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of light weights, Pomponius says that in the first case the seller can sue for the return of the surplus; which is reasonable: and it follows that in the other case the buyer will have the action on purchase for the satisfaction of his claim.

33. ULPIAN.

If several things have been bought together for a lump price [and all or some of them have been evicted], the actions on purchase and on sale are competent in regard to any one of them.

34. ULPIAN.

An action on purchase will lie for any deception in regard to the condition of the ground in a sale of land.

35. ULPIAN.

If a man has bought a piece of land in the belief that no one has right to a footpath or driving road through it, and if he fails to obtain interdict against a party claiming such right, he is entitled to the action on purchase: for though the stipulation against eviction does not come into play, there having been no judgment in a real action regarding the servitude right, still it must be held there is room for the action on purchase.

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possession had not been violent, clandestine, or on sufferance. Praetor ait: Quo itinere actuque priuato quo de agitur, uel uia hoc anno nec ui nec clam nec precario ab illo usus es, quominus ita utaris, uim fieri ueto' (D. 43. 19. 1 pr.).

For the decision that there is nothing in the case here put involving an infringement of the stipulation against eviction, compare D. 21. 2. 75: Quod ad seruitutes praediorum attinet, si tacite secutae sunt et uindicentur ab alio, Quintus Mucius et Sabinus existimant uenditorem ob euictionem teneri non posse: nec enim euictionis nomine quemquam teneri in eo iure, quod tacite soleat accedere: nisi ut optimus maximusque esset traditus fuerit fundus. Cp. D. 18. 1. 59 supra.

PAULUS libro VII ad Plautium.

36. Uenditor domus antequam eam tradat, damni infecti stipulationem interponere debet, quia, antequam uacuam possessionem tradat, custodiam et diligentiam praestare debet et pars est custodiae diligentiaeque hanc interponere stipulationem : et ideo si id neglexerit, tenebitur emptori.

37. PAULUS libro XIV ad Plautium.

Sicut aequum est bonae fidei emptori alterius dolum non nocere, ita non est aequum eidem personae uenditoris sui dolum prodesse.

38. CELSUS libro VIII digestorum.

Si uenditor hominis dixit peculium eum habere decem nec quemquam1 adempturum, et2 si plus habet, totum praestet, nisi hoc actum est, ut dumtaxat decem praestaret, si minus est, praestet esse decem et talem seruum esse, ut tantum peculii habeat.

1. Si per emptorem steterit, quo minus ei mancipium traderetur, pro cibariis per arbitrium indemnitatem posse seruari Sextus Aelius, Drusus dixerunt, quorum et mihi iustissima uidetur esse sententia.

2. Firmus a Proculo quaesiit, si de plumbeo castello fistulae sub terram missae aquam ducerent in aenum lateribus circumstructum, an hae aedium essent, an ut ruta caesa uincta fixaque,

L. 36. When a house was in a ruinous condition, the owner of it could be compelled to give caution to the owner of the next property that he would make good any damage caused by its fall. As to the seller's duty of custodia until delivery was given, see D. 18. 1. 35, 4 supra. The risk of the anticipated damage did not pass to the buyer because the seller alone up to the time of delivery had the title to exact the security.

L. 38, § 1.—Cp. D. 13. 6. 18, 2: the expense of the maintenance of a slave falls on the borrower (commodatarius), but serious charges incurred, say for curing him or in recovering him when he has run away, must be borne by the commodans.

§ 2. The correctness of the text is doubted by most editors. 1 quicquam ?

1

2

esse ?

36. PAUL.

As regards the period before delivery, the seller of a house ought to require [from the owner of the adjoining house] a stipulatory promise to pay for threatened damage, because he is bound. to bestow due care and watchfulness until he delivers the full possession, and it falls within his obligation to exact this stipulation accordingly he must answer to the purchaser for default in doing so.

37. PAUL.

While it is equitable that a purchaser in good faith should not suffer by the bad faith of another, it would be inequitable that he should profit by the bad faith of the seller.

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If the seller of a slave gave out that he had a peculium of ten aurei, and that there are no deductions to be made from it, then, if it amounts to more, the master must hand over the whole, unless the actual arrangement was that he should give no more than ten aurei; but if it comes to less, he is responsible for ten aurei, and for the slave being valuable enough to possess a peculium of that amount.

