn it is equitable that those things which the prior buyer shall have proved to have been necessarily expended in the meantime be retained from the return, or, if it does not suffice, be paid." And I believe that the emperor had in mind the actions of purchase and of sale.
Cum duo servi duobus separatim denis in diem addicti sint et exstiterit qui pro utroque triginta det, refert, unius pretio decem an singulorum quina adiciat: secundum superiorem adiectionem is servus inemptus erit, cuius pretio adiectio facta fuerit, secundum posteriorem adiectionem uterque ad posteriorem emptorem pertinebit: quod si incertum sit, ad utrius pretium addiderit, a priore emptione non videtur esse discessum.
When two slaves have been adjudged under an in diem clause separately for ten apiece, and someone has appeared who will give thirty for both, it matters whether he adds ten to the price of one, or five to each individually: under the former addition, that slave will be unbought whose price the addition has been made to; under the latter addition, each will pertain to the later purchaser. But if it is uncertain to which one’s price he has added, it is not considered that there has been a departure from the prior purchase.
Fundo in diem addicto si postea pretium adiectum est et venditor alio fundo applicito eum ipsum fundi posteriori emptori addixit et id sine dolo malo fecit, priori emptori obligatus non erit: nam quamvis non id tantum, quod in diem addictum erat, sed aliud quoque cum eo venierit, tamen, si venditor dolo caret, prioris emptoris causa absoluta est: id enim solum intuendum est, an priori venditori bona fide facta sit adiectio.
If an estate was made subject to an in diem additio and afterwards the price was increased, and the seller, with another estate attached, assigned that very estate to a later purchaser of the estate, and did this without dolus malus, he will not be bound to the earlier purchaser: for although not only that which was subject to the in diem additio but also something else was sold together with it, nevertheless, if the seller is free of dolus, the cause of the first purchaser is discharged: for this alone is to be considered, whether the additio was made in good faith to the first purchaser by the seller.
Cum venditor fundi in lege ita caverit: " si ad diem pecunia soluta non sit, ut fundus inemptus sit", ita accipitur inemptus esse fundus, si venditor inemptum eum esse velit, quia id venditoris causa caveretur: nam si aliter acciperetur, exusta villa in potestate emptoris futurum, ut non dando pecuniam inemptum faceret fundum, qui eius periculo fuisset.
When the seller of an estate has thus provided in the contract: " if by the day the money has not been paid, that the estate be unbought," it is thus understood that the estate is unbought, if the seller wishes it to be unbought, because that was provided for the seller’s sake: for if it were taken otherwise, with the villa burned, it would be in the buyer’s power, by not giving the money, to make the estate unbought, which would have been at his risk.
Si fundus lege commissoria venierit, hoc est ut, nisi intra certum diem pretium sit exsolutum, inemptus fieret, videamus, quemadmodum venditor agat tam de fundo quam de his, quae ex fundo percepta sint, itemque si deterior fundus effectus sit facto emptoris. et quidem finita est emptio: sed iam decisa quaestio est ex vendito actionem competere, ut rescriptis imperatoris antonini et divi severi declaratur.
If a farm has been sold under a lex commissoria, that is, that unless the price be paid within a fixed day it would become as though not bought, let us consider how the seller should proceed both concerning the estate and concerning those things that have been taken from the estate, and likewise if the estate has been made worse by the act of the buyer. And indeed the purchase is terminated; but the question has already been decided that an action ex vendito is competent, as is declared by the rescripts of Emperor Antoninus and the deified Severus.
Marcellus libro vicensimo dubitat, commissoria utrum tunc locum habet, si interpellatus non solvat, an vero si non optulerit. et magis arbitror offerre eum debere, si vult se legis commissoriae potestate solvere: quod si non habet cui offerat, posse esse securum.
Marcellus in the twentieth book is in doubt whether the commissory clause then has effect, if, when put on notice, he does not pay, or rather if he does not offer (tender). And I am more of the view that he ought to tender, if he wishes to free himself from the power of the lex commissoria; but if he has no one to whom he may tender, he can be secure.
Lege fundo vendito dicta, ut, si intra certum tempus pretium solutum non sit, res inempta sit, de fructibus, quos interim emptor percepisset, hoc agi intellegendum est, ut emptor interim eos sibi suo quoque iure perciperet: sed si fundus revenisset, aristo existimabat venditori de his iudicium in emptorem dandum esse, quia nihil penes eum residere oporteret ex re, in qua fidem fefellisset.
By a clause declared in the sale of an estate, that, if within a fixed time the price be not paid, the thing be unbought, as to the fruits which in the meantime the buyer had perceived, it is to be understood that this is arranged, that the buyer meanwhile should take them to himself also by his own right: but if the estate should revert, Aristo thought that an action ought to be given to the seller against the buyer concerning these, because nothing ought to remain in his possession from a matter in which he had betrayed good faith.
De lege commissoria interrogatus ita respondit, si per emptorem factum sit, quo minus legi pareretur, et ea lege uti venditor velit, fundos inemptos fore et id, quod arrae vel alio nomine datum esset, apud venditorem remansurum.
Asked about the commissory clause, he replied thus: if through the buyer’s doing it came about that there was no obedience to the clause, and the seller wishes to make use of that clause, the estates shall be as not bought, and that which had been given as arrha (earnest-money), or under another name, shall remain with the seller.
Post diem lege commissoria comprehensum venditor partem reliquae pecuniae accepit. respondit, si post statutum diem reliquae pecuniae venditor legem dictam non exercuisset et partem reliqui debiti accepisset, videri recessum a commissoria.
After the day fixed by the commissory clause, the seller accepted part of the remaining money. He answered that, if after the appointed day the seller had not exercised the said clause and had accepted part of the remaining debt, it is deemed that there has been a withdrawal from the commissory clause.
Mulier fundos gaio seio vendidit et acceptis arrae nomine certis pecuniis statuta sunt tempora solutioni reliquae pecuniae: quibus si non paruisset emptor, pactus est, ut arram perderet et inemptae villae essent. die statuto emptor testatus est se pecuniam omnem reliquam paratum fuisse exsolvere ( et sacculum cum pecunia signatorum signis obsignavit), defuisse autem venditricem, posteriore autem die nomine fisci testato conventum emptorem, ne ante mulieri pecuniam exsolveret, quam fisco satisfaceret. quaesitum est, an fundi non sint in ea causa, ut a venditrice vindicari debeant ex conventione venditoris.
A woman sold estates to Gaius Seius, and, certain monies having been received by way of earnest-money (arra), times were set for the payment of the remaining money: if the buyer did not comply with these, it was agreed that he would forfeit the earnest and that the villas would be unbought. On the appointed day the buyer attested that he had been prepared to pay all the remaining money (and he sealed a small bag with the money with the seals of the signatories), but the selleress was lacking; moreover, on the following day, in the name of the Fisc it was attested that the buyer was convened, not to pay the money to the woman before he satisfied the Fisc. It was asked whether the estates are not in such a condition that they ought to be vindicated by the selleress under the seller’s agreement.
In hereditate vendita utrum ea quantitas spectatur, quae fuit mortis tempore, an ea, quae fuit cum aditur hereditas, an ea quae fuit cum hereditas venumdatur, videndum erit. et verius est hoc esse servandum quod actum est: plerumque autem hoc agi videtur, ut quod ex hereditate pervenit in id tempus quo venditio fit, id videatur venisse.
In a sold inheritance, whether that quantity is considered which existed at the time of death, or that which existed when the inheritance is entered upon, or that which existed when the inheritance is sold, will have to be considered. And the truer view is that what was transacted should be observed; for the most part, however, this seems to be the transaction, that whatever from the inheritance has come up to the time when the sale is made is deemed to have been sold.
