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Sed si communis ea res emptori cum alio sit, dici debet scisso pretio pro portione pro parte emptionem ualere, pro parte non valere.
1. Si seruus domini iussu in demonstrandis finibus agri uenditi uel errore uel dolo plus demonstrauerit, id tamen demonstratum accipi oportet quod dominus senserit : et idem Alfenus scripsit de uacua possessione per seruum tradita.
19. POMPONIUS libro xxxI ad Quintum Mucium. Quod uendidi non aliter fit accipientis, quam si aut pretiuni
event, was quite permissible, for the contract was legally possible, and would be capable of execution if and when the event contemplated should occur (L. 61). Cp. Pothier, Vente, $$ 8, 9.
A stipulation for a res sua made under a mistake was also void naturali ratione,' like one for a non-existent object or a res extra commercium (D. 44. 7. 1, 10).
Though usufruct included very extensive rights over the subject, amounting to what we call the beneficial use and enjoyment, it was in law only a personal servitude, a jus in re aliena : it was quite competent, therefore, for the usufructuary to acquire the fee (nuda proprietas), whereupon the servitude and the bare property were consolidated in the full dominium. If he bought in ignorance of his right of usufruct, the sale was valid, but the pricu would be abated by the judge making an allowance for the value of the usufruct (L. 17; cp. Inst. ii. 20. 9).
If the subject sold already belonged in part to the purchaser, the sale was good for the part which did not belong to him, and a deduction was made from the price corresponding to the value of the part belonging to him (L. 18 pr.).
The following were substantially cases of parties purchasing their own property, not knowing it was theirs; and the ground of judgment seems to have been that they had contracted under an implied condition that the subject-matter was in existence, which totally failed. In Cochrane v. Willis (1865) 1 Ch. App. 58 a reversioner agreed with the assignee in bankruptcy of the tenant for life for the sale of the timber on the estate, and it turned out that, unknown to both, the tenant for life was dead
18. POMPONIUS. If the purchaser and another are co-owners of the subject bought, the price should be apportioned according to their shares, and the purchase declared valid for the one part and void for the other.
1. Although a slave, in pointing out by his master's orders the boundaries of a field he had sold, has, whether by mistake or fraudulently, pointed out more than it contains, nevertheless it must not be taken that any more was pointed out than his master meant to be shown: and the same rule is laid down by Alfenus about the delivery of free possession by the hands of a slave.
19. POMPONIUS. The property in a thing sold does not pass to the vendee till at the date of the agreement. Held, that the agreement was founded on a mistake, and was without consideration, and the Court refused to enforce it. Cp. Jones v. Clifford (1876) 3 Ch. Div. 779, and Bingham v. Bingham, there cited and explained; Scrabster Harbour Irs. v. Sinclair (1864) 2 Macp. 884.
The examples of mistake by a slave, given in L. 18, § 1, may be compared with the case of a servant who, misapprehending his orders, gives delivery of goods without receiving the price,the agreement being for cash on delivery: the property does not pass, and the seller can sue for restoration of the goods. Bell, Com. i. 258; Benj. p. 287.
L. 19.—The meaning of this text is that sale and delivery did not pass the property in the thing sold unless (1) the price had been paid, or (2) the seller had received personal or real security by guarantee or pledge, L. 53 infra, or (3) had relied on the buyer's credit : the satisfaction of the seller in one of these three ways was treated as an implied condition precedent to the transference of his ownership in spite of the delivery of possession. So long as the seller remained in possession of the thing sold, he had a right of retention over it in security of the unpaid price (quasi pignus retinere potest, D. 19. 1. 13, 8); but after he had parted with the possession, the above rule was applied in his favour, giving him a sort of privilege over the property not only
nobis solutum sit aut satis eo nomine factum uel etiam fidem habuerimus emptori sine ulla satisfactione.
against the vendee but against his creditors and purchasers from him as well. The rule held equally of moveable and immoveable property. [But it is only as regards immoveables that there is any survival of it, for the English equity doctrine of the vendor's lien on land sold for the purchase-money has been ascribed to this source (per Lord Eldon, Mackreth v. Symmons, 15 Ves. 344).] It was in effect a rule of construction : the intention to aliene was to be inferred only from one of the above facts, and not from the mere agreement to sell. If the seller handed over the subject without giving credit and without receiving the price or security, it was presumed that he meant not to divest himself but to retain the dominium, so as to be in a position, if necessary, to make good his claim by a real action (vindicatio) against the buyer or other person into whose hands the subject had passed. Delivery following upon sale, donation, or other justa causa dominii transferendi, regularly operated a transfer of ownership (D. 41. 1. 31 pr.); but the legal presumption just mentioned barred or at least suspended the normal effect of a traditio in virtue of sale. We may say that, in sales without credit, it was only sale plus payment or security that formed a sufficient causa.
