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lacum pedes decem: quaero, numquid et decem pedes, qui tunc accesserunt, sub aqua sint, quai lacus creuit, an proximi pedes decem ab aqua Rutiliae Pollae iuris sint. Proculus respondit : ego existiino eatenus lacum, quem emit Rutilia Polla, uenisse, quatenus tunc fuit, et circa eum decem pedes qui tunc fuerunt, nec ob eam rem, quod lacus postea creuit, latius eum possidere debet quam emit.
70. LICINNIUS RUFINUS libro vili regularum. Liberi hominis emptionem contrahi posse plerique existimauerunt, si modo inter ignorantes id fiat. quod idem placet etiam, si uenditor sciat, emptor autem ignoret. quod si emptor sciens liberum esse emerit, nulla emptio contrahitur.
PAPIRIUS IUSTUS libro I constitutionum. Imperatores Autoninus et Uerus Augusti Sextio Uero in haec uerba rescripserunt: quibus mensuris aut pretiis negotiatores uina compararent, in contrahentium potestate esse : neque enim quisquam cogitur uendere, si aut pretium aut mensura displiceat, praesertim si nihil contra consuetudinem regionis fiat.
72. PAPINIANUS libro x quaestionum. Pacta conuenta, quae postea facta detrahunt aliquid emptioni,
L. 70.-The sale was valid to the effect of grounding an actio empti. See note on p. 15 supra. The words plerique existimauerunt imply that this conclusion was not reached without some hesitation; the younger Celsus was the first to put forward the view, so far as we know (L. 6 pr.). Cp. D. 40. 13. 4.
L. 71.—It appears from D. 4. 3. 18, 3 that if the bargain bore expressly that the goods were to be weighed by a particular set of weights, there was nothing illegal in that, though the weights were light or heavy. The last clause of the above rescript implies that there was a presumption that the parties intended to employ the scales in use in the locus contractus.
L. 72 pr.—In the bonae fidei contracts the parties were, to a large extent, free to settle the terms of their bargain for themselves, and the special agreements by which they did so were
num quia ü? (Mom.)
feet of land round it: I ask whether, supposing the ten feet which then bordered the lake are submerged owing to an increase in its size, the ten feet now nearest the water are the property of Rutilia Polla. Proculus answered: 'I am of opinion that Rutilia Polla bought the lake just as it was at the time of sale and the ten feet of land which then surrounded it, and that she cannot claim any greater extent than she bought on the ground of the subsequent increase of the lake.'
70. LICINNIUS RUFINUS. It has been the opinion of most jurists that the sale of a free man is valid provided the parties do not know his condition. The same view is accepted where the seller knows but the buyer is ignorant. But if the buyer knew he was buying a free man the purchase is void.
71. PAPIRIUS JUSTUS. The Emperors Antoninus and Verus issued a rescript to Sextius Verus in the following terms: 'in the wine trade the contracting parties are allowed to use any scale of measures or prices they like (for nobody is forced to sell if he is not pleased with the price or the measure employed), particularly if these are in accordance with the custom of the district.'
72. PAPINIAN. Special agreements made subsequent to a sale count as part of called pacta conventa or adiecta. They might be made at the time of the contract as accessory to it (ex or in continenti), or separately after an interval (ex intervallo). In the first case the pact formed part of the contract, and could be sued on under the classical law by the action on the contract, ea pacta insunt quae legem contractui dant, id est quae in ingressu contractus facta sunt (D. 2. 14. 7, § 5). They are sometimes called pacta vestita as opposed to pacta nuda. In the second case the pact, being made subsequently (postea facta), did not form part of the contract, and being without a causa ' did not give rise to an action, but only to a plea in defence, according to the rule nuda pactio obligationem non parit sed parit exceptionem ($ 5 cit.; C. ii. 3. 13).
As regards pacts of the latter kind, the general rules laid contineri contractui uidentur: quae uero adiciunt, credimus non inesse. quod locum habet in his quae adminicula sunt emptionis, ueluti ne cautio duplae praestetur aut ut cuin fideiussore cautio duplae praestetur. sed quo casu agente emptore non ualet pactum, idem uires habebit iure exceptionis agente uenditore.
an idem dici possit aucto postea uel deminuto pretio, non immerito quaesitum est, quoniam emptionis substantia constitit ex pretio. Paulus notat: si omnibus integris manentibus de augendo uel deminuendo pretio rursum conuenit, recessum a priore contractu et noua emptio intercessisse uidetur.
