ought to have delivered it burdened with a servitude, I can bring a condictio incerti to compel you to submit to the servitude which is due being set up.

1. But if in giving delivery I have burdened an estate with a servitude, when I was bound to deliver it unencumbered, you can bring an action on purchase to obtain release from a servitude you ought not to be subject to.

9. POMPONIUS.

If a man buys the stones off a piece of ground and refuses to take them away, an action on sale may be brought to enforce their removal.

10. ULPIAN.

It is not unusual for two obligations to concur in the same person in respect of the same thing: thus when one has incurred the obligations of a seller first to one person and then to another, and one of these succeeds the other as heir, it is quite settled that two rights of action meet in him, his own and that which he acquires as heir; and if the institute desires to avail himself of the two actions separately, he must before entering on the inheritance sue on the sale to himself, and then after entry on the sale to the deceased: but if he enters first, he can bring only one action, which, however, will secure him the benefit of both contracts. And, conversely, if one has sold a thing and then succeeds to another person, who has also sold it, it is clear he must answer for eviction under both sales.

L. 10.-The hypothesis is that A sells the same thing first to B and then to C, and incurs the penalty for eviction to each of them; B dies and C becomes his heir. Two actions, his own and B's, now concur in C, but there is no merging (confusio), because they arise from different causae; the object of each is to recover from A the penalty for eviction under a separate contract. Non est nouum ut fideiussor duabus obligationibus eiusdem pecuniae nomine teneatur: nam si in diem acceptus mox pure accipiatur, ex utraque obligatur, et si fideiussor confideiussori heres exstiterit, idem erit (D. 46. 1. 21, 1; cp. ib. 5). When he has entered, he must

11. ULPIANUS libro XXXII ad edictum.

Ex empto actione is qui emit utitur.

1. Et in primis sciendum est in hoc iudicio id demum deduci, quod praestari conuenit: cum enim sit bonae fidei iudicium, nihil magis bonae fidei congruit quam id praestari quod inter contrahentes actum est. quod si nihil conuenit, tunc ea praestabuntur quae naturaliter insunt huius iudicii potestate.

2. Et in primis ipsam rem praestare uenditorem oportet, id est tradere quae res, si quidem dominus fuit uenditor, facit et emptorem dominum, si non fuit, tantum euictionis nomine uenditorem obligat, si modo pretium est numeratum aut eo nomine satisfactum. emptor autem nummos uenditoris facere cogitur.

3. Redhibitionem quoque contineri empti iudicio et Labeo et Sabinus putant et nos probamus.

4. Animalium quoque uenditor cauere debet ea sana praestari, et qui iumenta uendidit solet ita promittere ́esse, bibere, ut oportet.'

combine the separate penalties due under the two obligations in one petitio; if he did not, probably the seller could plead as an equitable defence that the actions should be conjoined. Si plures sint inter eosdem societatas coitae, ad omnes societates sufficere hoc unum iudicium constat (D. 17. 2. 52, 14).

L. 11, § 1. When the parties do not express their intentions, it is presumed they mean to abide by the naturalia of the contract, as established by custom and usage: ea enim quae sunt moris et consuetudinis in bonae fidei iudiciis debent uenire (D. 21. 1. 31, 20).

§ 2. See note, pp. 50, 51 ante. The seller can perform his part of the contract if he has possessio. He may have the ownership also, and, if so, it passes on delivery to the buyer; but that is a mere accident, not an essential. For the obligation on the buyer to make the seller owner of the price, see D. 19. 4. 1 pr. Emptor nisi nummos accipientis fecerit, tenetur ex uendito. If slaves were sold and the buyer paid the price out of their peculia (which belonged to the seller, p. 57), he could still be sued for the price, cum proprii uenditoris nummi soluti non praestant emptori liberationem (C. iv. 49. 7).

11. ULPIAN.

The buyer's remedy is the action on purchase.

1. It is important to note that this action extends to everything for which the parties have agreed to be responsible; for it is an equitable action, and what can be more agreeable to equity than to give effect to the intentions of the contracting parties? In the absence of any agreement, the measure of their responsibility will be the obligations that naturally fall within the scope of this action.

2. The primary obligation on the seller is to make good, that is, to deliver the actual thing; the result of which is to make the purchaser owner if the seller was owner, and if he was not, to make the seller responsible for eviction, provided always the price has been paid or security given for it. The purchaser, on the contrary, is obliged to make the seller owner of the price.

3. I concur in the opinion of Labeo and Sabinus, that the action on purchase may have for its object the rescission of the contract.

4. One who sells live animals should give security that they are sound when delivered, and the seller of beasts of burden. usually gives a guarantee that they feed and drink properly.'

