54. LABEO libro II pithanon.

Si seruus quem uendideras iussu tuo aliquid fecit et ex eo crus fregit, ita demum ea res tuo periculo non est, si id imperasti, quod solebat ante uenditionem facere, et si id imperasti, quod etiam non uendito seruo imperaturus eras. PAULUS: minime: nam si periculosam rem ante uenditionem facere solitus est, culpa tua id factum esse uidebitur: puta enim eum fuisse seruum, qui per catadromum descendere aut in cloacam demitti solitus esset. idem iuris erit, si eam rem imperare solitus fueris, quam prudens et diligens pater familias imperaturus ei seruo non fuerit. quid si hoc exceptum fuerit? tamen potest ei seruo nouam rem imperare,1 quam imperaturus non fuisset, si non uenisset: ueluti si ei imperasti, ut ad emptorem iret, qui peregre esset: nam certe ea res tuo periculo esse non debet. itaque tota ea res ad dolum malum dumtaxat et culpam uenditoris dirigenda est.

1. Si dolia octoginta accedere fundo, quae infossa essent, dictum erit, et plura erunt quam ad eum numerum, dabit emptori ex omnibus quae uult, dum integra det: si sola octoginta sunt, qualiacumque emptorem sequentur nec pro non integris quicquam ei uenditor praestabit.

55. POMPONIUS libro x epistularum.

Si seruus, qui emeretur uel promitteretur, in hostium potestate sit, Octauenus magis putabat ualere emptionem et stipulationem, quia inter ementem et uendentem esset commercium: potius

L. 54 pr. As to custodia by the seller pending delivery, see p. 72 ante. The real question always is, as Paul observes, Was the work so dangerous that no man of ordinary prudence would have set his slave to do it?

§ 1. In the first case the seller engages to furnish 80 out of a larger number; it is the sale of indeterminate corpora, and therefore it is an implied condition that the vats actually delivered shall be in good order. In the second case the vats are specific

1 quod si hoc exceptum fuerit, etiam potest ei seruo nouam rem imperare. item potest ei eam rem imperare? (Mom.)

54. LABEO.

If you order a slave whom you have sold [but not delivered] to do something, and he breaks his leg in doing it, the risk falls upon you unless the order be such as he was wont to carry out before the sale, and such as you would have given although you had not sold him. Not at all' says PAUL; for if he was accustomed to do dangerous work before the sale, it will be held that you were in fault: if, for example, he was used to going on the tight-rope, or being let down into sewers. The same will apply if you have been in the habit of imposing tasks which a careful and circumspect master would not have set to that slave. But how if a reservation was made with reference to this? Still the master may order the slave some new duty which he would not have laid on him if he had not sold him, for instance, to go to the purchaser who is abroad: now, that should certainly not be at your peril. Thus the sole criterion in all such cases is whether there has been misconduct or fault on the part of the vendor.

1. If the vendor has promised to give along with the lands 80 vats which are sunk in the ground, and it is found there are more than that number, he may give the vendee any of the lot he pleases, so long as they are sound; but if there are exactly 80, they will pass to the vendee, let their condition be what it may, and the vendor will not be responsible for broken ones.

55. POMPONIUS.

If a slave, who has been taken captive by the enemy, is sold or promised by stipulation, Octavenus would hold the sale or stipulation valid, there being commercium between the buyer and seller; for the difficulty lies not so much in the nature

ally ascertained, and here the seller is not responsible for patent defects which the buyer's inspection should have revealed to him.

L. 55. The circumstances which justify the judge in interposing to grant time or a stay of proceedings till performance

enim difficultatem in praestando eo inesse, quam in natura,1 etiamsi officio iudicis sustinenda esset eius praestatio, donec praestari possit.

becomes possible are not detailed: it may, however, be assumed that it was essential that both parties should have been in excusable ignorance of the obstacle to performance when they 1 quam eum non esse in rerum natura? (Mom.)

as in the performance of the obligation, although the judge ought, in the exercise of his discretion, to grant delay of performance till it becomes possible.

entered into the contract.

The phrase difficultas in praestando shows that the case stated was not regarded as one of absolute

but only of relative impossibility. Cp. D. 45. 1. 73.