45. MARCIAN.

Labeo says in his Posteriora that, if one buys second-hand clothes furbished up, thinking they are new, Trebatius held that the vendee has a claim for damages, provided he did not know the clothes were second-hand. That opinion is approved of by Pomponius, and also by Julian, who remarks that-if the vendor did not know, he owes an indemnity only for the goods; but if he did know, he is liable for all loss resulting therefrom. For example, if he sells a vessel of brass for a gold one, believing it to be so, he is bound to indemnify the vendee for not supplying a gold vessel as promised.

by Marcian, as is indicated both by the change of construction, and by the fact that Julian would not have concurred in the opinion stated in the last clause about the vas aurichalcum (cp. L. 41, 1); the last clause is thus the conclusion of the quotation from Labeo. The example there given is the sale of a brazen vessel for a gold one, and the opinion meant to be conveyed is obviously the same as in the former case, that the contract is valid and a claim for compensation will lie. But according to the previous texts on this subject the error in question would certainly be essential, and the contract would be void. Savigny explains the contradiction on historical grounds. The nullity of a contract, as the result of error about a material quality of the object, was not always recognised; Marcellus combated this doctrine (L. 9, 2), Julian maintained it (L. 41, 1), Paul and Ulpian established it (LL. 9, 11, 14), and it was adopted in the Pandects. But the compilers failed to observe that in this lex they admitted a testimony by Labeo in favour of the older view which they had discarded everywhere else. Syst. iii. 285.

Aurichalcum is said by Pliny to be a mixture of copper and tin: Festus says, 'quidam putant ex aere et auro.' If it could

be taken as an alloy of gold with some base metal, the decision here given would harmonise exactly with L. 10 supra.

The expressions used in the first example to indicate the measure of damages are noticeable. Trebatius holds that the innocent seller is liable to indemnify the buyer for all loss attributable to his failure to supply new clothes as he undertook to do (quod interest, which is not used of a mere reduction of the

46. MARCIANUS libro singulari de delatoribus.

Non licet ex officio, quod administrat quis, emere quid, uel uel per aliam personam: alioquin non tantum rem per se amittit, sed et in quadruplum conuenitur secundum constitutionem Seueri et Antonini: et hoc ad procuratorem quoque Caesaris pertinet. sed hoc ita se habet, nisi specialiter quibusdam hoc concessum est.

47. ULPIANUS libro XXIX ad Sabinum.

Si aquae ductus debeatur praedio, et ius aquae transit ad emptorem, etiamsi nihil dictum sit, sicut et ipsae fistulae per quas aqua ducitur,

48. PAULUS libro v ad Sabinum.

licet extra aedes sint:

49. ULPIANUS libro XXIX ad Sabinum.

et quamquam ius aquae non sequatur, quod amissum est, attamen fistulae et canales dum sibi sequuntur, quasi pars et ita Pomponius libro aedium ad emptorem perueniunt.

decimo putat.

50. ULPIANUS libro XI ad edictum.

Labeo scribit, si mihi bibliothecam ita uendideris, si decuriones

price). Marcian seems to modify this in the parenthesis which follows; he would exact the full interesse only where the seller was in dolo, and would limit the claim against a bona fide seller to the difference in value between old and new clothes (ipsius rei nomine tenetur). Mom. Beit. i. p. 204.

The closing words ut aurum, etc., admit of the meaning that the vendor must actually furnish a gold vessel, but the real sense must be (as Cujas pointed out) that the seller owes an indemnity because he promised a golden article at the time of sale. It seems plain in this instance that a promise or warranty was given, and it may therefore be assumed the more easily in the parallel case of the clothes.

L. 46.-See L. 34, 7 supra; Pothier, Vente, § 13.

The sale

It is illegal for any one, either directly or through another person, to purchase any property of which he has the administration: the penalty for contravention is fixed by a constitution of Severus and Antonine at four times the price in addition to forfeiture of the property: this applies even to an agent for the emperor. Special exemption may, however, be granted to particular persons.

47. ULPIAN.

If a house enjoys a servitude right of bringing in water, the right passes to a purchaser without express mention of it, and so do the pipes conveying the water,

and even if the right to the water should not pass because it has been lost, still the pipes and conduits, as each attaches to the next, become the property of the purchaser as a part of the house. Pomponius expresses the same opinion.

50. ULPIAN.

Labeo lays it down that, if you have sold me a library on conwas not void, but voidable. When there was no risk of fraud, a tutor might buy his ward's property (D. 26. 8. 5; ib. 6).

