sibi adquireretur, neue quis negotiandi causa eorum quid emeret uenderetue: poena in eum qui aduersus senatus consultum fecisset constituta est, ut duplum eius quanti emisset in aerarium inferre cogeretur, in eum uero qui uendidisset, ut irrita fieret uenditio. plane si mihi pretium solueris, cum tu duplum aerario debeas, repetes a me: quod a mea parte irrita facta est uenditio. nec solum huic senatus consulto locus erit si quis suam uillam uel domum, sed et si alienam uendiderit.

53. GAIUS libro XXVIII ad edictum prouinciale.

Ut res emptoris fiat, nihil interest, utrum solutum sit pretium an eo nomine fideiussor datus sit. quod autem de fideiussore diximus, plenius acceptum est, qualibet ratione si uenditori de pretio satisfactum est, ueluti expromissore aut pignore data, proinde fit ac si pretium solutum esset.

54. PAULUS libro I ad edictum aedilium curulium.

Res bona fide uendita propter minimam causam inempta fieri non debet.

55. PAULUS libro II ad edictum aedilium curulium. Nuda et imaginaria uenditio pro non facta est et ideo nec alienatio eius rei intellegitur.

inscription, which seems to have enacted severe penalties against any person pulling down a house in order to sell the site for more than he gave for it. Probably the Volusian SC. added a prohibition against trafficking in the materials and fixtures incorporated in a building in order to make money (negotiandi causa), the only check upon speculation we find in the Digest. Cp. D. 39. 2. 48: Si quis ad demoliendum negotiandi causa uendidisse domum partemue domus fuerit conuictus: ut emptor et uenditor singuli pretium, quo domus distracta est, praestent, constitutum est : ad opus autem publicum si transferat marmora uel columnas, licito iure facit: probably in that case the thing was not delivered, which would account for the difference in the penalty. In the present case the sale is annulled, the effect of which is to make the seller lose the property which he has delivered, and also his action for the price; the property may very likely have been

town or country house in order to make a profit, or to traffic in the sale or purchase of the materials, and fixing as the penalty for a contravention, in the case of the buyer, the forfeiture to the Treasury of double the amount of the purchase-price, and in the case of the seller the cancelling of the sale. Clearly if you have paid me the price, as you have to pay the double of it to the Treasury, you can bring an action for repayment, because on my side also the sale is avoided. The decree applies to the sale of a town or country house belonging to another as well as to the sale of one's own.

53. GAIUS.

As regards passing the property in a thing to the buyer, it is all one whether the price has been paid, or security given for it. The expression security,' however, is to be interpreted liberally; any method by which the price is secured to the seller-for example, by a surety or by pledge—is equivalent to payment.

54. PAUL

A sale carried through in good faith ought not to be set aside for a trifling cause.

55. PAUL.

A merely colourable sale is an absolute nullity, and so the object is not held to have been alienated at all.

confiscated. The same desire to secure the permanence of buildings, and protect the amenity of the city, may be traced in a SC. of the time of Trajan, ea quae aedibus iuncta sunt legari non possunt (D. 30. 1. 41, 1; Pothier, § 12).

L. 53. See L. 19 supra, p. 41 sq. Expromissor was a cautioner or surety who intervened in the room of the debtor as principal in a distinct and separate obligation; the adpromissor or fideiussor on the other hand, simply became joint-debtor under an accessory obligation. The first is a form of privative intercession; the other two are forms of cumulative intercession. See Inst. iii. tit. 20.

L. 55.-See D. 45. 7. 54: contractus imaginarii etiam in

56. PAULUS libro L ad edictum.

Si quis sub hoc pacto uendiderit ancillam, ne prostituatur et, si contra factum esset, uti liceret ei abducere, etsi per plures emptores mancipium cucurrerit, ei qui primo uendidit abducendi potestas fit.

57. PAULUS libro v ad Plautium.

Domum emi, cum eam et ego et uenditor combustam ignoNerua Sabinus Cassius nihil uenisse, quamuis area

raremus.

maneat, pecuniamque solutam condici posse aiunt. sed si pars domus maneret, Neratius ait hac quaestione multum interesse, quanta pars domus incendio consumpta [sit, quanta] permaneat, ut, si quidem amplior domus pars exusta est, non compellatur emptor perficere emptionem, sed etiam quod forte solutum ab eo est repetet: sin uero uel dimidia pars uel minor quam dimidia exusta fuerit, tunc coartandus est emptor uenditionem adimplere aestimatione uiri boni arbitratu habita, ut, quod ex pretio propter incendium decrescere fuerit inuentum, ab huius praestatione liberetur.

emptionibus iuris uinculum non obtinent, cum fides facti simulatur, non intercedente ueritate. Cp. D. 50. 17. 16: Imaginaria uenditio non est pretio accedente. A sale may be merely a cover for donation (L. 36, p. 80), in which case it breaks down for want of a price seriously meant; and if the price is elusory, it is still only a fictitious sale (uenditio uno nummo).

