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LIBER DECIMUS NONUS.

TIT. I.

DE ACTIONIBUS EMPTI UENDITI.

1. ULPIANUS libro XXVIII ad Sabinum. Si res uendita non tradatur, in id quod interest agitur, hoc est quod rem habere interest emptoris : hoc autem interdum pretium egreditur, si pluris interest quam res ualet uel empta est.

L. 1 pr.–On the measure of damages for delay in delivery and for non-delivery, see this title LL. 3, $$ 3, 4; 11, SS 9–14; 13, 9; 21, $$ 2, 3; 22; 23; 25; 32; 43; Code iv. 49. 12; Pothier, Vente, $$ 69-80.

The English common law rule is that the party sustaining loss by breach of contract is, so far as money can do it, to be placed in the same position as if the contract had been performed. This is limited by the rule in Hadley v. Baxendale (1854) 9 Ex. 341, which, putting out of view what the parties may be supposed to have had in contemplation, sets up as an objective standard of damages what a reasonable man, with the same information as the parties had, would have contemplated as the probable result of the breach, if he had directed his mind to the question. The measure of general or ordinary damages (i.e. in a contract where there are no special circumstances) is the estimated loss arising directly and naturally from the breach itself. If the contract was made under special circumstances known to both parties, which, in the ordinary course of events, would occasion a special loss if the contract were broken, there is an implied liability to pay special damages for the special loss. See S. G. B. $ 55, and Hammond & Co. v. Bussey (1887) 20 Q. B. Div. 86, where, the seller having failed to supply coals answering the description 'steam coal,' and the buyer having resold with a similar warranty, the buyer received from the seller the costs of defending an action by the sub-purchaser for breach. The general rule in Hadley v.

Cp. Code iv. 49.

1

BOOK XIX.

TITLE I.

OF THE ACTIONS ON PURCHASE AND ON SALE.

1.

ULPIAN.

If the thing sold is not delivered, the buyer may maintain an action for damages, that is to say, for all the interest he can show in having the thing: of which the price is not always the measure—he may have an interest exceeding the value of the thing or the price put on it. Baxendale is stated in S. G. B. § 52, 2; it resolves in many cases into the convenient rule in sub-section 3—that, where there is an available market for the goods in question, the proper measure of damages is the difference between the contract price and the market price at the date of the breach.

The principles applied in Scotland are stated in Bell, Com. i. p. 478 sq.; Prin. $$ 31, 33, 115. They are substantially similar to the above-mentioned rules, with the exception that there is no absolute rule as to market price (Dunlop v. Higgins (1848) 1 H. L. Ca. at p. 403); there are cases in which the highest price after the day of sale, or the average price between the stipulated day of delivery and the date of the action, has been taken as the criterion of damages; but the only rule is that the whole circumstances of the case must be taken into account in assessing the amount. See, as to delay in delivery, Webster v. Cramond Iron Co. (1875) 2 R. 752; and English cases in Chalmers, Sale, p. 80.

This topic may be completed by a short reference to the question, Is the vendor held entitled to satisfy his obligation by paying damages, or can the vendee compel him to give delivery where that has not become impossible interitu rei or otherwise ? This has been considered a doubtful point in the civil law; Pothier quotes the authorities, particularly Paul, Sent. i. 13. 4, si id quod emptum est neque tradatur neque mancipetur, uenditor cogi potest ut tradat aut mancipet, and decides that the buyer

et

1. Uenditor si, cum sciret deberi, seruitutem celauit, non euadet ex empto actionem, si modo eam rem emptor ignorauit: omnia enim quae contra bonam fidem fiunt ueniunt in empti actionem. sed scire uenditorem et celare sic accipimus, non solum si non admonuit, sed et si negauit seruitutem istam deberi, cum esset ab eo quaesitum. sed et si proponas eum ita dixisse: nulla quidem seruitus debetur, uerum ne emergat inopinata seruitus, non teneor,' puto eum ex empto teneri, quia seruitus debebatur et scisset. sed [et] si id egit, ne cognosceret emptor aliquam seruitutem deberi, opinor eum ex empto teneri. generaliter dixerim, si improbato more uersatus sit in celanda seruitute, debere eum teneri, non si securitati suae prospectum uoluit. haec ita uera sunt, si emptor ignorauit seruitutes, quia non uidetur esse celatus qui scit, neque certiorari debuit qui non ignorauit.

