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pose of securing legacies or trusts, or if creditors have entered upon the estate ; and the same is true where the mother possesses for behoof of her unborn child, for that is also inconsistent with 'full' possession.
3. POMPONIUS. The possession which the seller is bound to give is of such a nature that, if it be set aside by legal process, it is held that delivery has never been given.
1. If a purchaser has stipulated for full possession and brings an action on the stipulation, he cannot sue for the fruits of the thing in that action ; for even a stipulation that a piece of land shall be given [in property) to a person, although it is held to imply a stipulation that full possession shall also be given, does not include the prestation of the fruits, and on the other hand nothing can be imported into the stipulation : but the action on purchase is still available for enforcing the claim to the fruits.
2. If I buy the right to a footpath, or to a drove-road, or to a carriage-road, or to an aqueduct over your lands, there is no possible mode of delivering full possession; you must therefore give security that you will do nothing to impede me in the exercise of the right.
3. In a sale of wine, if there has been delay on the part of the seller in giving delivery, regard must be had, in assessing the damages, to the time when the highest price ruled, whether it be the date of the sale or of final judgment in the process, and to
§ 1. It appears from D. 45. 1. 52, 1, siquis uacuam possessionem tradi promiserit, non nudum factum haec stipulatio continebit, sed causam bonorum (cp. D. 22. 1. 4), that Ulpian and Papinian held that a stipulation possessionem tradi’ carried the right to the fruits from the time it was made.
$$ 3, 4. On damages for delay, see note to L. 1 supra, and Pothier, SS 58, 74 sq.
If no place of delivery is stipulated, the vendor's duty is to deliver at the place where the goods are at the time of the contract, and nowhere else, and the vendee must send for them. Pothier, $ 52.
uenit uel quo lis in condemnationem deducitur, item quo loco pluris fuit, uel quo uenit uel ubi agatur.
4. Quod si per emptorem mora fuisset, aestimari oportet pretium quod sit cum agatur, et quo loco minoris sit. autem uidetur esse, si nulla difficultas uenditorem impediat, quo minus traderet, praesertim si omni tempore paratus fuit tradere. item non oportet eius loci pretia spectari in quo agatur, sed eius ubi uina tradi oportet : nam quod a Brundisio uinum uenit, etsi uenditio alibi facta sit, Brundisi tradi oportet.
4. Paulus libro v ad Sabinum. Si seruum mihi ignoranti, sciens furem uel noxium esse, uendideris, quamuis duplam promiseris, teneris mihi ex empto, quanti mea intererit scisse, quia ex stipulatu eo nomine agere tecum non possum antequam mihi quid abesset.
1. Si modus agri minor inueniatur, pro numero iugerum auctor obligatus est, quia, ubi modus minor inuenitur, non potest aestimari bonitas loci qui non exstat. sed non solum si modus agri totius minor est, agi cum uenditore potest, sed etiam de partibus eius, ut puta si dictum est uineae iugera tot esse uel oliueti et minus inueniatur : ideoque his casibus pro bonitate loci fiet aestimatio.
5. PAULUS libro III ad Sabinum. Si heres testamento quid uendere damnatus sit et uendiderit,
L. 4 pr.—Noxius 'not free from noxa (guilt),' i.e. guilty of some delict for which the owner has not made amends, and for which the purchaser might therefore be called on to make amends or else surrender the slave. The rule was noxalis actio caput sequitur. Inst. iv. 8. 5.
$ 1. Pothier, $ 258.
L. 5 pr.—The heir was sometimes charged to sell to a legatee, sale being made the vehicle for bestowing the legacy, generally in the form per damnationem. Gaius, ii. § 201 sq. The legatee had an action on the will to compel the heir to conclude a contract of sale with him, and the same action lay to enforce
the place where the price was highest, whether it be the place where the contract was made or where action is brought upon it.
4. But if the delay has been on the side of the buyer, the damages should be assessed with reference to the price current at the time when the action is brought and at the place where it is lowest. Now the buyer is considered to be in delay, if there has been no impediment to hinder the seller from delivering, and especially if he has all the time been ready to deliver. Further, the prices current at the stipulated place of delivery will supersede the prices of the place where the action is brought; for if wine 'in Brundisium' be sold, delivery must be given at Brun disium, although the contract was made elsewhere.