Illud potest quaeri, si etiam impuberi sit substitutus is qui vendidit hereditatem testatoris, an etiam id, quod ex impuberis hereditate ad eum qui vendidit hereditatem pervenit, ex empto actioni locum faciat. et magis est, ne veniat, quia alia hereditas est: licet enim unum testamentum sit, alia tamen atque alia hereditas est. plane si hoc actum sit, dicendum erit etiam impuberis hereditatem in venditionem venire, maxime si iam delata impuberis hereditate venierit hereditas.
That can be asked, if the one who sold the testator’s inheritance has also been substituted to the underage person (minor), whether also that which, from the minor’s inheritance, has come to him who sold the inheritance gives occasion for an action ex empto. And the better view is that it does not come, because it is a different inheritance: for although there is one testament, nevertheless one inheritance and another inheritance are different. Plainly, if this was agreed, it will have to be said that even the minor’s inheritance comes into the sale, especially if, the minor’s inheritance already devolved, the inheritance was sold.
Pervenisse ad venditorem hereditatis quomodo videatur, quaeritur. et ego puto, antequam quidem corpora rerum hereditariarum nactus venditor fuerit, hactenus videri ad eum pervenisse, quatenus mandare potest earum rerum persecutionem actionesque tribuere: enimvero ubi corpora nactus est vel debita exegit, plenius ad eum videri pervenisse. sed et si rerum venditarum ante hereditatem venditam pretia fuerit consecutus, palam est ad eum pretia rerum pervenisse.
It is asked how something is deemed to have come to the seller of an inheritance. And I think that, before indeed the vendor has got hold of the bodies of the hereditary things, it is to be considered to have come to him only to this extent, in so far as he can mandate the pursuit of those things and confer the actions; but truly, when he has got hold of the bodies or has exacted the debts, it is to be deemed to have come to him more fully. And if he has obtained the prices of things that were sold before the inheritance was sold, it is plain that the prices of the things have come to him.
It must be held that it is deemed to have come through as to the effect, not in the primary reckoning: therefore what someone has provided under the name of legacies is not seen to have come to him; and if there is any debt or any other hereditary burden, it will rightly be denied to have come through. Moreover, the prices of things that were donated before the sale are required to be made good by the rule of equity.
Sed et si quid dolo malo eorum factum est, quo minus ad eos perveniat, et hoc emptori praestandum est: fecisse autem dolo malo quo minus perveniat videtur, sive alienavit aliquid, vel etiam accepto quem liberavit vel id egit dolo malo, ne de hereditate adquireretur vel ne possessionem adipisceretur quam posset adipisci. sed et si non dolo malo, sed lata culpa admiserit aliquid, utique tenebitur: deperdita autem et deminuta sine dolo malo venditoris non praestabuntur.
But also, if anything has been done by their dolus (fraud), to prevent its reaching them, this too must be made good to the buyer: he is deemed to have acted with dolus to prevent its reaching them if he has alienated something, or even, by acceptilation, has released a debtor, or acted with dolus so that nothing would be acquired from an inheritance, or so that he would not obtain a possession which he could obtain. And even if, not by dolus, but by gross fault (culpa lata), he has allowed something, he will certainly be liable: but things lost and diminished without the seller’s dolus will not be warranted.
Illud quaesitum est, an venditor hereditatis ob debitum a filio suo qui in potestate eius esset servove ei, cuius hereditatem vendidisset, praestare debeat emptori. et visum est, quidquid dumtaxat de peculio filii servive aut in suam rem versum inveniatur, praestare eum debere.
The question was raised whether the seller of an inheritance ought to be answerable to the purchaser on account of a debt incurred by his son who was in his power, or by the slave of the person whose inheritance he had sold. And it has been held that he must make good whatever, only, is found either out of the peculium of the son or slave, or to have been turned to his own account.
Solet quaeri, an et, si quid lucri occasione hereditatis venditor senserit, emptori restituere id debeat. et est apud iulianum haec quaestio tractata libro sexto digestorum et ait, quod non debitum ^ debitur^ exegerit, retinere heredem et quod non debitum solverit, non reputare: nam hoc servari, ut heres emptori non praestet quod non debitum exegerit, neque ab eo consequatur quod non debitum praestiterit. si autem condemnatus praestiterit, hoc solum heredi sufficit esse eum condemnatum sine dolo malo suo, etiamsi maxime creditor non fuerit is cui condemnatus est heres: quae sententia mihi placet.
It is customary to ask whether also, if the seller has realized any profit on the occasion of the inheritance, he ought to restore it to the buyer. And this question is handled by Julian in the sixth book of the Digest, and he says that the heir may retain what he has collected though it was not owed, and need not reckon what he has paid though it was not owed; for this is observed: that the heir need not make good to the buyer what he has exacted though it was not owed, nor obtain from him what he has furnished though it was not owed. But if, having been condemned, he has paid, this alone suffices for the heir—that he was condemned without his own fraud, even if the person to whom the heir was condemned was by no means a creditor; which opinion pleases me.
Non solum autem hereditarias actiones, sed etiam eas obligationes quas ipse heres constituit dicendum erit praestari emptori debere: itaque et si fideiussorem acceperit ab hereditario debitore, ipsam actionem quam habet heres praestare emptori debebit: sed et si novaverit vel in iudicium deduxerit actionem, praestare debebit hanc ipsam actionem quam nactus est.
Not only, moreover, must the hereditary actions be furnished to the purchaser, but even those obligations which the heir himself has constituted: and thus, even if he has taken a surety from the hereditary debtor, he will have to furnish to the purchaser the very action which the heir has; and likewise, if he has novated or has brought the action into judgment, he must furnish this very action which he has obtained.
Denique si rem hereditariam heres vendiderit ac per hoc fuerit condemnatus, non habet contra emptorem actionem, quia non ideo condemnatur quod heres esset, sed quod vendiderit. sed si pretium rei distractae emptori hereditatis dedit, videamus, an locus sit ex vendito actioni: et putem esse.
Finally, if the heir has sold a hereditary thing and on this account has been condemned, he does not have an action against the buyer, because he is not condemned for the reason that he was an heir, but because he sold. But if he gave the price of the thing alienated to the purchaser of the inheritance, let us see whether there is room for an action ex vendito: and I think there is.
Sive ipse venditor dederit aliquid pro hereditate sive procurator eius sive alius quis pro eo, dum negotium eius gerit, locus erit ex vendito actioni, dummodo aliquid absit venditori hereditatis: ceterum si nihil absit venditori, consequens erit dicere non competere ei actionem.
Whether the seller himself has paid something on account of the inheritance, or his procurator, or anyone else on his behalf while managing his business, there will be room for the action ex vendito, provided that something is lacking to the seller of the inheritance; but if nothing is lacking to the seller, it follows to say that the action does not lie for him.
Apud iulianum scriptum est, si venditor hereditatis exceperit servum sine peculio et eius nomine cum eo fuerit actum de peculio et in rem verso, id dumtaxat eum consequi, quod praestiterit eius peculii nomine quod emptorem sequi debeat, aut quod in rem defuncti versum est: his enim casibus aes alienum emptoris solvit, ex ceteris causis suo nomine condemnetur.
It is written in Julian that, if the seller of an inheritance has excepted a slave without a peculium, and on his account an action has been brought against him de peculio and for in rem verso, he is to recover only what he has paid under the heading of that peculium which ought to follow the purchaser, or what has been turned into the estate of the deceased: for in these cases he discharges the purchaser’s debt; in other causes let him be condemned in his own name.
Quid ergo si servum cum peculio exceperit venditor hereditatis conventusque de peculio praestitit? Marcellus libro sexto digestorum non repetere eum scripsit, si modo hoc actum est, ut, quod superfuisset ex peculio, hoc haberet: at si contra actum est, recte repetere eum posse ait: si vero nihil expressim inter eos convenit, sed tantummodo peculii mentio facta est, cessare ex vendito actionem constat.
