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actionem ex uendito futuram esse : in emptis enim et uenditis potius id quod actum, quam id quod dictum sit sequendum est, et cum lege id dictum sit, apparet hoc dumtaxat actum esse, ne uenditor emptori pecunia ad diem non soluta obligatus esset, non ut omnis obligatio empti et uenditi utrique solueretur.
2. Condicio, quae initio contractus dicta est, postea alia pactione immutari potest, sicuti etiarn abiri a tota emptione potest, si nondum impleta sunt quae utrimque praestari debuerunt.
7. ULPIANUS libro XXVIII ad Sabinum. Haec uenditio serui 'si rationes domini computasset arbitrio'
actual delivery; and even express conditions, of the nature of the lex commissoria, to enable the seller to rescind a completed sale and reclaim the goods after they have been delivered into the actual or constructive possession of the buyer, in the event of his failure to pay the price by an appointed day, are jealously interpreted. A resolutive condition of this kind is treated in Scots law as a personal obligation only, effectual between the vendor and vendee, but of no avail against third persons, e.g. the creditors of the vendee or bonâ fide purchasers from him; but if the condition as to payment be so conceived as to be truly suspensive of the sale, the property does not pass till the condition is purified, and therefore it cannot be attached by the buyer's creditors (Bell, Com. i. 260). In England, the vendor's sole remedy against the vendee who has got possession of his goods, and wrongfully neglects or refuses to pay for them, is, like that of other creditors, by personal action for the price: he cannot treat the contract as rescinded, because the vendee makes default in paying at the appointed time (Martindale v. Smith (1841) 1 Q. B. 389), a stipulation as to the time of payment not being deemed by English law to be of the essence of the contract (S. G. B. § 11). Similarly, by the civil law, the actio venditi was the only competent process for a vendor who had sold on credit, and given delivery without securing himself by the lex commissoria. C. iv. 30.8; C. iv. 44. 14; Pothier, Vente, $ 475.
But as regards the earlier stages of sale, before the buyer is in actual possession, our law studies the interest of the unpaid seller by giving him certain rights against the goods : (1) if the seller is
now here, notwithstanding the terms used in the contract, it is plain that the parties intended simply that the vendor should not continue under obligation to the vendee in the event of the money not being punctually paid, and not that both sides should be released from every obligation incident to a sale.
2. A term made at the inception of the contract may be varied by a subsequent agreement, just as the sale can be abandoned altogether, so long as the parties have not fulfilled their mutual obligations.
7. ULPIAN. The sale of a slave on these terms, 'if he give in satisfactory
still in possession of the goods, and the buyer, whether solvent or insolvent, makes default in payment of the price, the seller has by English law a 'lien,' by Scots law a'right of retention,' differing in principle but similar in practical effect (see Black (1867) 6 Macp. 136); (2) if the goods have passed out of the hands of the seller into the possession of a neutral carrier or middleman in the course of transit to the buyer, the seller has, by the common law of both countries, the right of 'stoppage in transitu,' i.e. of intercepting the goods, if he can, and resuming possession, provided the buyer is insolvent; and (3) a right of re-sale under certain circumstances. See generally, S. G. B. $$ 40-49, and remarks of Bowen, L. J., on stoppage in transitu, in Kendal (1883) 11 Q. B. Div. at p. 368. It is now admitted that the seller, by merely exercising the right of stoppage, does not rescind the contract of sale, but is still a creditor for the price. Stoppel & Co. v. Stoddart (1850), 13 D. 61 (Scotch), and Kemp v. Falk (1882) 7 App. Ca. 573.
§ 2. Condicio' has not its technical sense here; it means simply any term of a sale. Sale, like all contracts, can be revoked by contrarius consensus or contraria voluntas of the parties re integra, so long as nothing has followed upon the conclusion of the contract. Matters are not entire if, e.g.,
the seller is freed by accidental destruction of the thing sold. C. iv. 45. 2.
L. 7 pr.—The case put is that of the sale of a slave by his owner, subject to the condition “if he renders accounts to my satisfaction, and the question is, what is the import of the con
condicionalis est: condicionales autem uenditiones tunc perficiuntur, cum impleta fuerit condicio. sed utrum haec est uenditionis condicio, si ipse dominus putasset suo arbitrio, an uero si arbitrio uiri boni? nam si arbitrium domini accipiamus, uenditio nulla est, quemadmodum si quis ita uendiderit, si uoluerit, uel stipulanti sic spondeat' si uoluero, decem dabo ': neque enim debet in arbitrium rei conferri, an sit obstrictus. placuit itaque ueteribus magis in uiri boni arbitrium id collatum uideri quam in domini. si igitur rationes potuit accipere nec accepit, uel accepit, fingit autem se non accepisse, impleta condicio emptionis est et ex empto uenditor conueniri potest.
1. Huiusmodi emptio ' quanti tu eum emisti,' quantum pretii in arca habeo,' ualet: nec enim incertum est pretium tam euidenti uenditione: magis enim ignoratur quanti emptus sit, quam in rei ueritate incertum est.
