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4. POMPONIUS. The purchase of a free man and of sacred and religious ground, which is incapable of appropriation, is considered valid, provided the buyer is ignorant of their true character,
because it is difficult to distinguish a free man from a slave.
LL. 4, 5.-When an agreement was impossible of performance because it stipulated for something either physically impossible or, which was held equivalent (D 45. 1. 137, 6), inconsistent with legal principle, the agreement was void according to the general rule' imposibilium nulla obligatio,' and the obligor got off his engagement scot free. But an exception was made in favour of one who bought a freeman under the impression that he was a slave, probably for the practical reason: stated in L. 5 that such a mistake was highly excusable. Some of the conditions under which the peculiar institution’existed at Rome subjected the purchaser, no matter how careful, to a serious risk of error; for, in addition to the ordinary abuses of the slave trade, such as kidnapping, substitution, and the like, with which readers of Plautus are familiar, it was common for free men to let themselves be sold as slaves in order to share in the price—a practice so rife under the Empire that the fraud had to be repressed by refusing such persons the right to assert their freedom (D. 40. tit. 13); and, further, it was only to a limited extent that the slave population was distinguishable by marked characteristics of race or colour. The sale of a supposed slave was, therefore, treated as the sale of a thing not belonging to the seller; the bona fide purchaser was protected against the risk of the putative slave proving his free status, just as he was in the other case against eviction at the hands of the true owner, by the stipulatio duplae. See infra L. 34, 2; 70 (which proves that fraud on the seller's part was not an essential condition of his responsibility, as might be inferred from Inst. iii. 23. 5); D. 21. 2. 39, 3.
But Pomponius does not treat the sale of a free person as the only exceptional case; he appears to hold generally that, if the buyer is in good faith, every sale of a res extra commercium is valid to the same effect, i.e. it subjects the seller to liability as
6. POMPONIUS libro ix ad Sabinum.
Sed Celsus filius ait hominem liberum scientem te emere non posse nec cuiuscumque rei si scias alienationem [prohibitam] esse : ut sacra et religiosa loca aut quorum commercium non sit, ut publica, quae non in pecunia populi, sed in publico usu habeantur, ut est campus Martius.
1. Si fundus annua bima trima die ea lege uenisset, ut, si in diem statutum pecunia soluta non esset, fundus inemptus foret et
for eviction : and the passage in the Institutes (iii. 23. 5), is to be read in the same sense. Ulpian, Paul, and Modestine, on the other hand, appear to indicate the contrary opinion (LL. 22-24; 34, 1; 62, 1 infra, and notes). Savigny (Obl. ii. § 81), with many able commentators, denies that there is any contradiction in the passages cited; but even among those who agree in denying that there is an 'antinomy,' there is no consensus of opinion as to the meaning of the authorities; some hold that the validity of the sale is generally recognised, others find the opposite doctrine in all the texts.
L. 6 pr.—Some inferior MSS. insert 'prohibitam' before esse : if you know that the law declares them incapable of alienation.' Some editors get the same sense by inserting non.
A construction for the genitive cuiuscumque rei' may be got either by supplying 'emptionem esse' from what precedes, or by repeating alienationem.'
Res sacrae and religiosae are defined in Inst. ii. 1. 7-9; Gaius, ii. SS 6, 9. Res publicae are of two kinds : (1) some belong the people in the same sense as things belong to a private owner (e.g. the ager publicus—crown lands,' as we say), and these were said to be in patrimonio seu pecunia populi—they were capable of alienation, and were the subject of contract quite commonly ; (2) others are in usu publico, i.e. owing to their nature or destination no private person can own them, but all may use themthey cannot be alienated so long as they retain their character.
§ 1. This is an example of the pact known as lex commissoria, which entitles one party to a contract to treat it as a nullity in case the other party fails to fulfil his engagements at the proper time (D. 18. tit. 3. possim). In practice it was imposed on the buyer,
6. POMPONIUS. But Celsus the younger says that you cannot knowingly purchase a free man, nor anything whatever which you know to be inalienable ; for example, sacred and religious spots, or those which are withdrawn from commerce, as public places, which are not held to belong patrimonially to the community, but to be dedicated to the public use, e.g. the Campus Martius.
1. If lands are sold to be paid for by instalments in one, two, and three years, under the condition that, if the price be not paid
in the interest of the seller, as a security for payment of the price in credit sales, and it could not be enforced by the buyer against the will of the seller.
As soon as the price was due and unpaid, the seller could, without making a formal demand for payment, cancel the sale, or at his option hold the buyer to it, and sue him for the price and damages; but when he had once declared his choice in any way he could not go back upon it. In case of doubt, this agreement was treated as a resolutive condition.
