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25. ULPIANUS libro xxxiv ad Sabinum. Si ita distrahatur illa aut illa res,' utram eliget uenditor, haec erit empta.

1. Qui uendidit necesse non habet fundum emptoris facere, ut cogitur fundum stipulanti spopondit.

subject (or the major portion of it) is extra commercium, in which case the clause is superfluous, for the sale is void on the general ground of impossibility of performance. Ulpian plainly holds a contract to sell what is wholly or mainly withdrawn from commerce to be a nullity in all cases, even where the buyer is ignorant of the true nature of the subject-matter; that is the case contemplated in L. 22, otherwise there could be no question of suing for damages, and, moreover, the condictio indebiti for return of the price (L. 23) would be inadmissible, because it presupposes the buyer's ignorance of the circumstance which renders the contract void. Paul and Modestine are of the same opinion, and probably the compilers of the Digest meant to adopt this doctrine, but they inadvertently admitted an excerpt from the earlier jurist Pomponius, to the effect that the sale of a res extra commercium, like that of a free man, is valid in the sense that a bona fide purchaser may sue the vendor for double the price in lieu of the prestation which is impossible (L. 4 supra).

Observe that, though religious ground was extra commercium, there might be a special property in it, viz. the exclusive right to use it as a burial-place. Where such a right was attached to the ownership of lands, it was transmissible to purchasers as an accessory of the 'profane' lands, though incapable of sale by itself. See Ersk. ii. 1. 8; Pothier, Vente, $ 10.

L. 25 pr.–For the effects of an alternative sale, see L. 34. 6 infra.

§ 1. The obligation on the vendor was to hand over and warrant to the buyer the lawful and undisturbed possession of subject (praestare emptori rem habere licere), not to make him owner (dare): so long as the buyer was enabled by delivery to enter on the full and uncontested possession (vacua possessio, D. :19. 1. 2, 1), and to enjoy it as matter of fact, he could not complain of any defect in the legal title, uenditori sufficit ob euictionem

25. ULPIAN. If there be a sale of this or that thing,' the seller is entitled to choose which shall be held as sold.

1. The seller of land is not obliged to make it the property of the purchaser, as one who promises it by a stipulation is bound to do.

se obligare, possessionem tradere et purgari dolo malo : itaque, si euicta res non sit, nihil debet (D. 19. 4. 1). Cp. D. 50. 16.188 pr.: habere duobus modis dicitur, altero, iure dominii, altero obtinere sine interpellatione id quod quis emerit. The reason is possibly a historical one, reaching back to the time when there was only one kind of property at Rome, dominium ex iure Quiritium. Sale was a product of the ius gentium, and was therefore accommodated to the legal position of aliens, who would have been incapacitated from buying a res mancipi from a citizen, and from selling him anything whatever, if the undertaking required of the seller had been dare in the technical sense. The seller was merely bound to transfer all his right and title, and if that was defective the buyer was left to complete his title by usucapion : in the meantime he had an ample guarantee in the stipulation by which the seller warranted him against eviction at the suit of the true owner, so that he was quite safe except the seller became insolvent. Cp. D. 19. 1. 11, 2; ib. 30, 1: Pothier, $$ 1, 48, 82. See L. 41 pr. infra for a purchase under the special condition that the seller shall purge the subject of incumbrances by a certain date. Celsus holds that if there be an express engagement to transfer the property (dedi tibi pecuniam ut mihi Stichum dares, D. 12. 4. 16), the contract is not a sale at all, but an innominate contract do ut des; hence the risk does not pass, and if there is default in passing the property in Stichus, the money is recoverable at once by a condictio causa data causa non secuta. In the strict verbal contract of stipulation, on the other hand, the obligation dare was appropriate: haec stipulatio fundum Tusculanum dari ?' ostendit se certi esse, continetque ut dominium omnimodo efficiatur stipulatoris quoquo modo (D. 45. 1. 75, 10).

