40. PAUL.

The seller of a piece of ground had made it a term of the sale that the purchaser should measure the land within the next month and give him notice as to the measurement, and that failing notice before the expiry of the month the seller should be relieved of his obligation: the purchaser timeously intimated what the shortage was according to his belief, and was repaid a proportionate sum: some time after he sold the land, and, on remeasuring it for the purchaser, he found its area was much less than he had supposed: he asked whether he could recover the value of the deficiency from the man who sold it to him. The answer was that it depended upon the language used in the contract: if its terms were, the purchaser shall measure the land within a month from this date and shall intimate to the owner what shortage he discovers,' any notice given after the expiry of the month would be of no avail; but if the contract ran thus, 'the buyer is to measure the land within the next few days and make a statement as to the extent,' if he notified within a month that it fell short of the measurement stated, he can sue for compensation for the short measure, no matter how many years after.

will be proportionate to the yield, up to but not exceeding 10 lbs., and the surplus will go to the buyer as profit.

L. 40 pr. Various questions of interpretation are taken up in this and the succeeding sections. It may be noted with reference to the opinions of 'patented' counsel which form so large a part of the Digest, that we often find the case stated, and the answer to it put in the third person (quaerebat, respondit, ait) from which we may infer that the writer is reporting or quoting the opinion of some other counsel.

The opinion on the circumstances here submitted seems to admit of no doubt. The clause in the lex venditionis specified a month as the time within which the buyer was to check the measurement of the lands, and give notice to the seller if he had any claim to make for shortage. He had the lands measured timeously, and recovered the price of the deficiency from the

1. In lege fundi aquam accessuram dixit: quaerebatur, an etiam iter aquae accessisset. respondit sibi uideri id actum esse, et ideo iter quoque uenditorem tradere oportere.

2. Qui agrum uendebat, dixit fundi iugera decem et octo esse, et quod eius admensum erit, ad singula iugera certum pretium stipulatus erat: uiginti inuenta sunt: pro uiginti deberi pecuniam respondit.

3. Fundi uenditor frumenta manu sata receperat in eo fundo

seller. On a re-sale after the thirty days, he discovered that he had overstated the contents on the occasion of the first measurement, and he wished to make a further claim. Counsel simply refers him to the clause in the contract fixing a definite term of thirty days, and adds that, if the term had been indefinite (as in diebus proximis), it would be construed more liberally, and he could have brought the action at any interval of time, although he had not given notice within thirty days: that is the meaning, if the MS. reading et si is retained, and non is inserted before renuntiasset as seems to be necessary. Mommsen suggests si for et si, which gives a good sense: if the buyer gives notice of his challenge within a reasonable period, such as thirty days, he can bring his action at any future time. Even the indefinite term dies proximi must have meant a short period.

The reading quod has less authority but is more intelligible than quo.

In the time of Justinian actions generally had to be brought within thirty years (C. vii. 39. 3).

If in the above case the purchaser had employed a surveyor on the first occasion, he would have had an action against him if he had fraudulently misstated the extent of the lands. See Digest, 11, tit. 6: Si mensor falsum modum dixerit.

§ 1. The seller in this case evidently owned an adjoining piece of ground where there was a spring, and bound himself to give the purchaser of the lands he was selling a right to draw water from it. Qui habet haustum, iter quoque habere uidetur ad hauriendum (D. 8. 3. 3, 3). For implied grant of necessary ways, see Bell, Prin. §§ 739, 992.

§ 2. Here certain lands were sold as containing eighteen acres, and the price was fixed at so much an acre, so that the sale was

1. In the conditions of sale a right to draw water was promised as an accessory of the lands sold: the question was asked whether the right to the water carried with it a right to access as well. The answer was that that seemed to have been within the view of the parties and therefore the seller must provide an access also.

2. The seller of a plot of ground stated that it contained eighteen acres, and stipulated for a certain price for each acre it should be found to contain; the number proved to be twenty; an opinion was given that the buyer must pay for twenty.

3. The seller of a farm reserved for himself the sown crops;

ad mensuram. In such a case, if it turns out that there are more or fewer acres than was stated, the price will be raised or lowered in proportion. But if the lands had been sold en bloc for a slump sum, a mistake of either party as to the acreage would have made no difference to the price.