What then if the seller of an inheritance has excepted a slave together with his peculium, and, when sued on the peculium, has satisfied the claim? Marcellus, in the sixth book of the Digest, wrote that he is not to recover, provided only this was agreed, that what had remained from the peculium, that he should have; but if it was agreed to the contrary, he says he can rightly recover. But if nothing was expressly agreed between them, but only mention of the peculium was made, it is established that the action ex vendito ceases.
Si venditor hereditatis aedes sibi exceperit, quarum nomine damni infecti promissum fuerat, interest quid acti sit: nam si ita excepit, ut damni quoque infecti stipulationis onus sustineret, nihil ab emptore consequeretur: si vero id actum erit, ut emptor hoc aes alienum exsolveret, ad illum onus stipulationis pertinebit: si non apparebit quid acti sit, verisimile erit id actum, ut eius quidem damni nomine, quod ante venditionem datum fuerit, onus ad emptorem, alterius temporis ad heredem pertineat.
If the seller of an inheritance has excepted to himself buildings, in respect of which a promise for damnum infectum had been made, it matters what was agreed: for if he so excepted them as also to bear the onus of the stipulation for damnum infectum, he would obtain nothing from the buyer; but if it was agreed that the buyer should discharge this debt (aes alienum), the burden of the stipulation will pertain to him; if it does not appear what was agreed, it will be plausible that it was agreed thus: that, in the name of that damage indeed which shall have been inflicted before the sale, the burden goes to the buyer, but for another time to the heir.
Si titius maevi hereditatem seio vendiderit et a seio heres institutus eam hereditatem attio vendiderit, an ex priore venditione hereditatis cum attio agi possit? et ait iulianus: quod venditor hereditatis petere a quolibet extraneo herede potuisset, id ab hereditatis emptore consequatur: et certe si seio alius heres exstitisset, quidquid venditor maevianae hereditatis nomine praestitisset, id ex vendito actione consequi ab eo potuisset: nam et si duplam hominis a seio stipulatus fuissem et ei heres exstitissem eamque hereditatem titio vendidissem, evicto homine rem a titio servarem.
If Titius has sold Maevius’s inheritance to Seius, and, having been instituted heir by Seius, has sold that inheritance to Attius, can action be brought against Attius on the prior vendition of the inheritance? And Julian says: what the seller of the inheritance could have demanded from any extraneous heir, that he obtains from the purchaser of the inheritance; and certainly, if some other heir than Seius had arisen, whatever the seller, in the name of Maevius’s inheritance, had furnished, that he could have recovered from him by the action ex vendito; for also, if I had stipulated the double for a slave from Seius and had become his heir and had sold that inheritance to Titius, with the slave evicted I would safeguard the matter by recourse from Titius.
Si quid publici vectigalis nomine praestiterit venditor hereditatis, consequens erit dicere agnoscere emptorem et hoc debere: namque hereditaria onera etiam haec sunt. et si forte tributorum nomine aliquid dependat, idem erit dicendum.
If the seller of the inheritance has rendered anything under the name of public vectigal, it will be consistent to say that the buyer should acknowledge and be liable for this as well: for these too are hereditary burdens. And if perchance he should disburse anything under the name of tributes, the same must be said.
Quod si funere facto heres vendidisset hereditatem, an impensam funeris ab emptore consequatur? et ait labeo emptorem impensam funeris praestare debere, quia et ea, inquit, impensa hereditaria esset: cuius sententiam et iavolenus putat veram et ego arbitror.
But if, the funeral having been performed, the heir had sold the inheritance, does he recover the expense of the funeral from the buyer? And labeo says that the buyer ought to furnish the funeral expense, because, he says, that expense too would be hereditary: whose opinion both iavolenus deems true and I also judge so.
Cum quis debitori suo heres exstitit, confusione creditor esse desinit: sed si vendidit hereditatem, aequissimum videtur emptorem hereditatis vicem heredis optinere et idcirco teneri venditori hereditatis, sive cum moritur testator debuit ( quamvis post mortem debere desiit adita a venditore hereditate) sive quid in diem debeatur sive sub condicione et postea condicio exstitisset, ita tamen, si eius debiti adversus heredem actio esse poterat, ne forte etiam ex his causis, ex quibus cum herede actio non est, cum emptore agatur.
When someone has become heir to his debtor, by confusion he ceases to be a creditor: but if he has sold the inheritance, it seems most equitable that the purchaser of the inheritance occupy the place of the heir and therefore be liable to the seller of the inheritance, whether the debtor owed when the testator dies (although after death he ceased to owe, the inheritance having been entered upon by the seller), or whether something is owed to a day or under a condition and afterwards the condition came to pass, provided, however, that an action for that debt could have been had against the heir, lest perchance also from those causes for which there is no action against the heir, an action be brought against the purchaser.
Quod si nulla hereditas ad venditorem pertinuit, quantum emptori praestare debuit, ita distingui oportebit, ut, si est quidem aliqua hereditas, sed ad venditorem non pertinet, ipsa aestimetur, si nulla est, de qua actum videatur, pretium dumtaxat et si quid in eam rem impensum est emptor a venditore consequatur.
But if no inheritance pertained to the seller, how much he ought to make good to the buyer must be distinguished as follows: if indeed there is some inheritance, but it does not pertain to the seller, that very inheritance is to be appraised; if there is none—about which the transaction appears to have been—then the buyer shall recover from the seller only the price and whatever has been expended on that matter.
Quod si in venditione hereditatis id actum est, si quid iuris esset venditoris, venire nec postea quicquam praestitu iri: quamvis ad venditorem hereditas non pertinuerit, nihil tamen eo praestabitur, quia id actum esse manifestum est, ut quemadmodum emolumentum negotiationis, ita periculum ad emptorem pertineret.
But if, in the sale of an inheritance, it was stipulated that whatever right the seller had should be sold, and that nothing thereafter should be warranted: although the inheritance did not pertain to the seller, nevertheless nothing will be furnished on that account, because it is manifest that it was stipulated that, just as the emolument of the negotiation, so the peril should pertain to the buyer.
Si ex pluribus heredibus unus, antequam ceteri adirent hereditatem, pecuniam, quae sub poena debebatur a testatore, omnem solverit et hereditatem vendiderit nec a coheredibus suis propter egestatem eorum quicquam servare poterit, cum emptore hereditatis vel ex stipulatu vel ex vendito recte experietur: omnem enim pecuniam hereditario nomine datam eo manifestius est, quod in iudicio familiae herciscundae deducitur, per quod nihil amplius unusquisque a coheredibus suis consequi potest, quam quod tamquam heres impenderit.
If, from among several heirs, one—before the others enter upon the inheritance—has paid all the money that was owed under a penalty by the testator, and has sold the inheritance, and cannot recover anything from his coheirs because of their indigence, he may proceed rightly against the purchaser of the inheritance either ex stipulatu or ex vendito; for it is all the more evident that all the money given in the hereditary name is deducted in the iudicium familiae herciscundae, by which each person can obtain from his coheirs nothing more than what he has expended in the character of heir.
Multum interest, sub condicione aliqua obligatio veneat an, cum ipsa obligatio sub condicione sit, pure veneat. priore casu deficiente condicione nullam esse venditionem, posteriore statim venditionem consistere: nam si titius tibi decem sub condicione debeat et ego abs te nomen eius emam, confestim ex empto vendito agere potero, ut acceptum ei facias.
