ne hae arbores eius non uiderentur factae. POMPONIUS: arborum, quae in fundo continentur, non est separatum corpus a fundo et ideo ut dominus suas specialiter arbores uindicare emptor non poterit: sed ex empto habet actionem.

41. PAPINIANUS libro III responsorum.

In uenditione super annua pensitatione pro aquae ductu infra1 domum Romae constitutum 2 nihil commemoratum est. deceptus ob eam rem ex empto actionem habebit: itaque, si conueniatur ob pretium ex uendito, ratio improuisi oneris habetur.

42. PAULUS libro II quaestionum.

Si duorum fundorum uenditor separatim de modo cuiusque pronuntiauerit et ita utrumque uno pretio tradiderit, et alteri aliquid desit, quamuis in altero exsuperet, forte si dixit unum centum iugera, alterum ducenta habere, non proderit ei, quod in altero ducenta decem inueniuntur, si in altero decem desint. et de his ita apud Labeonem relatum est. sed an exceptio doli mali uenditori profutura sit, potest dubitari, utique si exiguus modus siluae desit et plus in uineis habeat, quam repromissum est. an non facit dolo, qui iure perpetuo utitur? nec enim hic quod amplius in modo inuenitur, quam alioquin dictum est, ad

L. 41. For water-rate, or rather payment for way-leave (pro aquae forma), cp. D. 7. 1. 27, 3. As to the duty of the seller to disclose extraordinary liabilities which the buyer has not the means of discovering for himself (improvisi oneris), see L. 21, 1 supra.

L. 42. The conclusion come to is, that when one and the same contract embraces several things, and there is more of one and less of another than was promised, compensation comes into play. Labeo, going by the letter of the agreement and applying strict legal rules, holds that the excess in the one piece of land is a windfall to the buyer (L. 38), and therefore cannot be set off against a deficiency in the other piece. Paul recognises this as

1 intra? (Mom.)

2 constituto ?

POMPONIUS' opinion was: trees growing on a piece of land have no separate existence; the vendee therefore cannot bring a real action for his specific trees as their owner; but an action on purchase is competent.

41. PAPINIAN.

In a contract of sale no mention was made of an annual payment for liberty to conduct water under a house situated in Rome. The party deceived thereby is entitled to an action on purchase; and therefore, if he is sued by the action on sale for the price, this unforeseen burden is taken into account.

42. PAUL.

If a person, when selling two pieces of ground, states the contents of each separately, and then hands over both for a slump price, and if the one is found to be short of the measurement while the other is in excess of it, say he stated that the one contained 100 acres and the other 200, it will not avail him that there are 210 acres in the one if there are 10 wanting in the other. An opinion to that effect is reported by Labeo. But there is room for doubt whether a plea of fraud would not avail the seller, suppose there was a slight deficiency of woodland, but a surplus of vineyard as compared with what was guaranteed. Is it not fraud to exact one's utmost legal rights? For here when it a hardship, and admits the principle of compensation; he holds that the seller can plead the exceptio doli against the buyer suing for indemnification, on the ground that his demand is inequitable, because he suffers no prejudice, for what he loses on the one hand he gains on the other. There could not in equity be any question of compensation in a case where the quality of the soils differs, and there is an excess of the more valuable (uinea) and a deficiency of the less valuable (pratum); but in the converse case it would only be fair that the buyer should be indemnified, for he is entitled to demand at least as favourable a proportion between the more and the less valuable constituents of the land as the seller indicated. Cp. L. 13, § 14, supra p. 175; Pothier, Vente, § 256.

1

compendium uenditoris, sed ad emptoris pertinet: et tunc tenetur uenditor, cum minor modus inuenitur. uideamus tamen, ne nulla querella sit emptoris in eodem fundo, si plus inueniat in uinea quam in prato, cum uniuersus modus constat. similis quaestio esse potest ei, quae in duobus fundis agitata est et si quis duos statuliberos uno pretio uendat et dicat unum decem dare iussum, qui quindecim dare debebat [alterum item decem, qui quinque dare debebat]: nam et hic tenebitur ex empto actione, quamuis emptor a duobus uiginti accepturus sit. sed rectius est in omnibus supra scriptis casibus lucrum cum damno compensari et si quid deest emptori siue pro modo siue pro qualitate loci, hoc ei resarciri.

43. PAULUS libro v quaestionum.

Titius cum decederet, Seiae Stichum Pamphilum Arescusam per fideicommissum reliquit eiusque fidei commisit, ut omnes ad libertatem post annum perduceret. cum legataria fideicommissum ad se pertinere noluisset nec tamen heredem a sua petitione liberasset, heres eadem mancipia Sempronio uendidit nulla commemoratione fideicommissae libertatis facta: emptor cum pluribus annis mancipia supra scripta sibi seruissent, Arescusam manumisit, et cum ceteri quoque serui cognita uoluntate defuncti fideicommissam libertatem petissent et heredem ad praetorem perduxissent, iussu praetoris ab herede sunt manumissi. Arescusa quoque nolle se emptorem patronum habere responderat.