An error as to the quantity merely of the res vendita was not essential error by Roman law; but it let in a claim for augmentation or diminution of the price, as the case might be, (a) where the subject of the contract was a fixed quantum of a thing, and more or less was delivered by mistake (D. 19. 1. 2 pr.; D. 4. 3. 18, 3 ; D. 12. 6. 26, 4-6); and (B) when a specific thing was sold at a price fixed according to its separate units, which is the case here put. See, for details, Pothier, §§ 250-258; Vangerow, § 604, (3). It may be added that a specification of quantity may be made at the completion of a sale as a promise or engagement collateral to the contract, and not as the true subject of it; the effect is, that if less be given than was guaranteed, the buyer can sue for a proportionate reduction of the price (D. 21. 2. 69, 6).

The law of Scotland is materially different both as to the nature and effect of an error in extent. 'A description by measurement entitles the purchaser to insist for the quantity described, and no more; any valid objection on account of error entitling him to the option of giving up the purchase, if it amount to error in substantialibus' (Bell, Prin. § 893). Hepburn v. Campbell (1781) M. 14,168, was a case very like that in § 2, and the decision was the same, except that it was further held that the purchaser might throw up the bargain if he thought fit.

§ 3. Sown crops went to the buyer, unless reserved (D. 19.

ex stipula seges erat enata: quaesitum est, an pacto contineretur. respondit maxime referre, quid est actum: ceterum secundum uerba non esse actum,* quod ex stipula nasceretur, non magis quam si quid ex sacco saccarii cecidisset aut ex eo quod auibus ex aere cecidisset natum esset.

4. Cum fundum quis uendiderat et omnem fructum receperat, et arundinem et siluam caeduam in fructu esse respondit.

5. Dolia, quae in fundo domini essent, accessura dixit: etiam ea quae seruus qui fundum coluerat emisset peculiaria, emptori cessura respondit.

6. Rota quoque, per quam aqua traheretur, nihilo minus aedificii est quam situla.

41. IULIANUS libro III ad Urseium Ferocem.

Cum ab eo qui fundum alii obligatum habebat quidam sic emptum rogasset, ut esset is sibi emptus, si eum liberasset, dummodo ante kalendas Iulias liberaret, quaesitum est, an utiliter agere possit ex empto in hoc, ut uenditor eum liberaret. responsit uideamus, quid inter ementem et uendentem actum sit. nam si id actum est, ut omni modo intra kalendas Iulias uenditor fundum liberaret, ex empto erit actio, ut liberet, nec subcondicione emptio facta intellegetur, ueluti si hoc modo emptor

1. 13, 10); as to the meaning of manu sata, see L. 80 pr. infra.

*

For actum Mommsen conjectures satum.

§ 4. Arundo was used for vine poles. Cujas is probably right in joining siluam caeduam; strictly it means copse or underwood, which, by proper management, can be cut down yearly so as to grow again (D. 50. 16. 30 pr.). It might be cut by a usufructuary for stakes and posts (D. 7. 1. 9, 7; ib. 10). Cp. Stair, ii. 3. 74, on liferenter's right to wood cut in haggs.

L. 41 pr.—The decision is that a clause in a contract of sale as to purging the encumbrances on lands by a certain date may, according to the intention of the parties, amount to an engagement (dictum promissumve), the non-fulfilment of which will

and some corn having sprouted from the ears left on the land, the question was asked, Did it fall under the reservation ? The answer was that it turned very much on the intention of the parties; but, to judge by the expressions used, the growth that sprang up from the ears was not within the view of the parties, any more than grains let fall from the corn sack, or the growth from seeds dropped by birds in their flight.

4. The seller of a farm reserved for himself all the produce; an opinion was given that reeds and coppice-wood were included under produce.

5. Where it had been announced that the vats which were on the proprietor's lands would pass as pertinents, an opinion was given that those which the slave who cultivated the lands had bought out of his peculium would also pass to the purchaser.

6. The wheel which serves to raise the water is a pertinent of a house no less than the bucket.

41. JULIAN.

A person negotiated with the proprietor of an encumbered estate for a purchase, on the terms that he should be held to have bought if the owner cleared off the encumbrances, provided that were done before the 1st of July: the query was put whether he can by bringing the action on purchase in an adapted form compel the seller to discharge the burden? The answer was the real intention of the parties must be ascertained. If the bargain was that the seller was to disburden the lands in any event by the 1st of July, an action on purchase will lie to have him ordained to do it, and the sale will not be regarded as subject to a condition, if e.g. the buyer has ground a modified action on the contract for performance or damages, or may have the effect of a condition merely, in which case the owner has a free hand. Whether a guarantee or a condition was meant is a question of intention; it cannot be settled by simply looking to the form of the clause, e.g. there are many ways of expressing a condition besides the common hypothetical form.