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2. ULPIANUS libro I ad Sabinum. Inter patrem et filium contrahi emptio non potest, sed de rebus castrensibus potest.
1. Sine pretio nulla uenditio est : non autem pretii numeratio, sed conuentio perficit sine scriptis habitam emptionem.
L. 2 pr.–So rigorously did the early law insist on the unity of the family, and its subordination to its one head, that no dependent member of it could hold property for himself; and it was a corollary of this, that there could be no civil obligation between a filiusfamilias and his paterfamilias, or any other person subject to the same potestas (D. 5. 1. 11; Gaius, iv. 78), though there might be natural obligation. In the early Empire this incapacity was removed, to a limited extent, both as regards property and obligation : a filius might have a separate estate belonging to him in full property, consisting of his acquisitions as a soldier on active service (castrense peculium), in respect of which he could contract even with his father on an equal footing: filii familias in castrensi peculio uice patrum familiarum funguntur (D. 14. 6. 2). The same doctrine was extended, under Constantine and his successors, to a son's earnings in the Civil Service and the Church (peculium quasi-castrense).
§ 1. It was a settled rule that a definite (certum) price was of the essence of sale, Inst. iii. 23. 1 ; and further, the price must be serious (L. 36), i.e. there must be intention to exact it; but it was sufficient for the validity of the contract that there had once been a price really incumbent upon the buyer to pay: nonpayment, or release from payment at a later date, did not nullify the sale. Code iv. 38. 9: empti fides ac uenditi sine quantitate nulla est : placito autem pretio non numerato, sed solum tradita possessione istiusmodi contractus non habetur irritus, nec idcirco is qui comparavit minus recte possidet quod soluta summa quam dari conuenerat negatur. Cp. Pothier, Vente, $ 18.
The requirement of certainty did not mean that the price must of necessity be stated in the contract, but only that it should be determinable in the manner therein agreed on.
In particular, it may here be noted that, according to a special decision of Justinian (Code iv. 38. 15; cp. Inst. iii. 23. 1), an agreement that the price should be fixed by the valuation of a third party named
There can be no contract of sale between a father and son, except with reference to what falls under the son's peculium castrense.
1. There can be no sale without a price; but it is not the payment of the price, but the agreement of parties, which completes a sale carried through without writing.
was effectual if he actually fixed a price; but if such party would not, or could not make a valuation, the sale was void, because no price had been settled. It was thus, in principle, a conditional sale. The decision was in accordance with the opinion of Proculus; Labeo had held such an agreement void (G. iii. 140). It follows from Code I. c. that the arbitrator must be named, (cp. D. 45. 1. 43); and that his valuation was binding, however capricious it might be, though such a result is contrary to the general principle that a reference to an arbitrator, in a bonae fidei contract, is to be taken as a reference to the arbitrium boni viri (D. 50. 17. 22, 1). But see Pothier, Vente, $ 24.
If there was no agreement at all about the price, or the mode of ascertaining it,—e.g. if I order goods without asking the price, or give out a job without mentioning terms, that was not contract of sale at all, but an innominate contract, under which a money equivalent for the goods delivered or work done could be recovered by actio praescriptis verbis : if the sum claimed was unreasonable, the judge had power to modify it. See Inst. iii. 24. 1; D. 19. 5. 22; 17. 2. 79; 18. 1. 35, 1.
The principles bearing on agreement to sell at a valuation have been adopted into English law (Vickers v. Vickers (1867) L. R. 4 Eq. 529, at p. 535). In that case one party, after appointing a valuer, refused to allow him to proceed with the valuation, and thus prevented the completion of the contract; held, that there was no existing contract which the Court could specifically enforce, and that it was impossible to substitute another arbitrator.
But in cases where the contract does not fix the price, or point out the mode of ascertaining it, our law has developed the idea of an implied understanding that the buyer shall pay a reasonable price. See S. G. B. $$ 8, 9; Benj. p. 88.
Proof of Sale. The general rule was, that none of the
3. ULPIANUS libro XXVIII ad Sabinum. Si res ita distracta sit, ut si displicuisset inempta esset, constat non esse sub condicione distractam, sed resolui emptionem su condicione. consensual contracts required to be in writing (Inst. iii. tit. 22): hence, in countries which have followed the Roman law, all kinds of evidence, parole as well as written, are admitted in proof of the commercial contract for the sale of goods. The rules of evidence in England and America are peculiar, the famous Statute of Frauds (29 Chas. II. c. 3, sec. 17) having made a note or memorandum in writing indispensable for a valid contract' for the sale of any goods, wares, and merchandise, for the price of £10 or upwards, except the buyer has received part of the goods, or has given something in earnest or in part payment; see S. G. B. § 4. By the statutory law of most countries writing is indispensable for the sale of certain kinds of property not coming under the description of merchandise, e.g. lands, ships, patent rights, etc.; but it does not seem to have been essential in any case by Roman law.