Much it matters, whether an obligation is sold under some condition, or, when the obligation itself is under a condition, it is sold purely. in the former case, with the condition failing, there is no sale; in the latter, the sale stands at once: for if Titius should owe you ten under a condition and I buy from you his claim (nomen), I shall immediately be able to sue on purchase and sale, that you enter it as received for him (acceptum), i.e., give him an acquittance.
Venditor ex hereditate interposita stipulatione rem hereditariam persecutus alii vendidit: quaeritur, quid ex stipulatione praestare debeat: nam bis utique non committitur stipulatio, ut et rem et pretium debeat. et quidem si, posteaquam rem vendidit heres, intercessit stipulatio, credimus pretium in stipulationem venisse: quod si antecessit stipulatio, deinde rem nactus est, tunc rem debebit. si ergo hominem vendiderit et is decesserit, an pretium eiusdem debeat?
The seller, in respect of an inheritance, after a stipulation had been interposed, having pursued a hereditary thing, sold it to another: the question is, what he ought to render under the stipulation: for assuredly a stipulation is not incurred twice, so that he should owe both the thing and the price. And indeed, if, after the heir sold the thing, the stipulation intervened, we believe the price to have entered into the stipulation; but if the stipulation came first, and then he obtained the thing, then he will owe the thing. If therefore he sold a slave and he has died, does he owe that same one’s price?
for the promisor of Stichus would not be bound, if he had sold him, upon his death, provided no delay had intervened. but where I sold the inheritance and afterwards sold a thing from it, it can seem that I am conducting his business rather than that of the inheritance. but this in a single thing cannot be believed: for if I have sold the same man to you, and, he not yet having been delivered, I have also sold him to another and have received the price, upon his death let us see whether I owe you nothing under the purchase (ex empto), since I made no delay in delivering (for the price of a man sold is taken not from the thing, but on account of the negotiation), and let it be as if I had not sold to another: for I owed you the thing, not the action.
but when the inheritance comes, it seems to be tacitly transacted that, if I have done anything in the capacity of heir, I should render that to the buyer, as though I were managing his business: just as the seller of a farm/estate must render the fruits according to the rule of good faith, although, if he has neglected it as though it were another’s, nothing can be imputed to him, unless he were charged with fault. What if I have sought the thing which I sold, while another was in possession, and I have received the valuation of the suit, do I owe him the price or the thing? Assuredly the thing; for I ought to render to him not the actions, but the thing: and if, having been cast out by force, or on account of an action of theft, I have exacted the double, nothing of this will pertain to the buyer.
Hereditatem cornelii vendidisti: deinde attius, cui a te herede cornelius legaverat, priusquam legatum ab emptore perciperet, te fecit heredem: recte puto ex vendito te acturum ut tibi praestetur, quia ideo eo minus hereditas venierit, ut id legatum praestaret emptor, nec quicquam intersit, utrum attio, qui te heredem fecerit, pecunia debita sit, an legatario.
You sold Cornelius’s inheritance: then Attius, to whom Cornelius had bequeathed (a legacy) to be paid by you as heir, before he could receive the legacy from the buyer, made you his heir: I think it right that you bring an action ex vendito so that it be rendered to you, because for that reason the inheritance sold for so much the less, in order that the buyer should perform that legacy; nor does it make any difference whether the money is owed to Attius, who made you heir, or to the legatee.
Si excepto fundo hereditario veniit hereditas, deinde eius fundi nomine venditor aliquid adquisit ^ adquisiit^, debet id praestare emptori hereditatis. paulus: immo semper quaeritur in ea re, quid actum fuerit: si autem id non apparebit, praestare eam rem debebit emptori venditor, nam id ipsum ex ea hereditate ad eum pervenisse videbitur non secus ac si eum fundum in hereditate vendenda non excepisset.
If an inheritance is sold with the hereditary farm excepted, then afterward, under the name of that farm, the seller acquired ^ adquisiit^ something, he ought to render that to the purchaser of the inheritance. paulus: rather, the question is always asked in that matter what was agreed; but if that does not appear, the seller ought to render that thing to the buyer, for that very thing will be seen to have come to him from that inheritance no differently than if he had not excepted that farm when selling the inheritance.
Celsus filius putabat, si vendidisset mihi filius familias rem peculiarem, etiam, si conveniat ut abeatur ab ea venditione, inter patrem et filium et me convenire debere, ne, si cum patre solo pactus sim, filius non possit liberari et quaeratur, utrumne nihil agatur ex ea pactione an vero ego quidem liberer, filius maneat obligatus, sicuti, si pupillus sine tutoris auctoritate paciscatur, ipse quidem liberatur, non etiam qui cum eo pactus est. nam quod aristo dixit posse ita pacisci, ut unus maneat obligatus, non est verum, quia pro una parte contrahentium abiri pacto ab emptione non possit: et ideo si ab una parte renovatus sit contractus, dicitur non valere eiusmodi pactionem. sed dicendum est patre paciscente et liberato adversario filium quoque obiter liberari.
Celsus the son thought that, if a son under paternal power had sold me a thing of his peculium, then even if it be agreed that the sale be rescinded, the agreement ought to be among the father and the son and me, lest, if I have made a pact with the father alone, the son cannot be released and the question arise whether nothing is effected by that pact, or rather that I indeed am freed while the son remains obligated—just as, if a pupil without the tutor’s authority makes a pact, he indeed is released, but not also the one who made the pact with him. For what Aristo said—that one can so make a pact that one alone remains obligated—is not true, because on one side of the contracting parties one cannot by a pact depart from a purchase: and therefore, if on one side the contract has been renewed, such a pact is said not to be valid. But it must be said that, when the father makes the pact and the adversary is released, the son also is incidentally released.
Si quam rem a te emi, eandem rursus a te pluris minorisve emero, discessimus a priore emptione ( potest enim, dum res integra est, conventione nostra infecta fieri emptio) atque ita consistit posterior emptio, quasi nulla praecesserit. sed non poterimus eadem ratione uti post pretium solutum emptione repetita, cum post pretium solutum infectam emptionem facere non possumus.
If I bought some thing from you, and again buy the same thing from you for more or for less, we have departed from the prior purchase (for, while the matter is still entire, by our convention the purchase can be made undone), and thus the later purchase stands as if none had preceded. But we shall not be able to use the same reasoning after the price has been paid upon a renewed purchase, since after the price is paid we cannot make the purchase undone.
Emptio et venditio sicut consensu contrahitur, ita contrario consensu resolvitur, antequam fuerit res secuta: ideoque quaesitum est, si emptor fideiussorem acceperit, vel venditor stipulatus fuerit, an nuda voluntate resolvatur obligatio. iulianus scripsit ex empto quidem agi non posse, quia bonae fidei iudicio exceptiones pacti insunt: an autem fideiussori utilis sit exceptio, videndum: et puto liberato reo et fideiussorem liberari. item venditorem ex stipulatu agentem exceptione summoveri oportet, idemque iuris esse, si emptor quoque rem in stipulationem deduxerit.
Purchase and sale, just as they are contracted by consent, so are they resolved by contrary consent, before any performance has ensued; and therefore the question was raised, if the buyer has taken a surety, or the seller has stipulated, whether by bare will the obligation is resolved. Julian wrote that an action on the purchase (ex empto) cannot, indeed, be brought, because in a good‑faith judgment exceptions of pact are included; but whether an available exception is given to the surety must be considered; and I think that, the debtor being released, the surety also is released. Likewise, a seller suing on the stipulation (ex stipulatu) ought to be removed by an exception; and the same law holds if the buyer too has brought the thing into a stipulation.
Cum emptor venditori vel emptori venditor acceptum faciat, voluntas utriusque ostenditur id agentis, ut a negotio discedatur et perinde habeatur, ac si convenisset inter eos, ut neuter ab altero quicquam peteret, sed ut evidentius appareat, acceptilatio in hac causa non sua natura, sed potestate conventionis valet.