4. PAUL. If you sell me a slave whom you know and I do not know to be a thief or liable to a noxal action, notwithstanding that you have engaged to pay the double, I can maintain the action on purchase against you for all the interest I had in being informed, because I cannot sue you under the stipulation in that behalf until I have actually sustained some loss.
1. If a piece of ground is found to measure less than was stated, the seller's warranty renders him liable in proportion to the acreage wanting, because where the quantity falls short it is impossible to estimate the quality of the deficiency. But action lies against the seller not only in respect of deficiency in the lands as a whole, but also when the separate portions are deficient,as where it is found that there is less than the stated number of acres under vines or olives : and in such cases the valuation will be made with reference to the quality of the ground.
5. PAUL . An heir, who is bound by the will to sell something and has
performance of the contract as an alternative to the actio ex empto. The obligations on the heir were exactly the same as in any other sale.
de reliquis, quae per consequentias emptionis propria sunt, uel ex empto uel ex testamento agi cum eo poterit.
1. Sed si falso existimans se damnatum uendere uendiderit, dicendum est agi cum eo ex empto non posse, quoniam doli mali exceptione actor summoueri potest, quemadmodum, si falso existimans se damnatum dare promisisset, agentem doli mali exceptione summoueret. Pomponius etiam incerti condicere eum posse ait, ut liberetur,
6. POMPONIUS libro ix ad Sabinum. Tenetur ex empto uenditor, etiamsi ignorauerit? minorem fundi modum esse.
1. Si uendidi tibi insulam certa pecunia et ut aliam insulam meam reficeres, agam ex uendito, ut reficias : si autem hoc solum, ut reficeres eam, conuenisset, non intellegitur emptio et uenditio facta, ut et Neratius scripsit.
2. Sed si aream tibi uendidi certo pretio et tradidi, ita ut insula aedificata partem dimidiam mihi retradas, uerum est et ut aedifices agere me posse ex uendito et ut aedificatam mihi
§ 1. If the whole essentials of an agreement are correctly understood, an error in the motives or interest operating on the will as an inducement to agree has in general no effect. Assent may be given owing to an unfounded expectation of some advantage, and the other contractor may be aware of the mistake; still this is irrelevant in law, provided the latter did not induce the false hope. Id quoque quod ob causam datur, puta quod negotia mea ab eo adiuta putaui, licet non sit factum, quia donari uolui, quamuis falso mihi persuaserim, repeti non posse (D. 12. 6. 65, 2, cp. ib. 52, 2; D. 12. 4. 3, 7; D. 18. 1. 34 pr., p. 60 supra). But if a person is, as here, induced to give a promise by the mistaken idea that he is under a legal obligation to do so, such a case forrns an exception. The error here vitiates the consent; it grounds a condictio indebiti for release from the promise, and serves also as an equitable defence to an action by the promisee. This is sometimes called falsa causa (* fausse cause, French Civil Code, art. 1131).
done so, can be sued by an action either on the contract or on the will for all claims necessarily arising out of the contract of sale.
1. But if he has sold under a mistaken idea that the will ordained him to sell, it must be observed that the action on the contract is incompetent against him, for he can elide the claim by the plea of fraud, just as that defence would defeat an action upon a stipulation to give something where the promiser had been under the mistaken belief that he was legally bound to give it. Pomponius remarks that he can also bring a condictio incerti to obtain his release.
6. POMPONIUS. The seller is subject to the action on purchase, although he was unaware that the lands contained less than he stated.
1. If I have sold you a tenement for a fixed sum and an undertaking that you will repair another tenement of mine, I can bring an action on sale against you to have the repairs done : but if the only consideration agreed on was that you should repair the house, that is not regarded as a contract of sale, as Neratius also remarks.
2. But if I have sold you a vacant plot for a fixed price, and have delivered it on condition that, after building a block of houses on it, you shall re-convey one half of it to me, I can bring an action against you both to compel you to build and to
L. 6 pr.—Ignorauerit is a necessary emendation. Cp. L. 11,
§ 1. There must be a price in numbered moneys, but the whole consideration need not be in money. The buyer may, as the complement of the price, bind himself ad factum praestandum. Cp. L. 28 post. He might also supplement the fixed price by undertaking to share with the seller the profit made on a re-sale, or to give him the whole profit (L. 13, § 24 post; D. 18. 1. 7, $ 2, p. 22 ante).
§ 2. This is a somewhat complicated sale; the buyer of the site is taken bound to build and then to give back half the block. The ordinary course was for the owner of the ground to give out