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3. Frumenta quae in herbis erant cum uendidisses dixisti te, si quid ui aut tempestate factum esset, praestaturum : ea frumenta niues corruperunt: si immoderatae fuerunt et contra consuetudi. nem tempestatis, agi tecum ex empto poterit.

wished to recover on a sale made to his slave, it was not enough for him to tender the price up to the amount of the slave's peculium merely (D. 21. 1. 57 pr.). On the same principle it is here decided that one of several heirs of the purchaser cannot by the actio ex empto compel delivery of his, share of the res vendita without tendering the full price,--the prestation is indivisible, unless the seller chooses to sever it. Pothier, $$ 63, 64.

In the case here figured it was a special term (lex) in the contract that payment of the price should be held a condition precedent to delivery of the possession. We may conclude that, apart from such special agreement, the vendor and the vendee were bound to make or be ready and willing to make their prestations simultaneously. It appears from Gaius, iv. § 126, that if the vendor brought an action for the price before he had given delivery, the vendee could plead what is called in C. viii. 45. 5 the exceptio doli, in D. 44. 4. 5, 4 the exceptio mercis non traditae, and by modern civilians the exceptio non adimpleti contractus, viz. 'ut ita demum ei emptor damnetur, si ei res quam emerit tradita sit,' that is to say, he could plead non-implement by the seller, not as a bar to the action, but as a bar to judgment; the plea could be met in the ordinary case by the pursuer offering delivery in the course of the process, or it could be elided replicando by averring a special agreement respecting the sequence of the prestations (si praedictum est ne aliter emptori res traderetur quam si pretium soluerit). The plea would thus lead to concurrent performance of the obligations under the contract, unless there was a special condition to the contrary. So far as the texts show, there was no difference between the position of the buyer and the seller—either could competently plead the exceptio when sued by the other.

The view here stated seems to be the correct one. It should be added, however, that some writers hold that the pursuer was bound, as a condition of raising an action on the contract, to

3. In selling a crop of corn in the blade, you undertook to be responsible for damage done by stormy weather: the corn was completely spoiled by a fall of snow; if it was exceptional and unusually severe, an action on purchase will lie against you.

prove that he had fulfilled the obligation incumbent on him, or was willing to do so. But as a concluded contract of sale produced mutual obligations which, unless otherwise agreed, were immediately prestable, there was a sufficient ground of action independent of actual or preferred performance (D. 19. 4. 1, $$ 1, 2); and the equity of the case was sufficiently met by allowing the defender, when convened, the exceptio doli, that is, he could plead that he should not be ordained to perform while his counter-claim arising out of the same agreement remained unsatisfied.

In English and Scots law the rule is that ‘unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions' (S. G. B. § 30). “Where the bargain is simple and without special stipulation, the buyer's obligation is to pay immediately; and the seller is entitled to demand and have action for payment, on offering delivery of the thing, or proving the delivery made, or on showing that the thing has perished by accident' (Bell on Sale, p. 103). See the cases in Benj. p. 582 sq., and Bell, Prin. § 100.

§ 3. Possibly ui has here the same force as uis maior ‘unavoidable calamity,' 'act of God.' For tempestatis Salmasius conjectured tempestates, which is ingenious but not necessary.

The decision is that the undertaking in question does not cover ordinary losses, such as might occur in any average year, but only damage due to some extraordinary catastrophe, which goes to show that, if one undertook to answer for casus, he was in general responsible whether the damage was preventible by human care and foresight or not, and even for casus insolitissimi (Mommsen). It is to be inferred from this passage that, where there is no stipulation throwing the risk on the seller, a standing crop is at the risk of the buyer frorn the moment the sale is completed; the sale is not conditional like that of a future crop (L. 8 pr. p. 24 supra).

79. LAUOLENUS libro v ex posterioribus LABEONIS. Fundi partem dimidiam ea lege uendidisti, ut emptor alteram partem, quam retinebas, annis decem certa pecunia in annos singulos conductam habeat. Labeo et Trebatius negant posse ex uendito agi ut id quod conuenerit fiat. ego contra puto, si modo ideo uilius fundum uendidisti ut haec tibi conductio praestaretur: nam hoc ipsum pretium fundi uideretur, quod eo pacto uenditus fuerat : eoque iure utimur.

80. LABEO libro v posteriorum a IAUOLENO epitomatorum.

Cum manu sata in uenditione fundi excipiuntur, non quae in perpetuo sata sunt excipi uiderentur, sed quae singulis annis seri solent, ita ut fructus eorum tollatur: nam aliter interpretantibus uites et arbores omnes exceptae uidebuntur.

1. Huius rei emptionem posse fieri dixi: 'quae ex meis aedibus in tuas aedes proiecta sunt, ut ea mihi ita habere liceat, deque ea re ex empto agi.