When the buyer grants an acceptilation to the seller, or the seller to the buyer, the will of each is shown in doing this: namely, that there be a departure from the transaction and that it be regarded just as if it had been agreed between them that neither should demand anything from the other; but, that it may appear more clearly, acceptilation in this case has force not by its own nature, but by the power of the agreement (convention).
Si pupilli persona intervenit, qui ante sine tutoris auctoritate, deinde tutore auctore emit, quamvis venditor iam ei obligatus fuit, tamen quia pupillus non tenebatur, renovata venditio efficit, ut invicem obligati sint: quod si ante tutoris auctoritas intervenerit, deinde sine tutore auctore emit, nihil actum est posteriore emptione. idem potest quaeri, si sine tutoris auctoritate pactus fuerit, ut discedatur ab emptione: an proinde sit, atque si ab initio sine tutoris auctoritate emisset, ut scilicet ipse non teneatur, sed agente eo retentiones competant. sed nec illud sine ratione dicetur, quoniam initio recte emptio sit contracta, vix bonae fidei convenire eo pacto stari, quod alteri captiosum sit, et maxime, si iusto errore sit deceptus.
If the person of a ward intervenes, who first bought without the authority of his tutor, then with the tutor as author, although the seller was already obligated to him, nevertheless, because the ward was not bound, the sale, being renewed, brings it about that they are mutually obligated: but if the tutor’s authority had intervened first, and then he bought without the tutor as author, nothing is effected by the later purchase. The same can be asked if, without the tutor’s authority, he made a pact that there be a departure from the purchase: whether it is just as if he had from the beginning bought without the tutor’s authority, namely that he himself is not bound, but, when he is the actor, retentions are competent. But neither will this be said without reason, since the purchase was rightly contracted at the outset: it scarcely accords with good faith to stand by a pact which is captious to the other party, and especially if he was deceived by a just error.
Titius seii procurator defuncto seio ab eo scriptus heres, cum ignoraret, fundum vendente servo hereditario, quasi procurator subscripsit: quaesitum est, an cognito eo, priusquam emptio perficeretur, a venditione discedere possit. respondit titium, si non ipse vendidit, non idcirco actionibus civilibus teneri, quod servo vendente subscripserat, sed servi nomine praetoria actione teneri.
Titius, the procurator of Seius—Seius having died, having been written by him as heir—while he was unaware, the hereditary slave selling a farm, subscribed as though as procurator: it was asked whether, once this was known, before the purchase was perfected, he could withdraw from the sale. He replied that Titius, if he did not himself sell, is not on that account liable under civil actions because he had subscribed while the slave was selling, but is liable by a praetorian action in the name of the slave.
Fundus qui lucii titii erat ob vectigale rei publicae veniit: sed cum lucius titius debitor professus esset paratum se esse vectigal exsolvere solidum, cum minore venisset fundus, quam debita summa esset, praeses provinciae rescindit ^ rescidit^ venditionem eumque restitui iussit lucio titio: quaesitum est, an post sententiam praesidis, antequam restitueretur, in bonis lucii titii fundus emptus esset. respondit non prius, quam emptori pretium esset illatum vel, si pretium nondum esset ab emptore solutum, in vectigal satisfactum esset.
A fundus that had been Lucius Titius’s was sold on account of a public vectigal; but since Lucius Titius, having acknowledged himself debtor, had declared that he was prepared to pay the vectigal in full, as the fundus had been sold for less than the sum owed, the governor of the province rescinds ^ rescinded^ the sale and ordered it to be restored to Lucius Titius. It was asked whether, after the governor’s sentence, before it was restored, the purchased fundus was in the goods of Lucius Titius. He replied: not before either the price had been tendered to the purchaser, or, if the price had not yet been paid by the purchaser, satisfaction had been made for the vectigal.
Seius a lucio titio emit fundum lege dicta, ut, si ad diem pecuniam non solvisset, res inempta fieret. seius parte pretii praesenti die soluta, defuncto venditore, filiis eius pupillaris aetatis et ipse tutor cum aliis datus, neque contutoribus pretium secundum legem numeravit nec rationibus tutelae rettulit: quaesitum est, an irrita emptio facta esset. respondit secundum ea quae proponerentur inemptam videri.
Seius bought a fundus from Lucius Titius under a stated term, that, if he had not paid the money by the day, the thing would be unbought. Seius, with part of the price paid in cash on the day, the seller having died, his sons being of pupillary age, and he himself appointed as tutor together with others, neither paid to his co-guardians the price according to the term nor entered it in the accounts of the guardianship: it was asked whether the purchase had become void. He responded that, according to the matters proposed, it appeared unbought.
Emptor praediorum cum suspicaretur numeriam et semproniam controversiam moturas, pactus est cum venditore, ut ex pretio aliqua summa apud se maneret, donec emptori fideiussor daretur a venditore: postea venditor eam legem inseruit, ut, si ex die pecunia omnis soluta non esset et venditor ea praedia venisse nollet, invendita essent: interea de adversariis alteram mulierem venditor superavit, cum altera transegit, ita ut sine ulla quaestione emptor praedia possideret: quaesitum est, cum neque fideiussor datus est nec omnis pecunia secundum legem suis diebus soluta sit, an praedia invendita sint. respondit, si convenisset, ut non prius pecunia solveretur quam fideiussor venditi causa daretur, nec id factum esset, cum per emptorem non staret quo minus fieret, non posse posteriorem legis partem exerceri.
A buyer of estates, when he suspected that Numeria and Sempronia were going to set a controversy in motion, made an agreement with the seller that some sum out of the price should remain with him until a surety was given to the buyer by the seller: afterwards the seller inserted this clause, that, if by the day the whole money had not been paid and the seller should be unwilling that those estates had been sold, they would be unsold: meanwhile, of the adversaries the seller defeated one of the women, with the other he settled, on terms such that the buyer would possess the estates without any question: the question was asked, since neither has a surety been given nor has all the money been paid according to the clause on its due days, whether the estates are unsold. He answered that, if it had been agreed that the money should not be paid before a surety for the thing sold was given, and that had not been done, since it did not depend on the buyer that it was not done, the later part of the clause cannot be enforced.
Si vinum venditum acuerit vel quid aliud vitii sustinuerit, emptoris erit damnum, quemadmodum si vinum esset effusum vel vasis contusis vel qua alia ex causa. sed si venditor se periculo subiecit, in id tempus periculum sustinebit, quoad se subiecit: quod si non designavit tempus, eatenus periculum sustinere debet, quoad degustetur vinum, videlicet quasi tunc plenissime veneat, cum fuerit degustatum. aut igitur convenit, quoad periculum vini sustineat, et eatenus sustinebit, aut non convenit et usque ad degustationem sustinebit.
If wine that has been sold has turned sour or has sustained some other defect, the loss will be the buyer’s, just as if the wine had been spilled or the vessels shattered, or from any other cause. But if the seller has subjected himself to the peril, he will bear the peril for that period to which he subjected himself; and if he did not designate a time, he ought to bear the peril until the wine is tasted, namely as though it is then most fully sold when it has been tasted. Therefore, either it has been agreed how long he shall bear the peril of the wine, and he will bear it to that extent; or it has not been agreed, and he will bear it up to the tasting.
Sed et custodiam ad diem mensurae venditor praestare debet: priusquam enim admetiatur vinum, prope quasi nondum venit. post mensuram factam venditoris desinit esse periculum: et ante mensuram periculo liberatur, si non ad mensuram vendidit, sed forte amphoras vel etiam singula dolia.
But also the vendor ought to provide custody up to the day of measurement: for before the wine is measured out, it is almost as if it has not yet come. After the measurement has been made, the risk ceases to be the vendor’s: and before the measurement he is freed from the peril, if he did not sell by measure, but perhaps by amphorae or even by single casks.