Sometimes an express agreement was made reserving the property until the price was paid, called pactum reservati dominii (D. 41. 2. 38, 1; 43. 26. 20). This presupposes an intention not to exact instant payment, and therefore implies a tacit credit. It operated generally as a suspensive condition. See further, Vangerow, $ 311, A. 2.
The practical effect of the rule is exemplified in D. 14. 4. 5, 18: its rationale may be inferred from an important passage in the Institutes (ii. 1. 41), where it is said to have been laid down in the Twelve Tables. Critics are agreed that this statement cannot be taken as literally true. See Ihering, Geist, ii. 568 ; Exner, Tradition, p.338. Voigt (Die xii. Tafeln, ii. p. 142) suggests that Tribonian derived his information not from the Tables directly, but through a jurist of the middle Empire, and that the Tables contained some provision of the kind applicable to sales by mancipation (res venditae et mancipatae, etc.), which was in course of time extended to ordinary contracts of sale by the
the vendor has been paid or has got security for the price, or else has given credit without security.
interpretatio of the jurists, whereupon the word traditae was substituted for mancipatoe in the wording of the rule.
Probably pignus and expromissor are also accretions on the original rule, for they presuppose a legally enforceable obligation, and neither mancipation nor such informal sale as was in daily use at the time of the Twelve Tables created such a bond; besides, the only security we know of as existing at that date is radimonium. When coined inoney came into use, the necessity for some statutory protection for the vendor would begin to be felt, in order to prevent the Quiritary ownership passing by mancipation (which soon became a mere form of conveyance), while the seller might not have received the price at the time of the actual sale : in which case, as he had no remedy by personal action against the purchaser to enforce payment, the law declared him to be undivested owner notwithstanding the mancipation. This principle once established was maintained during all the stages in the history of sale; but, as it would in its strict form have proved a serious hindrance to commerce, the classical jurists may have sought to render it more elastic by adding a clause (which appears in the Institutes as a separate statement)—that the giving of credit was to be held equivalent to payment of the price as regards the effect upon the property.
This important principle of the civil law found at one time considerable acceptance in many Continental states : thus Pothier (Vente, $ 322) lays it down that delivery on the title of sale is subject to an implied condition which suspends the transference of the property till the price is paid or secured, unless credit is given expressly, or by implication as by fixing a term of payment or by allowing a considerable time to elapse without a demand —otherwise credit is not to be presumed from delivery alone (§ 324) In fact, a kind of secondary contract' had to be entered into at the time of delivery, by which the seller agreed to give credit and to renounce bis hypothec. The result of this was, that not only fraud, going to the root of the original contract of sale, but also a slighter degree of fraud, practised at the time of delivery to induce credit, was a sufficient ground for restitution.
1 Cp. Muirhead, Roman Law,
20. POMPONIUS libro IX ad Sabinum. Sabinus respondit, si quam rem nobis fieri uelimus etiam, ueluti statuam uel uas aliquod seu uestem, ut nihil aliud quam
But in Great Britain this principle has not been followed in the mercantile contract of sale. As indicated in the note to L. 6 supra, the unpaid seller has certain rights against the goods, so long as they are in his possession or in course of transit to the buyer; but as soon as they come into the possession of the buyer by the vendor's authority, the transference is completed and the price is matter of personal credit merely. Sale being perfected, and the thing delivered, the property therefore becomes the buyer's, if it was the seller's; and there is no dependence of it till the price be paid or secured, as was in the civil law; neither hypothecation of it for the price' (Stair, i. 14. 2). Like many of the legal hypothecs known to the civil law, it has been swept away
that commerce might be more sure, and everyone may more easily know his condition with whom he contracts.' conditions annexed to the transference will receive effect: thus, in Richmond v. Railton (1854) 16 D. 402, Lord Justice-Clerk Hope observed : “ The right of property passed by the voluntary act of the sellers in giving delivery without any arrangement or stipulation as to the price. If parties furnishing goods meant to enforce the condition of a ready-money sale, and prevent the legal results of delivery voluntarily made according to the law of Scotland, they ought as they effectually can to protect themselves by insisting on payment or proper arrangements for payment before they give delivery.'
To complete this review of the seller's securities, it is necessary to mention the buyer's right of rejection on insolvency, and the seller's claim for restitution on the ground of fraud. (1) A purchaser, knowing his insolvency but not yet a bankrupt, may and ought to reject goods proferred for delivery at any time before they have come into his actual possession, the effect being to rescind the contract and restore the property, if the seller does not dissent. Booker & Co. v. Milne (1870) 9 Macp. 314; Bell, Prin. $ 1310. In England this is treated as part of the doctrine of stoppage in transitu, and it is held that after bankruptcy the buyer cannot reject (Benj. 493-5, 881).
(2) Fraud in procuring delivery, in particular fraudulent con