the seller under the warranty of full possession and enjoyment. Now in my opinion it makes a great difference whether the undertaking is that the seller and his successors in title will not disturb the buyer, or that no person whatever shall do so. In the former case he cannot be held answerable for eviction at the hands of a third party: accordingly, if the property be carried off, he is not liable therefor either under the stipulation if he has entered into one, or under the contract if he has not. Julian, however, says, in the fifteenth book of his Digesta, that even where the seller has declared explicitly that he and his successors will not disturb the buyer's possession, it may be argued that he is liable under the contract, not certainly in full damages to the buyer, but for repayment of the price merely. He goes on to say that the same rule applies even when it is an express term of the contract that the seller is not to be responsible for eviction if eviction follows, he is bound to restore the price, but not to pay an indemnity: for an agreement that the purchaser is to lose the property while the seller keeps the price is inconsistent with a contract based on equity. But perhaps, he adds, all such covenants are to be brought under the legal principle which sanctions a bargain that the seller shall get the price though the thing sold should never reach the buyer, as for instance when we buy all the fish that may be caught in a haul of the net, or all the game a hunter may take in the toils, or all the birds a fowler may enclose: though nothing be caught, the purchaser is bound to pay the price. But the contrary is true of. the covenants above mentioned, except where one knowingly sells what belongs to another; in that case it is true, in accordance with the opinion of Julian referred to above, that the seller is liable under the contract, on the ground that he has acted fraudulently.

an adjected pact is to be justified by the analogy of the emptio spei (p. 25 ante), in which the seller gets the price though the buyer should get nothing. In the concluding words (sed in supra scriptis . . . dolo facit) Ulpian reasserts the principle he stated at the outset, adding the qualification that, if the seller is in bad

12. CELSUS libro XXVII digestorum.

Si iactum retis emero et iactare retem piscator noluit, incertum eius rei aestimandum est: si quod extraxit piscium reddere mihi noluit, id aestimari debet quod extraxit.

13.

ULPIANUS libro XXXII ad edictum.

Iulianus libro quinto decimo inter eum qui sciens quid aut ignorans uendidit differentiam facit in condemnatione ex empto : ait enim, qui pecus morbosum aut tignum uitiosum uendidit, si quidem ignorans fecit, id tantum ex empto actione praestaturum quanto minoris essem empturus, si id ita esse scissem: si uero sciens reticuit et emptorem decepit, omnia detrimenta, quae ex ea emptione emptor traxerit, praestaturum ei: siue igitur aedes uitio tigni corruerunt, aedium aestimationem, siue pecora contagione morbosi pecoris perierunt, quod interfuit idonea uenisse erit praestandum.

1. Item qui furem uendidit aut fugitiuum, si quidem sciens,

faith, the actio empti will lie, notwithstanding such a pactum de non praestanda euictione.

Some writers, however, maintain that Ulpian does not mean in the closing words to express his dissent from Julian, but only to remove the doubt suggested by the reference to emptio spei (Puchta). The result of the passage would then be that the pact in question relieves the seller of the expenses, etc., incident to eviction, but not of the obligation to restore the price to the buyer, and that it has no effect whatever if the seller is in bad faith. Pothier so understands it (Vente, § 185 sq.). Cp. French Civil Code, art. 1629.

But it may be inferred from the final words that as the actio empti is competent only where there is fraud, it is not allowed where the seller makes the covenant honestly to secure himself against possible risks; consequently, though the title should prove to be bad, he will be entitled to keep the price. This result is more consistent with the decisions elsewhere, as D. 21. 2. 68 pr.: Cum ea condicione pignus distrahitur, ne quid euictione secuta creditor praestet; quamuis pretium emptor non soluerit, sed uenditori cauerit, euictione secuta nullam emptor exceptionem habebit, quo minus pretium soluat. Cp. D. 18. 4. 10 and 11.

12. CELSUS.

If I buy the draught of a net and the fisherman refuses to cast his net, the uncertain value of the catch must be taken into account; if he casts the net but refuses to hand over the fish, the value of the haul will be the measure of the damages.

13. ULPIAN.

Julian in his fifteenth book draws a distinction, as regards the damages to be awarded in the action on purchase, between selling a thing with and without knowledge of its defects: for he says, if a man sells me diseased cattle or rotten beams without knowing it, all he has to make good in the action on purchase is the difference between the price I gave and what I would have given had I known their condition; but if he knows it and says nothing, and so deceives the buyer, he is responsible to him for all loss resulting from the purchase: for example, if a house collapses because of the rottenness of the beams he must pay its value, and if other stock dies through contact with the tainted herd he must reimburse the buyer for all it has cost him that he did not get sound cattle.