2. Si quis ita emerit : est mihi fundus emptus centum et quanto pluris eum uendidero,' ualet uenditio et statim impletur:
dition ? If it means that the accounts are to be submitted absolutely to the discretionary judgment of the seller, the sale is a nullity; it falls under that class of conditional dispositions where the condition depends on the mere will of the person to be bound (the obligor '), which therefore, as a rule, create no obligation, no 'vinculum juris quo necessitate adstringimur.' D. 44. 7. 8: sub hac condicione 'si uolam' nulla fit obligatio : pro non dicto enim est quod dare nisi uelis cogi non possis : so in D. 45. 1. 17, et saepe, of stipulations: and as the engagements in a contract of sale are reciprocal, neither party is bound, C. iv. 38. 13: In uendentis uel ementis uoluntatem collata condicione comparandi, quia non adstringit necessitate contrahentes, obligatio nulla est : idcirco dominus inuitus ex huiusmodi conuentione ren propriam uel quilibet alius distrahere non compellitur. (Sale on approval,
si res emtori placuerit,' must be treated as an exception from this general principle: Savigny, Syst. iii. § 117. 2). But the condition admits of an interpretation which will support the sale, for Ulpian lays it down in the same book of his Commentary on Sabinus, from which this text is taken) as a general rule of construction, that a condition qualifying a bonae fidei contract whereby
accounts to his master,' is a conditional sale; and such sales are complete when the condition is fulfilled. But does the condition here mean, that the slave's accounts shall be submitted to the judgment of his master, or of a fair-minded person? If we take it as referring to the master's opinion, the sale is void—it is just like selling on condition that one chooses, or like answering the question in a stipulation thus, 'If I please, I will give ten aurei, for it must not be left to the debtor to decide whether he is bound or not. And so the old jurists adopted the view that this condition imported a reference to the judgment of a fair person other than the master. If, therefore, the master might have had accounts stated but declined to take them, or if he has received them but gives out the contrary, the condition is purified, and the action on purchase can be brought against the vendor.
1. A purchase on such terins as 'for what you gave for him,' . for the inoney I have in my coffer,' is good; for the price is not uncertain, where the terms are so plain : the parties, indeed, may be ignorant of the amount of the price, but it is not really indeterminate.
2. If a purchaser makes these terms, 'I buy the lands for 100 aurei and whatever more I shall sell them for,' the sale is valid
any matter is referred to the opinion of the owner or his agent is to be taken as a reference to the judgment of a vir bonus (D. 50. 17. 22, 1). The jurists, applying this principle to the present case, made the condition dependent on a rational, instead of an arbitrary, judgment. The bonus vir is a sort of standard embodiment of honesty and fair dealing, and aptitude for the equitable settlement of disputes, just as the respectable householder (bonus paterfamilias) serves as a criterion of his distinctive qualities, ordinary and reasonable care and prudence.
§ 1. The contract is incomplete if the price is left open; but it is sufficiently fixed, if it is defined by some objective fact, past or present, at the time the contract is made. It is, in fact, certain, and all that remains is to ascertain it. Cp. D. 45. 1. 75.
§ 2. If a part of the price is fixed within the contract, it is enough ; the rest may be left to depend on a future and uncertain
habet enim certum pretium centum, augebitur autem pretium, si pluris emptor fundum uendiderit.
8. POMPONIUS libro ix ad Sabinum. Nec emptio nec uenditio sine re quae ueneat potest intellegi. et tamen fructus et partus futuri recte ementur, ut, cum editus esset partus, iam tunc, cum contractum esset negotium, uenditio facta intellegatur: sed si id egerit uenditor, ne nascatur aut fiant, ex empto agi posse.
event. Cp. D. 19. 1. 13, 24. It may be inferred that a sale would not be complete if the whole price were fixed by reference to a future contingency, e.g. I agree to sell you a house for the same price as may be got for the adjoining one; that is a conditional sale. Cp. Pothier, $ 28.
L, 8. It is essential to the idea of sale that there should be an object (res) to which the contract inay attach. But the law allowed things not yet in existence, things which might never exist to be sold; how is this to be reconciled with the rule that there can be no sale sine re? Two cases of the sale of future and uncertain things must be distinguished: (i.) A sale of what might be expected in the ordinary course of nature to exist, as a future crop or the young of animals, called by the civilians . emptio rei speratae,' was conditional upon the thing coming into existence; if it never existed, there was no claim on either side apart from fault (e.g. interference to prevent the land or the animals yielding their increase, cp. D. 50. 17. 161); if it did, the buyer must pay the price, no matter whether the quality came up to his expectations or not. See pr. supra; 39, § 1 (price in proportion to the quantity of crop); D. 45. 1. 73 (where a stipulation for a future crop, etc., is treated as pura, but not exigible till performance becomes possible). Pomponius seeks to harmonise such a sale with the general rule by the fiction that, as soon as the thing actually exists, the contract draws back to the date of the completed agreement. (ii.) The sale of an expectation dependent on a mere chance was sale pure and simple ('emptio spei' or 'aleae'); here the contract is to stand under all circumstances, and the price