Licet autem venditori vel effundere vinum, si diem ad metiendum praestituit nec intra diem admensum est: effundere autem non statim poterit, priusquam testando denuntiet emptori, ut aut tollat vinum aut sciat futurum, ut vinum effunderetur. si tamen, cum posset effundere, non effudit, laudandus est potius: ea propter mercedem quoque doliorum potest exigere, sed ita demum, si interfuit eius inania esse vasa in quibus vinum fuit ( veluti si locaturus ea fuisset) vel si necesse habuit alia conducere dolia. commodius est autem conduci vasa nec reddi vinum, nisi quanti conduxerit ab emptore reddatur, aut vendere vinum bona fide: id est quantum sine ipsius incommodo fieri potest operam dare, ut quam minime detrimento sit ea res emptori.
However, it is permitted to the seller even to pour out the wine, if he appointed a day for measuring and it was not measured within the day: yet he will not be able to pour it out immediately, before he, by attestation, gives notice to the buyer, that either he should remove the wine or should know that it will come about that the wine be poured out. If, however, when he could pour it out, he did not pour it out, he is rather to be praised: on that account he can also exact the hire of the casks, but only then, if it was to his interest that the vessels in which the wine was be empty ( veluti if he was going to lease them out) or if he had necessity to hire other casks. It is more expedient, moreover, that the vessels be hired and the wine not be delivered, unless what amount he hired them for be repaid by the buyer, or to sell the wine in good faith: that is, to give effort, as far as it can be done without his own inconvenience, so that that matter be with as little detriment as possible to the buyer.
Si doliare vinum emeris nec de tradendo eo quicquam convenerit, id videri actum, ut ante evacuarentur quam ad vindemiam opera eorum futura sit necessaria: quod si non sint evacuata, faciendum, quod veteres putaverunt, per corbem venditorem mensuram facere et effundere: veteres enim hoc propter mensuram suaserunt, si, quanta mensura esset, non appareat, videlicet ut appareret, quantum emptori perierit.
If you buy wine in dolia and nothing has been agreed about delivering it, it is considered to have been arranged that they be emptied before the vintage, when their use will be necessary: but if they have not been emptied, what the ancients thought must be done—namely, that the seller, by means of a basket, take the measure and pour it out. For the ancients recommended this on account of the measure, if it is not apparent how large the measure was, namely so that it might appear how much has perished to the buyer.
Si quis vina vendiderit et intra diem certum degustanda dixerit, deinde per venditorem steterit, quo minus degustarentur, utrum praeteritum dumtaxat periculum acoris et mucoris venditor praestare debet, an vero etiam die praeterito ( ut, si forte corrupta sint posteaquam dies degustandi praeteriit, periculum ad venditorem pertineat), an vero magis emptio sit soluta ( quasi sub condicione venierint, hoc est si ante diem illum fuissent degustata)? et intererit, quid actum sit: ego autem arbitror, si hoc in occulto sit, debere dici emptionem manere, periculum autem ad venditorem respicere etiam ultra diem degustando praefinitum, quia per ipsum factum est.
If someone should sell wines and should have said that they were to be tasted within a fixed day, then it having stood by the vendor that they were not tasted, whether the vendor ought to make good only the past peril of sourness and mold, or rather even after the day has passed (so that, if perchance they are corrupted after the day of tasting has passed, the peril pertains to the vendor), or rather more that the purchase is dissolved (as if they had been sold under a condition, that is, if they had been tasted before that day)? And it will make a difference what was transacted: however, I judge that, if this is hidden, it should be said that the purchase remains, but the peril looks to the vendor even beyond the day prescribed for tasting, because it was brought about by him.
Si aversione vinum venit, custodia tantum praestanda est. ex hoc apparet, si non ita vinum venit, ut degustaretur, neque acorem neque mucorem venditorem praestare debere, sed omne periculum ad emptorem pertinere: difficile autem est, ut quisquam sic emat, ut ne degustet. quare si dies degustationi adiectus non erit, quandoque degustare emptor poterit et quoad degustaverit, periculum acoris et mucoris ad venditorem pertinebit: dies enim degustationi praestitutus meliorem condicionem emptoris facit.
If wine is sold by aversion (per aversionem, as a whole), only custody is to be provided. From this it appears that, if the wine is not sold on terms that it be tasted, the seller ought to warrant neither sourness nor mold, but all risk pertains to the buyer: however, it is unlikely that anyone would buy on such terms as not to taste. Therefore, if a day is not added for tasting, whenever the buyer can taste, and until he has tasted, the risk of sourness and mold will pertain to the seller: for a day appointed for tasting makes the buyer’s condition better.
Vino autem per aversionem vendito finis custodiae est avehendi tempus. quod ita erit accipiendum, si adiectum tempus est: ceterum si non sit adiectum, videndum, ne infinitam custodiam non debeat venditor. et est verius secundum ea quae supra ostendimus, aut interesse, quid de tempore actum sit, aut denuntiare ei, ut tollat vinum: certe antequam ad vindemiam fuerint dolia necessaria, debet avehi vinum.
But when wine has been sold in gross (per aversionem), the terminus of custody is the time for carrying it away. This is to be understood thus, if a time has been added; but if no time was added, care must be taken that the seller not owe an infinite custody. And it is more correct, according to what we have shown above, either that it matters what was agreed concerning the time, or that notice be given to him to remove the wine: certainly, before the jars (dolia) are needed for the vintage, the wine ought to be carried away.
Si per emptorem steterit, quo minus ad diem vinum tolleret, postea, nisi quod dolo malo venditoris interceptum esset, non debet ab eo praestari. si verbi gratia amphorae centum ex eo vino, quod in cella esset, venierint, si admensum est, donec admetiatur, omne periculum venditoris est, nisi id per emptorem fiat.
If it has been on the buyer’s side that he did not take away the wine by the day, thereafter nothing ought to be made good by the seller, unless something had been intercepted by the seller’s dolus malus (fraud). If, for example, a hundred amphorae out of that wine which was in the cellar have been sold, if it is sold ad mensuram (by measure), until it is measured out, all the peril is the seller’s, unless that comes about through the buyer.
Si vina emerim exceptis acidis et mucidis et mihi expediat acida quoque accipere, proculus ait, quamvis id emptoris causa exceptum sit, tamen acida et mucida non venisse: nam quae invitus emptor accipere non cogeretur, iniquum esse non permitti venditori vel alii ea vendere.
If I should buy wines with the sour and musty excepted, and it be expedient for me to accept the sour ones also, Proculus says that although that was excepted for the buyer’s sake, nevertheless the sour and the musty were not sold: for as to things which the buyer, being unwilling, would not be compelled to accept, it is inequitable not to permit the vendor or another to sell them.
Quod venditur, in modum agri cedere debet, nisi si id actum est, ne cederet. at quod non venit, in modum cedendum, si id ipsum actum est, ut cederet, veluti viae publicae, limites, luci qui fundum tangunt: cum vero neutrum dictum est, cedere non debet, et ideo nominatim caveri solet, ut luci, viae publicae, quae in fundo sint, totae in modum cedant.
What is sold ought to cede in the manner of the field (i.e., to pass as appurtenant to the land), unless it was agreed that it should not cede. But what is not sold is to cede in the manner, if that very thing has been agreed, that it should cede, for example public roads, boundary-strips (limites), groves (luci) that touch the estate: but when neither has been stated, it ought not to cede, and therefore it is customary to provide expressly by name that the groves and the public roads which are on the estate should all cede in the manner (pass as appurtenances).