Jus perpetuum should mean law always in force'; some take it to refer to public law, others to action under the edictum perpetuum.

Where a slave received by his master's will a conditional bequest of freedom, say on his paying a certain sum or on the lapse of a certain time, he was described as statu liber, and the heir was his master, so long as the condition was unpurified or pendent. See Digest 40, tit. 7, De Statuliberis.

LL. 43, 44.-Seia's repudiation of the legacy was not allowed to prejudice the trust-gift of freedom to the slaves

1 uel.

turns out that there is an excess over the measurement promised it is the buyer who reaps the profit; and still the seller is bound in case of a deficiency to make it good. But in the case of a single piece of land I think that no action is competent to the purchaser, although he finds more vineyard and less meadow, if the total measurement is correct. A point analogous to that which has been discussed in regard to the two pieces of land, may be raised where a man sells for a slump price two slaves who have been promised their freedom, declaring that the one was enjoined to pay 10 aurei, whereas the real sum was 15 (and the other to pay 10, the real sum being 5), for in this case also an action on purchase will lie, although the purchaser is to get 20 aurei from the pair. But it is fairer in all the abovementioned cases to set off the loss and gain against each other, and if the buyer suffers either as regards the extent or the quality of the land to give him compensation.

43. PAUL.

Titius at his death left the slaves Stichus, Pamphilus, and Arescusa to Seia, by a testamentary trust, under the trust condition that she should make them all free after a year. Seia, the legatee, having refused the trust, without exonerating the heir from his suit, the heir sold the said slaves to Sempronius without making any reference to the trust grant of freedom: after the vendee had held them as slaves for several years, he manumitted Arescusa; and then the other two, becoming aware of the intentions of their late master, claimed their freedom in pursuance of the trust, and summoned the heir before the praetor, by whose orders they were set free. Moreover, Arescusa had now declared that she declined to have the vendee as her patron. (D. 40. 5. 33, 2); neither did the fact that the heir sold them. without informing the purchaser that they were statu liberi prevent them from claiming their freedom at the expiry of the year, or as soon after as they became aware of their rights, si sub condicione fuit ei libertas relicta et pendente condicione alienatus sit, attamen cum sua causa alienatur (D. ib. 24, 21). The con

cum emptor pretium a uenditore empti iudicio Arescusae quoque nomine repeteret, lectum est responsum Domitii Ulpiani, quo continebatur Arescusam pertinere ad rescriptum sacrarum constitutionum, si nollet emptorem patronum habere: emptorem tamen nihil posse post manumissionem a uenditore consequi. ego cum meminissem et Iulianum in ea sententia esse, ut existimaret post manumissionem quoque empti actionem durare, quaero, quae sententia uera est. illud etiam in eadem cognitione nomine emptoris desiderabatur, ut sumptus, quos in unum ex his quem erudierat fecerat, ei restituerentur. idem quaero, Arescusa, quae recusauit emptorem patronum habere, cuius set liberta constituta ? an possit uel legatariam quae non liberauit uel heredem patronum habere? nam ceteri duo ab herede manumissi sunt. respondi: semper probaui Iuliani sententiam putantis manumissione non [amitti actionem: itaque quod ius habuit emptor aduersus heredem Arescusae nomine, etsi manumisit eam, non] amittitur eo modo. de sumptibus uero, quos in erudiendum hominem emptor fecit, uidendum est: nam empti iudicium ad eam quoque speciem sufficere existimo: non enim pretium continet tantum, sed omne quod interest emptoris seruum non stitutions referred to gave a slave who had been alienated the right to say whether he preferred to have the heir or the purchaser as patron: the object was to prevent him being obliged to take a patron, whom the testator did not mean to give him (ne contra uoluntatem defuncti durior eius condicio constituatur, Digest, loc. cit.).

The words in brackets are those suggested by Mommsen to fill up what is obviously a lacuna between non and amittitur. Quod ius habuit: the claim in question is founded on the fact that the purchaser has lost the right of patronage over Arescusa as she preferred to have the heir for patron. Paul, differing from Ulpian, and agreeing with Julian, holds that, though he has manumitted her, he still has a sufficient interest to support the actio empti either for return of the price or, more probably, to the effect of recovering damages for the loss of the patronatus. The next question is, What are the purchaser's rights in regard to the other two slaves, whom he has been obliged to hand over