Where the price was payable by instalments, the right to resile generally arose as soon as one of the instalments was in arrear, so here and D. 4. 4. 38 pr.; but it was quite permissible to make the agreement inoperative till the date of the last instalment had passed without payment. Cp. D. 13. 7. 8, 3, which exemplifies the different ways of conferring on the pledgee the right to sell a pledge given in security of an annual payment, and supplies two forms of such a clause (1) si qua pecunia sua die soluta non erit, the effect of which was to give a power of sale after default of the first payment, and (2) nisi sua quaque die pecunia soluta esset, which suspended the power of sale till the last instalinent was due and unpaid.
This point may be illustrated by the class of questions arising in our Courts upon contracts for the sale of goods to be delivered and paid for by instalments. It is not settled whether default in making delivery of the first or any subsequent instalment goes to the root of the consideration and justifies the buyer in cancelling the contract, apart from any special evidence of the intention of parties ; but the failure of the buyer to pay the first, or any subsequent instalment of the price, is not regarded as enough
ut, si interim emptor fundum coluerit fructusque ex eo perceperit, inempto eo facto restituerentur, et ut, quanti minoris postea alii uenisset, ut id emptor uenditori praestaret : ad diem pecunia non soluta, placet uenditori ex uendito eo nomine actionem esse. nec conturbari debemus, quod inempto fundo facto dicatur
per se to entitle the seller to rescind the contract. Freeth v. Burr (1874) L. R. 9 C. P. 208 was the case of a contract to deliver pig-iron in two parcels, half in two weeks, the remainder in four: payment, net cash fourteen days after delivery of each parcel. Owing to delay of six months in delivering the first parcel, the buyers refused to pay for it, claiming a right to set off the loss that they had sustained through being obliged to procure other iron; but they still urged the delivery of the second parcel. The seller treated the refusal to pay as a breach and an abandonment of the contract, and declined to deliver any more. Held he was wrong and liable in damages for the non-delivery; and observed that 'in cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is, whether the acts or conduct of the one do, or do not, amount to an intimation of an intention to abandon the contract.' Cp. Mersey Steel Co. (1874) 9 App. Ca. 434; S. G. B. § 33; Turnbull (1874) 1 R. 730; Bell, Prin. $ 108.
The lex c. Lad certain penal consequences, for the buyer is (by implication of law, where not by express agreement) bound to forfeit what he has given as earnest, and what he has paid to account of the price, but is allowed to retain, as compensation for his loss, the fruits he has meantime gathered (D. 18. 3. 6; ib. 1, 1; ib. 8).
The seller might even go so far as to stipulate by a special covenant that the vendee should be responsible to him for any loss sustained on a re-sale of the goods, and for the produce or fruits that had accrued from the subject pendente conditione : as in the case here figured, and in D. 18. 3. 4, 3.
The actio venditi was the proper action for enforcing restoration of the subject and its accessions, and all other claims arising under the pact; for the action on a bonae fidei contract extended to all matters embraced in any adjected pact, and was competent even where it had been agreed that the contract should be off in
by the term fixed, the sale shall be held cancelled; and if the purchaser in the interval crops the lands, he shall account for the value upon the rescission of the sale, and shall make up to the vendor any loss he may subsequently sustain by reselling for a less price,—it is settled that, if the price be not paid by the term appointed, the vendor can bring an action on the sale. The statement that an action on sale will lie, although the sale is declared to be off, need not occasion any difficulty ; for in all cases of sale the intention is more important than the language:
a certain event—this was the opinion of Sabinus; but Proculus, considering it absurd that an action intended to secure the execution of a contract should be used to annul it, held that an actio praescriptis verbis was the proper procedure (D, 19. 5. 12). The Sabinian view, followed with some hesitation by Paul (D. 18. 5. 6), and adopted here with more confidence by Pomponius, prevailed in the end. Cp. D. 18. 3. 4 pr.; 19. 1, 11, 3.; ib. 6. The pact (he argues) was intended simply to release the vendor from his contractual engagements on the expiry of a certain period, and to invest him again with the free disposal of his property, but not to have retroactive effect so as to annul all that had gone before, as if the contract had never been made. The continued efficacy of the contract is plain, both from the penal consequences which followed, and from the consideration that, if it had been avoided to all intents, the lex commissoria as an adjected pact would have been equally void.
It is a disputed question whether the seller was entitled to bring a rei vindicatio, i.e. to claim the tbing sold as his, on the ground that the property in it (which passed to the buyer upon delivery where credit was given) had been revested in him as the direct result of his exercising his right to rescind the sale. The inain authorities on the point are the Rescripts in C. iv. 54. 1-4, and they seem to yield a negative answer. Of course where the agreement was to operate as a suspensive condition, the seller as undivested owner could maintain a real action against the person in possession.
The tendency of modern law is more favourable to the transfer of property and the security of commerce; it rejects the idea of any implied condition or hypothec for security of the price after