Necessario sciendum est, quando perfecta sit emptio: tunc enim sciemus, cuius periculum sit: nam perfecta emptione periculum ad emptorem respiciet. et si id quod venierit appareat quid quale quantum sit, sit et pretium, et pure venit, perfecta est emptio: quod si sub condicione res venierit, si quidem defecerit condicio, nulla est emptio, sicuti nec stipulatio: quod si exstiterit, proculus et octavenus emptoris esse periculum aiunt: idem pomponius libro nono probat. quod si pendente condicione emptor vel venditor decesserit, constat, si exstiterit condicio, heredes quoque obligatos esse quasi iam contracta emptione in praeteritum.
It must necessarily be known when the purchase is perfected: for then we shall know to whom the peril belongs; for, the purchase being perfected, the peril will attach to the buyer. And if that which has been sold is apparent as to what it is, of what sort, and how much, and there is a price, and it is sold purely (i.e., unconditionally), the purchase is perfected. But if the thing has been sold under a condition, if indeed the condition fails, there is no purchase, just as neither is there a stipulation; but if it comes to pass, Proculus and Octavenus say that the peril is the buyer’s: Pomponius approves the same in the ninth book. And if, while the condition is pending, the buyer or the seller has died, it is agreed that, if the condition comes to pass, the heirs also are bound as though the purchase had already been contracted retroactively.
But if, while the condition is pending, the thing has been delivered, the buyer will not be able to acquire it by usucapion as purchaser. And what of the price has been paid will be recovered, and the fruits of the intervening time are the seller’s (just as conditional stipulations and legacies are extinguished), if while the condition is pending the thing has perished: indeed, if the thing still exists, although rendered worse, it can be said to be the buyer’s loss.
Cum usum fructum mihi vendis, interest, utrum ius utendi fruendi, quod solum tuum sit, vendas, an vero in ipsum corpus, quod tuum sit, usum fructum mihi vendas: nam priore casu etiamsi statim morieris, nihil mihi heres tuus debebit, heredi autem meo debebitur, si tu vivis: posteriore casu heredi meo nihil debebitur, heres tuus debebit.
When you sell me a usufruct, it matters whether you sell the right of using and enjoying, which alone is yours, or indeed whether you sell to me the usufruct in the very corpus which is yours: for in the former case, even if you should die immediately, your heir will owe me nothing; but it will be owed to my heir if you are alive; in the latter case, nothing will be owed to my heir; your heir will owe.
Si post inspectum praedium, antequam emptio contraheretur, arbores vento deiectae sunt, an hae quoque emptori tradi debeant, quaeritur: et responsum est non deberi, quia eas non emerit, cum ante, quam fundum emerit, desierint fundi esse. sed si ignoravit emptor deiectas esse arbores, venditor autem scit nec admonuit, quanti emptoris interfuerit rem aestimandam esse, si modo venit.
If, after the estate had been inspected, but before the purchase was contracted, the trees were thrown down by the wind, the question is raised whether these too ought to be delivered to the buyer: and the answer was that they are not owed, because he did not buy them, since, before he bought the farm, they had ceased to belong to the farm. But if the buyer did not know that the trees had been thrown down, while the seller knew and did not warn, the matter is to be assessed at the amount of the buyer’s interest, provided only that the action lies.
Si vendita insula combusta esset, cum incendium sine culpa fieri non possit, quid iuris sit? respondit, quia sine patris familias culpa fieri potest neque, si servorum neglegentia factum esset, continuo dominus in culpa erit, quam ob rem si venditor eam diligentiam adhibuisset in insula custodienda, quam debent homines frugi et diligentes praestare, si quid accidisset, nihil ad eum pertinebit.
If a tenement having been sold were burned, since a fire cannot occur without fault, what is the law? He answered that it can occur without the fault of the paterfamilias, nor, if it were brought about by the negligence of slaves, will the master straightway be at fault; wherefore, if the seller had applied that diligence in guarding the tenement which frugal and diligent men ought to furnish, if anything had happened, nothing would pertain to him (he would not be liable).
Si vina quae in doliis erunt venierint eaque, antequam ab emptore tollerentur, sua natura corrupta fuerint, si quidem de bonitate eorum adfirmavit venditor, tenebitur emptori: quod si nihil adfirmavit, emptoris erit periculum, quia sive non degustavit sive degustando male probavit, de se queri debet. plane si, cum intellegeret venditor non duraturam bonitatem eorum usque ad in eum diem quo tolli deberent, non admonuit emptorem, tenebitur ei, quanti eius interesset admonitum fuisse.
If wines that are in casks have been sold, and, before they were taken away by the purchaser, they were spoiled by their own nature, then if the vendor affirmed their goodness, he will be liable to the purchaser; but if he affirmed nothing, the peril will be the purchaser’s, because whether he did not taste or, by tasting, judged ill, he must complain of himself. Clearly, if, when the vendor understood that their goodness would not endure until the day on which they ought to be removed, he did not admonish the purchaser, he will be liable to him for as much as it was in his interest to have been warned.
Servi emptor si eum conductum rogavit, donec pretium solveret, nihil per eum servum adquirere poterit, quoniam non videtur traditus is, cuius possessio per locationem retinetur a venditore. periculum eius servi ad emptorem pertinet, quod tamen sine dolo venditoris intervenerit.
If the buyer of a slave has asked that he be hired out, then until he pays the price he will be able to acquire nothing through that slave, since he is not regarded as delivered, his possession being retained by the seller through the lease. The risk of that slave pertains to the buyer, provided that it occurred without the seller’s fraud.
Illud sciendum est, cum moram emptor adhibere coepit, iam non culpam, sed dolum malum tantum praestandum a venditore. quod si per venditorem et emptorem mora fuerit, labeo quidem scribit emptori potius nocere quam venditori moram adhibitam, sed videndum est, ne posterior mora damnosa ei sit. quid enim si interpellavero venditorem et non dederit id quod emeram, deinde postea offerente illo ego non acceperim?
It must be understood that, when the buyer has begun to apply delay (mora), the seller is thereafter answerable not for fault (culpa) but only for fraud (dolus malus). But if there is delay through both seller and buyer, Labeo indeed writes that the delay employed harms the buyer rather than the seller; yet it must be considered, lest the later delay be damaging to him. For what if I have interpellated the seller and he has not delivered what I bought, and then afterwards, when he offered it, I did not accept?
Venditori si emptor in pretio solvendo moram fecerit, usuras dumtaxat praestabit, non omne omnino, quod venditor mora non facta consequi potuit, veluti si negotiator fuit et pretio soluto ex mercibus plus quam ex usuris quaerere potuit.
If the buyer has caused delay in paying the price, he shall render interest only, not absolutely everything which the seller, had no delay occurred, could have obtained—for example, if he was a negotiator (merchant) and, the price having been paid, could have gained from the goods more than from interest.
Si minor viginti annis servum tibi in hoc vendiderit et tradiderit, ut eum manumitteres, nullius momenti est traditio, quamquam ea mente tradiderit, ut, cum viginti annos ipse explesset, manumitteres: non enim multum facit, quod distulit libertatis praestationem: lex quippe consilio eius quasi parum firmo restitit.
If one under 20 years has sold and delivered a slave to you for this purpose, that you manumit him, the delivery is of no moment, although he delivered with the intention that, when he himself had completed 20 years, you would manumit: for it matters little that he deferred the prestation of freedom; for the law, to be sure, has resisted his counsel as, as it were, insufficiently firm.
Cui pacto venditoris pomerio cuiuslibet civitatis interdictum est, urbe etiam interdictum esse videtur. quod quidem alias cum principum mandatis praeciperetur, etiam naturalem habet intellectum, ne scilicet qui careret minoribus, fruatur maioribus.