1. Similarly, if a man sells a slave whom he knows to be a

Compare generally for the effect of a stipulation 'habere licere'

D. 45. 1. 38.

L. 12.--In the ordinary examples of emptio spei given in the texts, the chance or expectation can only be realised by some act on the part of the seller. If the act is done, it is immaterial whether it has any result or not. By selling a haul of his net, a fisherman binds himself to cast his net,-the hiring of a service is involved; see note on p. 25. For incertum compare D. 18. 4. 11, nam hoc modo admittitur esse uenditionem, si qua sit hereditas, est tibi empta' et quasi spes hereditatis: ipsum enim incertum rei ueneat, ut in retibus.

L. 13 pr.-§ 2.—The liability of the seller for defects in the res uendita rested partly on the principles of the common law

praestare debebit, quanti emptoris interfuit non decipi: si uero ignorans uendiderit, circa fugitiuum quidem tenetur, quanti minoris empturus esset, si eum esse fugitiuum scisset, circa furem non tenetur differentiae ratio est, quod fugitiuum quidem habere non licet et quasi euictionis nomine tenetur uenditor, furem autem habere possumus.

2. Quod autem diximus quanti emptoris interfuit. non decipi,' multa continet, et1 si alios secum sollicitauit ut fugerent, uel res quasdam abstulit.

3. Quid tamen si ignorauit quidem furem esse, adseuerauait autem bonae frugi et fidum et caro uendidit? uideamus, an ex empto teneatur. et putem teneri. atqui ignorauit: sed non debuit facile quae ignorabat adseuerare. inter hunc igitur et (ius civile), partly on the edict of the curule aediles; in the first case it was enforced by the action on the contract, in the second by the actions introduced by the edict. The action on the contract was limited to cases of fraud (cp. L. 4. pr.) and breach of express warranty; the actions under the edict applied in all sales of a certain class, wherever there were defects which had not been pointed out, irrespective of the seller's knowledge or ignorance of their existence. Cicero states expressly that the actio empti was limited in the above manner (de Off. iii. 16, 17); yet we are told here that it could be brought against a seller who knew nothing of the defects. It must, therefore, have undergone some modification. The most probable explanation is that the jurists, after the principles of the edict had become settled, imported them into the common law actio empti. It would be easy to remodel a bonae fidei action in the manner suggested, because the recognised custom was regularly adopted into actions of that kind (D. 21. 1. 31, 20). The actio empti as thus extended to cover the case of an innocent seller followed very closely the lines of the actio quanti minoris introduced by the edict; for example, it applied, as the edict did, only to uitia corporis, not to uitia animi, and it concluded not for full damages but for reduction of the price by striking off the excess over the worth of the thing with its defects (vera rei aestimatio); it is only where the seller acts fraudulently that he is liable under the actio empti for other

1 ut?

thief or a runaway, he will have to make good what the buyer loses by being deceived; but if he does not know, he is liable, in the case of the runaway slave, for the surplus over the price the purchaser would have paid had he known he was a runaway but he is not liable in the case of the thief: the reason for the distinction being, that possession of a runaway slave is impossible, and the seller is liable just as for eviction, whereas possession of the thief is possible.

2. The expression used above,' what the buyer loses by being deceived,' embraces many elements of damage; e.g. the slave may have incited others to run away with him, or have stolen some property of the buyer's.

3. But what if the seller, without knowing that the slave was a thief, certifies him as well behaved and honest, and sells him dear? Can he be reached by the action on purchase? I am inclined to think he can. But it may be urged, he did not know; the answer is, he should not lightly have asserted what he did not know. There is therefore not much difference between

defects and for indirect damages. Cp. note to D. 18. 1. 45; D. 21. 1. 1, §§ 9, 10; ib. 4 pr., § 4. Vangerow, § 609. Pothier, Obl. § 162 sq.

The expression 'quanti emptoris interfuit non decipi' is in itself ambiguous (see note p. 111 ante); but the context makes it clear that the measure of damages against a fraudulent seller was the interest the buyer had in getting a sound article (quod interfuit idonea venisse), whereas the damages against a bond fide seller resolved into a reduction of the price.

For the rules as to fugitive slaves, see D. 21. 1. 17; C. iv. 58. 1; Paul, Sent. ii. 17. 11.

The edict did not lay upon the seller the duty of pointing out that a slave is given to stealing (furem esse), because that is not inconsistent with peaceable possession as the vice of running away is. But he is liable for fraud if he knows him to be a thief and conceals the fact (L. 4 pr. supra, D. 21. 1. 14, 9). § 3. This passage and texts such as L. 6, § 4 supra and D. 18. 6. 15, Si uina antequam ab emptore tollerentur sua natura corrupta fuerint, si quidem de bonitate eorum adfirmauit uenditor,