§ 3. Redhibitio was the right based on the edict of the curule aediles to have the thing sold taken back, and the price restored on the ground of deficient quality; redhibere est facere ut rursus habeat uenditor quod habuerit: et, quia reddendo id fiebat, idcirco redhibitio est appellata, quasi redditio (D. 21. 1. 21 pr.) It could be enforced by the actio redhibitoria, or actio quanti minoris, but the existence of special remedies did not make the action on the contract incompetent. The actio empti could be brought whenever there was a claim of indemnity for damage actually sustained.

§ 4. Warranties as to the condition of slaves and animals were also based upon the edict of the aediles, who had the supervision of the markets. The edict made the seller responsible for all defects or vices of any consequence, unless he had expressly pointed them out to the buyer. Ignorance of the existence of the faults, though excusable, did not relieve him. It appears

5. Si quis uirginem se emere putasset, cum mulier uenisset, et sciens errare eum uenditor passus sit, rehibitionem quidem ex hac causa non esse, uerum tamen ex empto competere actionem ad resoluendam emptionem, et1 pretio restituto mulier reddatur.

6. Is qui uina emit arrae nomine certam summam dedit: postea conuenerat, ut emptio irrita fieret. Iulianus ex empto agi posse ait, ut arra restituatur, utilemque esse actionem ex empto etiam ad distrahendam, inquit, emptionem. ego illud quaero: si anulus datus sit arrae nomine et secuta emptione pretioque numerato et tradita re anulus non reddatur, qua actione agendum est, utrum condicatur, quasi ob causam datus sit et causa finita sit, an uero ex empto agendum sit. et Iulianus diceret ex empto agi posse certe etiam condici poterit, quia iam sine causa apud

uenditorem est anulus.

7. Uenditorem, etiamsi ignorans uendiderit, fugitiuum non esse praestare emptori oportere Neratius ait.

8. Idem Neratius, etiamsi alienum seruum uendideris, furtis noxisque solutum praestare te debere ab omnibus receptum ait et ex empto actionem esse, ut habere licere emptori caueatur, sed et ut tradatur ei possessio.

9. Idem ait non tradentem quanti intersit condemnari : from the following sections and C. iv. 49, 14, that the buyer of a slave was entitled to demand caution from the seller for the absence of such defects (stipulatio duplae): emptor seruorum . . de eorum fuga, itemque sanitate, erronesque non esse, aut noxa solutos, repromitti sibi recte postulat.

§ 5. Cp. D. 18. 1. 11, 1, where it was simply a case of error; here it is a case of fraud, the seller taking advantage of the buyer's ignorance by concealing a fact which he knew would have kept him from buying. Although the edict did not require a warranty in this case, and the slave could not be returned on that ground, yet the seller's fraud let in an action on the contract with the effects stated in the text. The passage is not to be read in the sense that the buyer could sue directly for rescission on this ground by the actio empti. That action would lie only for damages, but it might result in the cancelling of the contract, 1 ut (dett.).

5. If one believed he was buying a virgin, whereas the woman on sale was a mother, and the seller knowing his mistake lets him carry out the transaction, though it does not ground the action for return, yet an action on purchase is competent to have the sale cancelled, the woman taken back, and the price restored.

6. A person buying wine paid so much by way of earnest; it was afterwards agreed to depart from the sale. Julian holds that the action on purchase is competent to get back the earnest, and that in a modified form it is available also for rescinding the sale. I put this query: if a ring be given as earnest, and a sale has followed and the price has been paid and the article has been delivered, but the ring is not restored, what action should be brought—a condiction on the ground that it was given for a consideration which is at an end, or an action on the contract? According to Julian it would be the action on purchase; undoubtedly a condiction is also competent to recover the ring, because it is now in the hands of the seller without consideration given for it.

7. Neratius remarks that the seller of a slave, though ignorant of his character at the time of the sale, is bound to warrant him not to be a runaway.

8. Neratius also says that, though the slave you sell belongs to another, it is universally admitted that you are bound to warrant him free from liability for theft or delict, and that the buyer can bring the action on purchase to require you both to give security for undisturbed possession and also to deliver the possession to him.

9. He says that, for failure to deliver, the seller should be where the defect rendered the thing totally useless, and rescission was therefore the only mode of compensating the buyer.

§ 6. See pp. 68, 69 ante.

§ 7. Fugitiuus and erro are used of slaves whose disposition it is to run away or play truant when they have the chance, even if they have never done so (D. 50. 16. 225).

§ 9. Quanti plurimum auctorem periclitari oportet means the highest sum the seller could be called upon to pay in case of