In a sale of lands the seller is subject to certain obligations without express mention, e.g. to warrant against eviction from the lands or the usufruct: to certain others he is subject only by express undertaking, e.g. to indemnify for a right of way, of passage, of driving, or of conducting water over the lands and the same holds of servitudes over urban estates.

1. If the estate sold had a servitude right attached to it, and the seller has not informed the buyer but has knowingly concealed it, in consequence of which the purchaser has lost the servitude by non-user for the prescriptive period, it is rightly held by some that the seller is amenable to the action on purchase on account of his bad faith.

2. Quintus Mucius remarks that it is tautology to employ this style, 'what is dug up and cut down, and all that does not pertain to the house or lands,' for it is just what can be dug up or cut that does not belong to the house or lands.

When we alienate anything, we transfer the ownership to another with all the accessories that would have attached to it if it had remained in our hands: this holds good in the whole (seu uincta) fixaque as 'moveables' are to 'fixtures' with us. The above definition is not quite correct, at least for the classical law, e.g. dung and straw went to the purchaser with the lands (D. 19. 1. 17, § 2); see ib. § 6, where Ulpian gives examples of ruta caesa.

Though a clause of reservation was not necessary, it was very often employed: Cic. Topic. c. 26: fecique quod saepe liberales uenditores facere solent, ut quum aedes fundumue uendiderint rutis caesis receptis, concedant tamen aliquod emptori quod ornandi causa apte et loco positum uideatur.

Mommsen would insert si before qui scribsit, and habere after scriptum.

L. 67.-Alienatio is here equal to transfer of property (see p. 9). Cp. D. 41. 1. 20, 1 : Quotiens autem dominium transfertur, ad eum qui accipit tale transfertur, quale fuit apud eum qui tradit.

toto iure ciuili ita se habet, praeterquam si aliquid nominatim sit constitutum.

68. PROCULUS libro vi epistularum.

Si, cum fundum uenderes, 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. 1. Fere aliqui1 solent haec uerba adicere: 'dolus malus a uenditore aberit,' qui etiam si adiectum non est, abesse debet.

Cum sua causa contains a reference to burdens as well as advantages (C. iv. 49. 13). It includes all accessions that have not been reserved. Pothier, § 47.

L. 68 pr.-See D. 19. 1. 13, 16; ib. 53 pr.

§ 1. Dolus has somewhat different meanings in different departments of law. The most general notion is that of deliberate intention, an evil animus directed to an infraction of the law or an offence against good conscience. In the sphere of contract the Romans made bona fides so prominent an idea that there is always an implied warranty against dolus, which is really the antithesis of it, and covers any trickery or treachery inconsistent with the confidence necessary to social life. This may take the form of false or misleading representations, or of dishonest concealment (see pp. 92, 115). It may be deception intended to influence the other party's motives, to capture his consent by surprise, or it may be actual circumvention employed to overreach another. Labeo gave a definition which Ulpian accepts as correct: Dolum malum esse omnem calliditatem fallaciam machinationem ad circumueniendum fallendum decipiendum alterum adhibitam (D. 4. 3. 2). It is in general best rendered by 'dole' or 'fraud,' though sometimes the idea is more exactly given by bad faith' as opposed to good faith, by 'cheating' as opposed to honesty, or by 'intentionally' as opposed to mistakenly.

If the fraud consists in inducing another to believe in the existence of some essential of the contract which does not really exist, as in the fraudulent sale of a res extra commercium, the contract is a nullity because an element essential to its validity 1 nequiquam? (Mom.)

range of the common law in the absence of any special arrange

ment.

68. PROCULUS.

If you state in the conditions of sale of a farm that all the rent you may collect from the lessee shall belong to the purchaser, you are bound, in my opinion, to be diligent as well as honest in collecting it—that is to say, you are answerable for fault as well as bad faith.

1. It is the practice of some to stipulate expressly that there shall be no bad faith on the part of the vendor,' but he is responsible for bad faith independently of such a clause.

is wanting, and the fraud serves only to let in a claim for damages. But if a contract be prima facie unobjectionable, is proof of fraud sufficient to invalidate it? In this connection the older civilians used to distinguish between dolus causam dans (fraud which gave rise to the contract, without which it would not have been made) and dolus incidens (fraud which was not the inductive cause, but an accompaniment of the contract); the former was held to avoid the contract absolutely, the latter merely to ground a claim for damages. The distinction is not formulated in the texts, but was thought to be implied in such passages as D. 19. 1. 11, 5 and D. 4. 3. 7, contrasted with D. 19. 1. 13, 4. Pothier, Obl. § 31. But the modern civilians have in general abandoned this position. They lay it down that fraud does not ipso iure annul a bonae fidei contract at all, there being an actual assent of the will, though induced by fraudulent means; but it entitles the party defrauded to bring an action on the contract for indemnification, a remedy the effects of which will vary with the circumstances of the case. If, for instance, the fraud attaches merely to a modality of the contract (as in D. 19. 1. 13, 4), an award of damages will be given; but if the contract would never have been entered into at all but for the fraud, it will be rescinded in the interest of the sufferer by the fraud (D. d. t. 11, 5). Instances of a contract-suit for damages for fraud occur in D. 4. 3. 9; D. 19. 1. 4 pr.; ib. 6, 9; ib. 30, 1: in the following places it is brought to set aside the transaction, C. iv. 44. 5, 8 and 10; C. viii. 28. 10; D. 19. 2. 23. On the old doctrine the anomalous result would be reached that action is