By a pact by which the seller has been interdicted from the pomerium of any city, he is seen to be interdicted from the city itself as well. Which, indeed, although elsewhere it has been prescribed together with the mandates of the princes, also has a natural understanding: namely, that he who is deprived of the lesser should not enjoy the greater.
Si venditor ab emptore caverit, ne serva manumitteretur neve prostituatur, et aliquo facto contra quam fuerat exceptum evincatur aut libera iudicetur, et ex stipulatu poena petatur, doli exceptionem quidam obstaturam putant, sabinus non obstaturam. sed ratio faciet, ut iure non teneat stipulatio, si ne manumitteretur exceptum est: nam incredibile est de actu manumittentis ac non potius de effectu beneficii cogitatum. ceterum si ne prostituatur exceptum est, nulla ratio occurrit, cur poena peti et exigi non debeat, cum et ancillam contumelia adfecerit et venditoris affectionem, forte simul et verecundiam laeserit: etenim alias remota quoque stipulatione placuit ex vendito esse actionem, si quid emptor contra quam lege venditionis cautum est fecisset aut non fecisset.
If the seller has taken security from the buyer that the female slave is not to be manumitted nor prostituted, and by some act, contrary to what had been excepted, something is effected, or she is adjudged free, and a penalty is sought ex stipulatu, some think the defense of fraud (the exceptio doli) will bar it, Sabinus thinks it will not. But reason will make it that the stipulation does not hold in law if it was excepted that she not be manumitted: for it is unbelievable that the thought was about the act of manumitting and not rather about the effect of the beneficium. On the other hand, if it was excepted that she not be prostituted, no reason occurs why the penalty should not be sought and exacted, since he has visited the handmaid with an outrage and has injured the seller’s affection, perhaps at the same time his modesty as well: indeed, moreover, even with the stipulation removed it has been approved that there is an action ex vendito if the buyer has done or not done anything contrary to what was provided by the law of the sale.
Nobis aliquando placebat non alias ex vendito propter poenam homini irrogatam agi posse, quam si pecuniae ratione venditoris interesset, veluti quod poenam promisisset: ceterum viro bono non convenire credere venditoris interesse, quod animo saevientis satisfactum non fuisset. sed in contrarium me vocat sabini sententia, qui utiliter agi ideo arbitratus est, quoniam hoc minoris homo venisse videatur.
At one time it pleased us to hold that no action ex vendito could be brought on account of a penalty inflicted on a man, except if it were a matter of the seller’s pecuniary interest, as, for example, because he had promised a penalty; moreover, it did not befit a good man to believe that it was in the seller’s interest that satisfaction had not been given to a wrathful mind. But the opinion of Sabinus calls me to the contrary, who judged that an action could usefully be brought for this reason, since on that account the slave seems to have been sold for a lesser price.
Servus ea lege veniit, ne in italia esset: quod si aliter factum esset, convenit citra stipulationem, ut poenam praestaret emptor. vix est, ut eo nomine vindictae ratione venditor agere possit, acturus utiliter, si non servata lege in poenam quam alii promisit inciderit. huic consequens erit, ut hactenus agere possit, quatenus alii praestare cogitur: quidquid enim excedit, poena, non rei persecutio est.
A slave was sold on this condition, that he should not be in Italy: but if it had been done otherwise, it is agreed, even without a stipulation, that the buyer should render a penalty. It is scarcely the case that on that ground the seller can sue by way of punishment; he will sue by a useful action, if, the condition not having been observed, he has fallen into the penalty which he promised to another. It will follow for this person that he can sue only so far as he is compelled to render to the other: for whatever exceeds is a penalty, not reipersecutory recovery.
But if it was agreed, so that he not be exported for the sake of the penalty, it will also be rightly actionable by the rationale of affection. Nor do these appear to be mutually contrary, since it is in a man’s interest that a man be affected with beneficence; indeed, indignation at a penalty not imposed contains mere hardness.
Quaesitum est, si quis proprium servum vendidisset et ut manumitteretur intra certum tempus, praecepisset ac postea mutasset voluntatem et emptor nihilo minus manumisisset, an aliquam eo nomine actionem haberet. dixi ex vendito actionem manumisso servo vel mutata venditoris voluntate evanuisse.
It was asked, if someone had sold his own slave and had prescribed that he be manumitted within a fixed time, and afterwards had changed his intention, and the buyer nonetheless had manumitted him, whether he had any action on that account. I said that the action ex vendito had vanished, the slave having been manumitted, or the seller’s intention having been changed.
Titius servum vendidit ea lege, ut, si romae moratus esset, manus inicere liceret: emptor alii eadem lege vendidit: servus fugit a secundo emptore et romae moratur: quaero, an sit manus iniectio et cui. respondi: in fugitivo non est dubitandum nihil contra legem factum videri, quia nec domino auferre se potest nec qui in fuga est ibi moratur. quod si ex voluntate secundo emptoris contra legem moratus sit, potior habendus est qui auctor fuit legis, et posterior magis admonendi emptoris et liberandi se eandem legem repetierit nec poterit aliquo modo auferre legem sui venditoris cuius condicio exstitit: nam et si poenam promisisset, tenetur, licet ipse quoque stipulatus esset: sed in poena promissa duae actiones sunt, manus autem iniectio in servum competit.
Titius sold a slave on this condition (lex), that, if he should stay at Rome, it would be permitted to lay hands upon him; the buyer sold him to another on the same condition; the slave fled from the second buyer and is staying at Rome: I ask whether there is hand-laying (manus iniectio), and for whom. I answered: in the case of a fugitive, one must not doubt that nothing seems to have been done against the condition, because he can neither withdraw himself from his master, nor does one who is in flight “stay” there. But if, by the will of the second buyer, he has stayed contrary to the condition, he who was the author of the condition is to be held the stronger; and the later seller, having more cause to admonish his buyer and to free himself, will invoke the same condition, nor will he be able in any way to take away the condition of his own seller, whose stipulation has come to pass. For even if he had promised a penalty, he is liable, although he too had stipulated; but where a penalty has been promised there are two actions, whereas hand-laying (manus iniectio) upon the slave lies.
but if the first sold on such a term, that, if she were prostituted, she would be free; the later, that it would be permitted to apply manus iniectio, freedom is stronger than manus iniectio. Clearly, if the earlier clause should have manus iniectio, the later freedom, it will be said more favorably that she will be free, since each condition is added in regard to the slave-woman, and just as manus iniectio, so freedom removes that injury.
Cum venderet pamphilam et stichum, venditioni inseruit pactum conventum, uti ne eadem mancipia pamphila et stichus, quos minorato pretio vendidit, alterius servitutem quam seii paterentur post mortemque eius in libertate morarentur: quaesitum est, an haec mancipia, de quibus inter emptorem et venditorem convenit, post mortem emptoris iure ipso liberata sint. respondit secundum constitutionem divi hadriani super hoc prolatam pamphilam et stichum, de quibus quaereretur, si manumissi non sint, liberos non esse. claudius: divus marcus ex lege dicta libertatis in vendendo quamvis non manumissos fore liberos in semenstribus constituit, licet in mortis tempus emptoris distulit venditor libertatem.
When he was selling Pamphila and Stichus, he inserted into the sale an agreed pact, that the same slaves, Pamphila and Stichus, whom he sold at a reduced price, should not undergo the servitude of anyone other than Seius, and that after his death they should abide in freedom: it was asked whether these slaves, about whom it was agreed between the buyer and the seller, were by the law itself freed after the buyer’s death. He answered that, according to the constitution of the deified Hadrian brought forward on this point, Pamphila and Stichus, about whom the question was asked, if they have not been manumitted, are not free. Claudius: the deified Marcus, from the law called the “declared liberty in selling,” established in the semiannual sessions that, although not manumitted, they would be free, although the seller had deferred the liberty to the time of the buyer’s death.