2. PAULUS libro v ad Sabinum. Si in emptione modus dictus est et non praestatur, ex empto est actio.

1. Uacua possessio emptori tradita non intellegitur, si alius in ea legatorum fideiue commissorum seruandorum causa in could sue by the actio empti for specific performance, which the magistrate would enforce by execution militari manu, if necessary (Vente, $ 68). In England the remedy of specific performance was for long a privilege occasionally granted in the Equity Courts, and, though now somewhat extended, the right to it is still dependent upon the discretion of the judge: see S. G. B. § 53, reproducing § 2 of the Merc. Law Amendment Act, 1856 (whiclı was intended to assimilate English to Scots law in this respect, but did not go nearly the whole way). In Scotland, on the contrary, there is an absolute right to insist for implement of the contract by delivery of the goods, unless delivery is shown to be impossible. Bell, Com. i. p. 477; cp. Stewart v. Kennedy (1890) 15 App. Ca. at pp. 95, 102, 105.

$ 1. For dolus in connection with servitudes, see L. 39 infra; D. 21. 2. 69,5; and note on p. 108. This section aims at showing that fraud always grounds a claim against the seller, whether

1 si qua ? (Mom.)

1. If the seller knew of the existence of a servitude, and has concealed it, he cannot escape the action on purchase, provided the buyer did not know, for all dishonest dealing comes within the compass of that action. When I speak of the seller knowingly concealing a servitude, I refer not only to the case of his failing to give notice of it, but also of his denying its existence when the question is put to him. Even take it that he has said expressly 'No servitude actually exists, but I give no warranty against such unexpectedly coming to light,' he is in my opinion liable in an action on purchase if a servitude existed and he knew of it. If, again, he has schemed to keep the buyer in ignorance of a servitude burden, he is in my opinion liable under the same action. In short, the rule is that he is responsible for any misconduct in concealing a servitude, but not for seeking simply to protect himself against liability. These rules apply only where the buyer is ignorant of the existence of any such burden; for there can be no concealment from one who knows, and no duty of disclosure to one already informed.

2. Paul The action on purchase lies where the quantity delivered is less than was promised at the time of the sale.

1. The purchaser is not considered as having full possession delivered to him, so long as another is in possession for the purit takes the shape of suppressio ueri or suggestio falsi, and whatever legal devices may be employed to avert its consequences. If quia is the right reading, it must mean ‘in so far as' (quatenus).

L. 2 pr.—The following passages deal with declarations by the seller as to the size of a piece of ground :-h. t. LL. 4, 1 ; 6 pr.; 13, 14; 22; 42; D. 21. 2. 69, 6; ib. 45; C. viii. 45. 10. Cp. note, p. 86 supra.

§ 1. In the case supposed the heir has sold, but he cannot put the buyer in possession, because a legatee or some one on his behalf is already in possession custodiac causa (D. 36. 3. 1, 2), or the estate is bankrupt and in the hands of creditors, or the venter is in possession (see Digest, 37, tit. 9).

possessione est, aut creditores bona possideant. idem dicendum est, si uenter in possessione sit: nam et ad hoc pertinet uacui appellatio.

3. POMPONIUS libro ix ad Sabinum. Ratio 1 possessionis, quae a uenditore fieri debeat, talis est, ut, si quis eam possessionem iure auocauerit, tradita possessio non intellegatur.

1. Si emptor uacuam possessionem tradi stipulatus sit et ex stipulatu agat, fructus non uenient in eam actionem, quia et qui fundnm dari stipularetur, uacuam quoque possessionem tradi oportere 2 stipulari intellegitur nec tamen fructuum praestatio ea stipulatione continetur, neque rursus plus debet esse in stipulatione. sed ex empto superesse ad fructuum praestationem.

2. Si iter actum uiam aquae ductum per tuum fundum emero, uacuae possessionis traditio nulla est: itaque cauere debes per te non fieri quo minus utar.

3. Si per uenditorem uini mora fuerit, quo minus traderet, condemnari eum oportet, utro tempore pluris uinum fuit, uel quo

For the obligation to give exclusive possession, see note on p. 50. The seller's primary obligation to deliver implies a duty to free the res vendita of all burdens and charges in order to hand over the full legal possession (L. 52 infra). Ex his praediis quae wercata es, si aliqua a uenditore obligata et necdum tibi tradita sunt, ex empto actione consequeris ut ea a creditore liberentur (C. viii. 45. 5; Cp. Pothier, SS 42-46). This applies generally to all burdens not disclosed or known to the vendee, except praedial servitudes (p. 108 ante).

It does not seem clear whether there is an implied warranty of freedom from charges by English law (Benj. p. 705); but it is an important doctrine of Scots law that the seller is bound to discharge all incumbrances in the case of heritage, and all duties, warehouse rents, and other charges in the case of goods.

L. 3 pr.—Non uidetur possessionem adeptus is, qui ita nactus est ut eam retinere non possit (D. 41. 1. 22). The seller must give jural possession, possessio ad interdicta. Cp. L. 11, § 13. i traditio ? (Cuj.)

oportere deb.

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