LL. 47-49.-For the rule that 'fistulae' pass by accession, see L. 78 pr. infra; D. 19. 1. 38, 2; ib. 15; for the law about laying them down, etc., see D. 8. 2. 18 and 19. If dum sibi sequuntur is right, the meaning seems to be that each part cedes to the next, and so the continuous whole forms a pertinent : Mommsen proposes to read dum ibi relinquuntur.

L. 50.

Decuriones were the members of the municipal senate, which was often called curia in later times. This body was a close corporation entrusted with the local government of the municipalities throughout the empire.

G

Campani locum mihi uendidissent, in quo eam ponerem, et per me stet quo minus id a Campanis impetrem, non esse dubitandum, quin praescriptis uerbis agi possit. ego etiam ex uendito agi posse puto quasi impleta condicione, cum per emptorem stet quo minus impleatur.

51. PAULUS libro XXI ad edictum.

Litora quae fundo uendito coniuncta sunt in modum non computantur quia nullius sunt sed iure gentium omnibus uacant: nec uiae publicae aut loca religiosa uel sacra. itaque ut proficiant uenditori caueri solet, ut uiae, item litora et loca publica in modum cedant.

52. PAULUS libro LIV ad edictum.

Senatus censuit, ne quis domum uillamue dirueret quo plus Though the condition attached to a contract was not fulfilled, still if that were due to the fault of either party the contractual tie produced certain effects. Cp. L. 8 pr. supra. For the rule that the condition is held to be fulfilled when the debtor prevents its fulfilment, see D. 50. 17. 161: In iure ciuili receptum est, quotiens per eum, cuius interest condicionem non impleri, fiat quominus impleatur, perinde haberi ac si impleta condicio fuisset ; ib. 174: Qui potest facere ut possit condicioni parere iam posse uidetur; D. 45. 1. 85, 7: Quicumque sub condicione obligatus curauerit ne condicio existeret, nihilo minus obligatur; D. 35. 1. 81, 1: Tunc demum pro impleta habetur condicio, cum per eum' stat, qui si impleta esset, debiturus erat. In such a case Ulpian was satisfied of the competency of an action on the contract; Labeo thought it necessary to bring an actio praescriptis verbis, which was the ordinary remedy for enforcing an innominate contract, and was so called because a clause setting forth the special facts on which the pursuer relied was inserted at the head of the formula. Probably the purchaser in the case put in the text failed to apply for a site.

This doctrine has been generally adopted. See Pothier, Obl. §§ 212-214; Bell, Prin. § 50. In Pirie v. Pirie (1873) 11 Macp. 941, where the above texts were commented on, a condition attached to a bequest in favour of a third party was held fulfilled when the third party had voluntarily rendered its fulfil

dition that the council of Canipania sell me a site for a building to contain it, and if it is my fault that I do not get one from them, there is no doubt that you can maintain an action on the circumstances against me. In my opinion an action on the contract is equally competent, the condition being held as fulfilled when the buyer renders its fulfilment impossible.

51. PAUL.

Shores or river banks within the bounds of an estate that is sold are not reckoned in the measurement, because they belong to no one, but are by the law of nations free and open to all; the same is true of public roads, and religious and sacred places. Hence it is customary, if they are to count in favour of the seller, to make it a condition that roads, shores, and public places shall be included in the measurement.

:

52. PAUL.

The Senate passed a decree forbidding anyone to pull down a ment impossible. In that case the general principle was thus expressed if the accomplishment of a condition is prevented by that one of the contracting parties who has an interest that it should not arrive, whether it depend on his own act or not, the condition so far as he is concerned shall be held as accomplished.' In Mackay v. Dick (1881) 6 App. Ca. 251, the House of Lords held that, where the fulfilment of a condition by one party is prevented by the other, the condition is waived.

L. 51.-Cp. D. 18. 6. 7, 1: Quod uenditur, in modum agri cedere debet, nisi si id actum est, ne cederet: at quod non uenit, in modum cedendum, si id ipsum actum est ut cederet, ueluti uiae publicae, limites, luci qui fundum tangunt: cum uero neutrum dictum est, cedere non debet, et ideo nominatim caueri solet, ut luci uiae publicae quae in fundo sint totae in modum cedant. See also L. 73, 1 infra; D. 11. 7. 10 and 11. Pothier, Vente, § 251 sq.

L. 52. The reference is to the SC. Volusianum of the year 56 A.D., in the reign of Nero (Orelli, Insc. 3115). It had been preceded by SC. Hosidianum (A.D. 47), referred to in the same