2. Silua caedua in quinquennium uenierat: quaerebatur, cum glans decidisset, utrius esset. scio Seruium respondisse, primum

L. 79.—Here, as in L. 75 supra and D. 19. 1. 21, 4, the contract of sale contains within itself a completed contract of location in favour of the vendor, and in two of these texts it is expressly said that the subsidiary contract formed part of the consideration for the sale. Consequently, the later jurists were of opinion that the ordinary action on the contract was competent to enforce the promise to give or take the lease; the earlier jurists held the contrary view, probably on the ground that the lease was itself an actionable contract. In the example here given the arrangement is in favour of the seller ; but it would in some cases be for the buyer's interest to get a lease of the lands retained by the seller, and he might pay a higher price in view of that (Bechmann).

Uidetur has been proposed for uideretur here, and uidentur for uiderentur in L. 80 pr.

L. 80 pr.—Compare L. 40, 3, p. 88 supra.

1

79. JAVOLEN. You have sold one half of an estate on condition that the purchaser shall take a ten years' lease of the other half which you retained at a fixed yearly rent. According to Labeo and Trebatius you cannot bring an action on sale to enforce the execution of this bargain. I hold the contrary opinion, provided that you took a lower price for the land in consideration of the lease being effected, for the fact that the sale was concluded subject to this agreement may be regarded as a consideration for the lands: this is now settled law.

80. LABEO.

When a contract for the sale of land contains a clause reserving all that is sown,' the reservation is not held to cover things laid down once for all, but only what is sown and cropped every year; for if the other construction were adopted, vines and trees of all kinds would fall within the clause.

1. In my opinion the right to continue to rest the beams of my house on your wall can be a valid subject of purchase, and an action on purchase will lie to enforce the right.

2. The cuttings of a coppice for five years were sold, and the question arose to which of the parties did the acorns which fell off belong. I know that Servius' opinion was that we must be

§ 1. The owner of property could create both praedial and personal servitudes by sale; see for examples, D. 8. 1. 20 (uia aut aliquod ius fundi); D. 18. 6. 8, 2 (ususfructus); D. 19. 1. 3, 2; ib. 6, 5. In the present case the purchase legalises the encroachment already made on the neighbouring property. Proiecta sunt refers to resting a beam on a neighbour's wall, which is usually called ius tigni immittendi ; sometimes proiectum means a balcony (maenianum) projecting over another's land, but not supported by it (D. 43. 17. 3, 5).

$ 2. On silua caedua see L. 40, 4, p. 88 supra. Glans (acorn) was used in a general sense of all fruits growing on trees or plants (D. 50. 16. 236, 1).

Hae is probably the right reading in place of haec.*

sequendum esse quod appareret actum esse : quod si in obscuro esset, quaecumque glans ex his arboribus quae caesae non essent cecidisset uenditoris esse, eam autem quae in arboribus fuisset eo tempore cum haec * caederentur emptoris.

3. Nemo potest uideri eam rem uendidisse, de cuius dominio id agitur, ne ad emptorem transeat, sed hoc aut locatio est aut aliud genus contractus.

81. SCAEUOLA libro vii digestorum. Titius cum mutuos acciperet tot aureos sub usuris, dedit pignori siue hypothecae praedia, et fideiussorem Lucium, cui promisit intra triennium proximum se eum liberaturum : quod si id non fecerit die supra scripta et soluerit debitum fideiussor creditori, iussit praedia empta esse, quae creditoribus obligauerat. quaero, cum non sit liberatus Lucius fideiussor a Titio, an, si soluerit creditori, empta haberet supra scripta praedia. respondit, si non ut in causam obligationis, sed ut empta habeat, sub condicione emptio facta est et contractam esse obligationem.

1. Lucius Titius promisit de fundo suo centum milia modiorum frumenti annua praestare praediis Gaii Seii: postea Lucius Titius uendidit fundum additis uerbis his : 'quo iure quaque condicione ea praedia Lucii Titii hodie sunt, ita ueneunt itaque habebuntur:'

§ 3. If the intention is to reserve the property in the thing, the transaction is either letting to hire, or else an innominate contract, if the counter-prestation be something other than money; in any case it is not sale. This does not mean that the obligation in sale is always to give a good title, but only that the seller must do so if he can, that is, if he is owner. The purpose of the buyer is to acquire such right and title as the seller actually has, and the seller's intention must not be at variance with that purpose. See L. 25, 1, p. 50 supra, and D. 19. 1. 11, 2. On the other hand, a special covenant obliging the seller to pass the property was, according to Celsus, equally inconsistent with the idea of sale (D. 12. 4. 16).

L. 81 pr.—Compare the circumstances in D. 13. 7. 34. A

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