1. Where non-delivery of a slave has been due to fault on the part of the buyer, Sextus Aelius and Drusus hold that the seller has a right to be reimbursed for the expense of his maintenance as fixed by an arbiter, a view which appears to me very reasonable.

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2. Firmus put this query to Proculus: where pipes carried underground convey water from a lead reservoir to a copper cauldron built in all round, are they pertinents of the house or are they like things dug and cut or fastened and fixed which are Pothier and Glück would transpose the order thus, an hae aedium essent ut uincta fixaque, an ut ruta caesaque aedium non essent— whether the pipes in question are to be classed among fixtures belonging to the house, or among moveables which are not attached to the solum, and therefore are not appurtenances of the house.

quae1 aedium non essent ille rescripsit referre, quid acti esset. quid ergo si nihil de ea re neque emptor neque uenditor cogitauerunt, ut plerumque in eiusmodi rebus euenisse solet, nonne propius est, ut inserta et inclusa aedificio partem eius esse existimemus ?

39. MODESTINUS libro V responsorum.

Quaero, si quis ita fundum uendiderit, ut id uenum datum esse uideatur, quod intra terminos ipse possedit, sciens tamen aliquam partem certam se non possidere non certiorauerit emptorem, an ex empto iudicio teneatur, cum haec generalis adiectio ad ea, quae specialiter nouit qui uendidit nec excepit, pertinere non debeat, ne alioquin emptor capiatur, qui fortasse, si hoc cognouisset, uel empturus non esset uel minoris empturus esset, [si certioratus de loco certo fuisset] 2: cum hoc et apud ueteres sit relatum in eius persona, qui sic exceperat : 'seruitutes si quae debentur, debebuntur:' etenim iuris auctores responderunt, si certus uenditor quibusdam personis certas seruitutes debere non admonuisset emptorem, ex empto eum teneri debere, quando haec generalis exceptio non ad ea pertinere debeat, quae uenditor nouit quaeque specialiter excipere et potuit et debuit, sed ad ea quae ignorauit et de quibus emptorem certiorare nequiuit. Herennius Modestinus respondit, si quid circumueniendi emptoris causa uenditor in specie de qua quaeritur fecit, ex empto actione conueniri posse.

40. POMPONIUS libro XXXI ad Quintum Mucium.

Quintus Mucius scribit: dominus fundi de praedio arbores stantes uendiderat et pro his rebus 3 pecuniam accepit et tradere nolebat emptor quaerebat, quid se facere oporteret, et uerebatur,

L. 40. Compare L. 50 pr. De rei uindicatione, Digest 6. 1: si ager ex emptionis causa ad aliquem pertineat, non recte hac actione agi poterit, antequam traditus sit ager tuncque possessio amissa sit.

If something growing on an estate is sold by itself, the property in it does not pass till it is separated.

1

quae del.

2 del.

3 arboribus? (Mom.)

not pertinents of a house? He answered that it was important to know what the parties actually agreed on. But suppose neither party gave a thought to the matter, as constantly happens in such cases, it is surely the more reasonable view that a thing attached to and enclosed within a building forms a part of it.

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Suppose a man in selling land adds the condition, that only so much as he himself has possessed within the boundaries is to be taken as offered for sale, and though aware that he does not possess a particular portion yet gives no information to the purchaser, the query is put, is he liable to an action on purchase, seeing that this general clause should not cover what was particularly known to the seller unless he expressly reserved it, otherwise the purchaser would be imposed upon; for had he known this he would perhaps not have bought at all, or would have given a lower price [if he had been informed that a certain part did not belong to the seller]: especially as it is reported in the old writers, that in a case where a man had stipulated that any servitudes affecting the lands shall remain a burden on them,' the authorised jurists were of opinion that if the seller knew and did not give notice to the purchaser that certain persons possessed servitude rights he must answer for it in the action on purchase, because this general proviso ought not to cover what the seller knew, and might and should have reserved by express words, but only what he did not know and could not therefore disclose to the purchaser. Herennius Modestinus gave it as his opinion, that if the seller did anything in the premises for the purpose of overreaching the buyer, he was amenable to the action on purchase.

40. POMPONIUS.

Quintus Mucius reports this case: The owner of lands sold timber growing on the estate, and received payment, but refused to give delivery: the vendee asked what he was to do, as he feared that the trees would be held not to have become his.

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