The parties might, however, agree to reduce the contract to writing, and in that case Justinian enacted that its completion was suspended till the deed or record was duly executed; and in the ineantime there was locus poenitentiae, so that either party might resile, subject to the penalty, if buyer, of forfeiting the arrha he had given (if any), or, if seller, of restoring double that which he had received. Code iv. 21. 17; Inst. iii. 23 pr. His object was to obviate disputes, which had previously occurred, as to the effect of such an agreement, writing having been employed sometimes with the intention of suspending the contract, sometimes merely to preserve evidence of its terms. Cp. Ersk. iii. 2. 2.
L. 3. A special agreement of this sort ut, si res displicuerit, inempta sit’ (hence known as pactum displicentiae) belongs to the class of adjected pacts which were in use to be made either at the time of the contract as subsidiary to it, or after an interval for the purpose of modifying the existing obligations. The party in whose favour this pact was made (usually the buyer) reserved power to himself to resile from the contract at his pleasure if he were dissatisfied. Sometimes the right was made conditional
3. ULPIAN. When a thing is sold on the terms that, if disapproved by the buyer, it shall not be held as bought, it is settled that it is not the completion, but the recission of the sale that is made dependent upon the condition. upon payment of a fine (multa poenitentialis); sometimes a period within which it must be exercised was agreed upon; if no period was fixed, disapproval might be intimated, and the thing returned within sixty days—this was the statutory rule, at all events, in sales of slaves (D 21. 1. 31, 22 and 23). If the party empowered did resile, it was held that there had been an effective sale which was now put an end to by a resolutive condition : sed et illa emptio pura est, ubi convenit ut si displicuerit, intra diem certum inemptas it (D. 41. 4. 2, 5; cp. C. iv. 58. 4; D. 18. 5. 6; 43. 24. 11, 13). It was, however, in the power of the parties to invert this agreement, so as to give it the character of a suspensive condition (condition precedent') (D. 19. 5. 20 pr., 1; Inst. iii. 23. 4). The actions available for enforcing the pact were the actio emti (D. 19. 1. 11, 3) and the actio redhibitoria, under the edict of the aediles (C. iv. 58. 4). If the party resiling had in the meantime constituted any real rights over the subject, they stood; e.g. if the buyer had hypothecated the thing, the seller could demand that before rescinding the contract he should clear off the hypothec (D. 20. 6. 3). Where the condition is resolutive, the most important effect is that the ownership of the thing sold passes by delivery to the vendee, who can divest himself of it by giving timeous notice of dissatisfaction. Suppose the thing has been injured or totally destroyed without the fault of the vendee, is he still entitled to disapprove and have the sale cancelled ? There seems to be no direct authority on the point, since Julian's statement in D. 18. 2. 2, 1, that the risk passes with the property under a resolutive condition, may be meant to apply only to in diem addictio and such other conditions as are not dependent on the mere will of the party seeking to cancel the contract. Some civilians think that the vendor bore all risks; others hold that the sale could not be cancelled if the thing had ceased to exist, i.e. that the risk of total destruction lay upon the vendee according to the maxim res perit domino, whereas the risk of deterioration remained with the vendor.
4. POMPONIUS libro ix ad Sabinum. Et liberi hominis et loci sacri et religiosi, qui haberi non potest, emptio intellegitur, si ab ignorante emitur,
5. PAULUS libro v ad Sabinum. quia difficile dinosci potest liber homo a seruo.
The corresponding bargain in our law is ‘sale on trial,' or 'on approbation. As to the passing of the property in goods sold on approval, see S. G. B., § 20, rule 4. Head v. Tattersall (1871) 7 Ex. 7, is an example of such a provision operating as a resolutive condition ('condition subsequent '). A bought a horse of B, warranted to have been hunted with the Bicester hounds, under the condition that he was to be at liberty to return it, if it did not answer its description, up to the following Wednesday. While in A's possession, the horse took fright and sustained injuries, though not through any neglect or default on his part. A returned the horse within the time, as not corresponding to the warrantry, and sued B for the price he had paid. Held, that A's right to return was unaffected by the accident that happened to the horse while in his possession; and observed, that the effect of the contract was to vest the property in the buyer, subject to a right of rescission in a particular event, when it would revest on the seller, who as eventual owner should bear the risk of depreciation. As a general rule, however, where goods are sent on trial or on sale or return,' the condition, while unfulfilled, suspends the contract, and there is no completed sale' until the approval is given either expressly, or by implication resulting from keeping the goods beyond the time allowed for trial. See Elphick v. Barnes (1880), 5 C. P. D. 321, for circumstances in which the sale of a horse, under a condition of eight days' trial, was held not to be absolute, so long as the vendee had an option to return; the horse having died on the third day without fault of either party, the maxim res perit domino was applied, and the vendor held not entitled to recover the price.
In the Scotch case, Graham v. Pollock (1763) M. 14198, effect was given to a pactum displicentiae. Brown v. Marr (1880) 7 R. 427, and Macdonald (1888) 15 R. 998, may be consulted for divergent opinions on the question whether the condition implied in a bargain of sale or return' is resolutive or suspensive.