1. PAPINIANUS: Lege uenditionis illa facta 'si quid sacri aut religiosi aut publici est, eius ‘nihil uenit,' si res non in usu publico, sed in patrimonio fisci erit, uenditio eius ualebit, nec uenditori proderit exceptio, quae non habuit locum. down here and in D. 2. 14. 7, 6 and 27, 2 are as follows A distinction was made according as they affected the essence (substantia) or only some modality (adminiculum) of the contract. If a pact touched an essential of the contract, if for instance it raised or lowered the price, it was held, provided matters were entire, that the original contract had been abandoned and a new one entered into embodying the modification (§ 6 cit.; D. 18. 5. 2). By this piece of legal analysis the nuda pactio, which could only serve as a plea in defence, was transformed into a ground of action. The postulate of a new contract was necessary to a Roman jurist, because he held that the price must be definite from the first; in modern practice we should conceive the matter simply as a modification of an existing obligation. If, on the other hand, a pact touched a mere subsidiary part of the contract, leaving its essence intact, it could not give rise to an action, but could be pleaded as an equitable exception. Pothier, Vente, $ 327 sq.
Papinian gives two examples of special agreements of this kind, touching only the collateral rights and duties of the parties (adminicula). The first 'ne cautio duplae praestetur' operates as a release to the seller from an obligation that naturally belonged to the contract, viz. to answer for eviction; the buyer was entitled to demand a penal stipulation from the seller binding him to pay double the amount of the price in that event, but by the above clause he waives his right in favour of the seller-hence the exthe contract if they abate some of its terms, but not if they add a new term. This applies to all provisions subsidiary to the contract; for example, a covenant dispensing with the penalty of the double for eviction, or one requiring it and a surety as well. If the pact does not form a good ground of action at the instance of the vendee, it will receive effect as an equitable defence in favour of the vendor. It has with good reason been questioned whether this holds good when the price is subsequently increased or diminished, because the price goes to the essence of the contract. PAUL remarks : ‘if while matters are entire a new agreement is made to raise or lower the price, I consider the parties have abandoned the first contract, and that a fresh sale has taken place.'
1. Where the conditions of sale contained this clause, ‘if any part of the land is sacred, or religious, or public, it is excepted from the sale,' a parcel of land which is the property of the State but not dedicated to the use of the public will be validly sold, and the vendor will take no benefit from the reservation, which does not apply here.
pressions detrahere emptioni here and imminuere contractum in L. 27, § 2 cit. In the other example, 'ut cum fideiussore cautio duplae praestetur,' not only is the stipulation claimed by the buyer, but caution for it as well, which he was not entitled to apart from this clause (D. 21. 2. 4 pr.)—hence it is said adicere emptioni, to increase the original obligation. The result was, that if the seller refused to give the stipulated surety, the buyer could not demand it by an action on the pact, but he could plead the pact by way of exception when the seller sued him for the price. It may be inferred from L. 7, § 6 cit. that Ulpian went further and held that in this case also the old contract was revoked and a new one concluded, so that the buyer would have a title to sue the seller for implement of his promise.
The rest of the passage deals with a pact altering the price, as an example of a covenant going to the essence of the original contract and setting up a new one in its stead. Probably the compilers of the Digest inserted Paul's observation because Papinian appeared to leave the question of the discharge of the original contract open.
§ 1. See note on p. 16 supra.
73. PAPINIANUS libro III responsorum. Aede sacra terrae motu diruta locus aedificii non est profanus et ideo uenire non potest.
1. Intra maceriain sepulchrorum hortis uel ceteris culturis loca pura seruata, si nihil uenditor nominatim excepit, ad emptorem pertinent.
74. PAPINIANUS libro i definitionum. Clauibus traditis ita mercium in horreis conditarum possessio tradita uidetur, si claues apud horrea traditae sint: quo facto confestim emptor dominium et possessionem adipiscitur, etsi non aperuerit horrea : quod si uenditoris merces non fuerunt, usucapio confestim inchoabitur.
L. 73, § 1.-Rich people usually had a burying - place (sepulcrum) on their lands, enclosed by a wall; but only the ground where interments had actually been made was religiosus, all the rest within the wall being 'purus,' i.e. profanus. A special clause of reservation was necessary in order to prevent this profane ground from passing to the purchaser; the general clause si quid sacri, etc., was only sufficient to reserve the actual graves. If there was no reservation at all, the whole passed as accessory of the lands.
See LL. 22–24 supra, p. 49; and D. 19. 1. 53, 1.
L. 74.-The civilians (as Pothier, Vente, $$ 313, 314) speak of delivery as being either real or feigned (ficta), and under the latter head they include 'symbolical' delivery, that is, the giving of something as a symbol of the thing delivered; e.g. the keys of the building where goods are stored, cp. D. 41. 1. 9, 6, item si quis merces in horreo repositas uendiderit, simulatque claues horrei tradiderit emptori, transfert proprietatem mercium ad emptorem (a text which occurs also in Inst. ii. 1. 45), or the title-deeds of slaves (C. viii. 53. 1), emptionum mancipiorum instrumentis donatis et traditis et ipsorum mancipiorum donationem et traditionem factam intellegis. But the Roman texts do not give an allegorical meaning to the keys or the title-deeds, and they never speak of ficta traditio; Paul says in D. 41. 2. 1, 21: si iusserim uenditorem procuratori rem tradere, cum ea in praesentia sit, uideri