2. Nec uidetur abesse, si per eum factum est aut fiet, quo minus fundum emptor possideat. erit ergo ex empto actio, non ut uenditor uacuam possessionem tradat, cum multis modis accidere poterit, ne tradere possit, sed ut, si quid dolo malo fecit aut facit, dolus malus eius aestimaretur.

69. PROCULUS libro XI epistularum.

Rutilia Polla emit lacum Sabatenem Angularium et circa eum maintainable on a contract which is ab initio a nullity. See, for a full argument, Vangerow, § 605, where the circumstances under which redress was obtainable by (1) a suit on the contract, or (2) exceptio doli, or (3) actio doli, are also explained. The special title De dolo is D. iv. tit. 3.

As to the idea of fraud in connection with contract in English law, see dicta cited on p. 54 supra. The distinction above mentioned has no place, except in the sense that it is only material fraud (dolus dans causam) that founds any claim for relief. The purchaser, if he has been induced to enter into the contract by the fraudulent misrepresentations or concealment of the vendor, may at his option rescind the contract within a reasonable time, provided that it is still possible to restore the parties to their original position, and that no third parties have in good faith and for value acquired rights under the contract; or, instead of rescinding, or where the right to rescind is lost in one of the above ways, he may stand to the contract and claim damages in an action of deceit. See Benj. p. 432 sq.

Some of the older Scotch authorities certainly do recognise the distinction between dolus causam dans as grounding an action for reducing the contract and dolus incidens as giving relief by damages only; but, though the expressions are still in use as synonyms for material and non-material fraud, the rule of law. must now be held to be that fraud of the latter kind has no legal effect. Bell, Com. i. 262; Prin, §§ 13, 14, with the editors' notes. There must be material fraud, i.e. fraud inducing the contract, in order to entitle to relief even by damages. When there is such fraud, the party defrauded has a choice of remedies so long as matters are entire: the contract is not void, but voidable at his option, on condition that restitutio in integrum is still possible, and that the rights onerously acquired by third

2. The vendor is guilty of fraud if it has been or is due to him that the purchaser has not obtained possession of the land. An action on purchase will therefore lie, not to compel the vendor to hand over the exclusive possession, for there are many causes which may render that impossible, but for the purpose of fixing the damages for any breach of good faith, past or present.

69. PROCULUS.

Rutilia Polla bought the lake Sabatenes Angularius and ten parties in good faith would not be defeated by its rescission; if reduction is barred, or in any case if he prefers the alternative remedy, he has his action to recover the damage he has sustained by reason of the fraud. There is thus substantial agreement between Scots and English law as to the effect of fraudulent representations giving rise to a contract for the sale of goods, as was assumed in Houldsworth v. Glasgow Bank (1880) 5 App. Ca. at p. 323. Hence, though the actio quanti minoris is rejected by the law of Scotland generally both in the case of heritage and of moveables, there seems to be an exception where fraud is proved; that is to say, the buyer may retain the goods and claim an abatement of the price in respect of the fraudulent representations of the vendor (Amaan v. Handyside (1865) 3 Macp. 526; Dobbie v. Duncanson (1872) 10 Macp. 810). This is contrary to the general rule, which is that, where goods are delivered disconform to contract, the buyer must return them without delay, or at least reject them by some distinct act, otherwise he is held to be satisfied and must pay the full price. Bell, Prin. §.99. In England the actio quanti minoris is allowed generally, so that the buyer, though he has accepted the goods and though no fraud is alleged, may set up against the seller a breach of warranty in diminution or extinction of the price. See S. G. B. § 54.

§ 2. Proculus seems to rest the seller's obligation to deliver (tradere) on the basis of the implied warranty against fraud. But he must not be taken to mean that the seller satisfied his obligation by showing that, through no default of his, it had become impossible for him to give full legal possession; that would be contrary to what is stated in D. 19. 1. 2 and 3. Cp. L. 25 supra.

L. 69. Various guesses have been made at the meaning of Angularius, as 'angular in shape' 'lying in a bend,' etc.