56.-Where

L. 56. Where a clause such as ut manumittatur' or 'ne prostituatur' was introduced in the sale of a slave, it was often accompanied by a pact that in case of default the seller was to be entitled to recover the property in the slave, manum inicere et mancipium sibi adducere. The law jealously enforced the clause ne prostituatur in favour of the slave: if the seller consented to a breach of it he lost the right of manus iniectio, and the slave became free. The condition attached to the slave, though she were bought and sold over and over again without any mention of it. Unless the seller stipulated expressly for the right to recover her, she became ipso facto free if the condition was violated, and the contravener lost the rights of patron (C. iv. 56. 1; D. 18. 7. 6).

If a female slave is sold under an agreement that she is not to be made a public prostitute, and that the seller in case of a breach of this covenant shall be entitled to reclaim her, the original seller is at liberty to remove her though she has passed through the hands of several purchasers.

57. PAUL.

I bought a house, neither the seller nor myself being aware that it had been burnt down. Nerva Sabinus and Cassius hold that although the site is left there has been no sale of anything, and that the purchase-price is recoverable by personal action. But if a part of the house remains standing, Neratius says this question turns very largely on how much of the house is burnt down and how much is left standing; thus if the larger part of the house is destroyed, the buyer cannot be compelled to go through with the contract, indeed he may demand back any money he may have paid; but if the half or less than the half is burnt down, then the purchaser has no alternative but to implement the contract at a valuation made in accordance with the opinion of a reasonable man for the purpose of ascertaining the depreciation in value due to the fire and deducting it from the price.

L. 57. A series of somewhat arbitrary rules is stated in this lex and the following one regarding the legal effects of accidental damage happening to the subject-matter of a contract of sale prior to the completion of the contract. They form a supplement to L. 15 pr. (p. 36 supra), discussing the consequences of partial extinction of the res vendita from the same point of view as was there taken in considering the result of total destruction. The latter was held to make the inchoate contract a nullity by rendering performance quite impossible, and here similarly partial destruction excludes anything more than partial performance. The other possible category to which cases of this kind are often referred is error. But the attempt here seems to be to lay down. rules as to the validity and the effects of the contract, conform

1. Sin autem uenditor quidem sciebat domum esse exustam, emptor autem ignorabat, nullam uenditionem stare, si tota domus ante uenditionem exusta sit: si uero quantacumque pars aedificii remaneat, et stare uenditionem et uenditorem emptori quod interest restituere.

2. Simili quoque modo ex diuerso tractari opertet, ubi emptor quidem sciebat, uenditor autem ignorabat: et hic enim oportet et uenditionem stare et omne pretium ab emptore uenditori, si non depensum est, solui uel si solutum sit, non repeti,

3. Quod si uterque sciebat et emptor et uenditor domum esse exustam totam uel ex parte, nihil actum fuisse, dolo inter utramque partem compensando, et iudicio quod ex bona fide descendit, dolo ex utraque parte ueniente, stare non concedente. able at once to equity and to the probable intention of the innocent party or parties as to entering into the contract, supposing them to have known how much of the res vendita was prestable and how much was not. The example given is the sale of a house, where it is to be assumed that the building is the primary object, and the site a secondary consideration with the purchaser; for although the site is prestable after the house is burnt to the ground, it is treated as a negligeable quantity (nihil uenisse quamvis area maneat), so that practically this is a case of total extinction of the object sold.

The various possible cases are taken up in the four sections of this lex seriatim, according to the state of the parties' information and the extent of the damage.

I. Neither of the parties knew of the fire (pr.). In case of total loss, the sale is null on the principle of L. 15 pr., and the price, if paid, can be recovered. In case of partial loss, a further distinction is drawn according to the proportion which the part left standing bears to the whole. If it is less than a half, it appears to be left to the vendee's option to hold to the contract (paying, of course, a reduced price), or to reject it and have back his money (non compellatur emptor perficere emptionem). If, on the other hand, half or more than half of the building is saved, the contract is valid; the vendee cannot throw it up, but he has only to pay what may in view of all the circumstances be held to be a fair price. The reading in the pr. is doubtful in two