This leading principle of the Roman law as to the effect of sale in passing title resulted in the rule stated in L. 28, that the sale of a res aliena was permissible. This doctrine was received

26. POMPONIUS libro xvII ad Sabinum. Si sciens emam ab eo cui bonis interdictum sit uel cui tempus ad deliberandum de hereditate ita datum sit, ut ei deminuendi potestas non sit, dominus non ero : dissimiliter atque si a debitore sciens creditorem fraudari emero.

27. PAULUS libro VIII ad Sabinum.

Qui a quolibet rem emit, quam putat ipsius esse, bona fide

into the early law of the continent through the influence of such jurists as Dumoulin and Pothier; but the principle and the rule would both seem to have been swept away by art. 1599 of the French Code, La vente de la chose d'autrui est nulle.' This implies a principle directly the reverse of the civil law, viz. that the nature and purpose of sale is to transfer the property in a thing from the seller to the buyer, and the modern definitions of sale are generally framed in accordance with this idea. Cp. S. G. B., § 1. Curiously enough, however, the definitions in the French Code follow so closely the language of the Roman law as to throw some doubt on the intention of its authors to abandon the position that a sale merely transfers the right of possession; but it is now quite settled, both from its general scope and on authority, that the code was intended to give effect to the modern view which attaches to sale the obligation to transfer the actual ownership. Troplong, Vente, Nos. 4, 230.

Lord Stair adopted the civil law, as was customary in his day. • Delivery of the goods or things bought, with the obligation of warrandice in case of eviction, which is implied in sale, though not expressed, is the implement of it on the seller's part; and even though the buyer know and make it appear that it were not the seller's, yet he could demand no more but delivery and warrandice' (Inst. i. 14. 1). It rather appears as if this were still the law of Scotland as regards corporeal moveables (cp. Swan v. Martin (1865) 3 Macp. 851); but it has long been fixed that, in sales of heritage, the property must be passed, and a good title given, before the vendee can be called upon to pay the price, unless he has agreed to waive his right and to take the title of the vendor as it stands.

In England the buyer of goods has a double protection : (1) it

26. POMPONIUS.

If I buy from a person whom I know to be interdicted from managing his estate, or to have been granted time to deliberate about taking up an inheritance without any power of alienation, I do not acquire ownership thereby; but it is different if I buy from a debtor with the knowledge that he is defrauding his creditor.

27. PAUL. If you buy a thing from a person whom you believe to be the has been settled law since Eichholz v. Bannister (1864) 34 L. J. C. P. 105 that, in a contract of sale, there is an implied condition on the part of the seller that he has a right to sell the goods, unless the circumstances are such as to show a different intention. This is usually called ' implied warranty of title,' and rests really on the principle of representation or estoppel. (2) There is an implied covenant for quiet possession, which is analogous to the implied guarantee against eviction of the Roman law. See S. G. B., § 14.

L. 26.—The result in the two cases first mentioned would not have been different although the purchaser had been unaware of the incapacity of the seller ; the sciens is inserted to complete the comparison with the case of a purchaser who knows that the seller is making an alienation in fraud of creditors, and is therefore in mala fide (Pothier). Cp. D. 42. tit 8, Quae in fraudem creditorum facta sunt ut restituantur. Though the owner alienated in fraud of creditors, yet the delivery with his consent carried the property; but we must hold that the transaction was reducible by the actio Pauliana, for it lay even against a purchaser for value if he was cognisant of the insolvency of the seller.

In Scotland the effect of interdiction is not to annul acts or deeds, but only to reduce them so far as prejudicial; and the incapacity of persons interdicted is confined to their heritable estate. Bell, Prin. § 2123 sq.

L. 27.-Bona fides in a purchaser, which was one of the conditions requisite for acquisition by usucapio, is defined in D. 50. 16. 109: 'Bonae fidei emptor' esse uidetur, qui ignorauit eam rem

emit: at qui sine tutoris auctoritate a pupillo emit, uel falso tutore auctore, quem scit tutorem non esse, non uidetur bona fide emere, ut et Sabinus scripsit.

28. ULPIANUS libro XLI ad Sabinum. Rem alienam distrahere quem posse nulla dubitatio est : nam emptio est et uenditio : sed res emptori auferri potest. alienam esse, aut putauit eum qui uendidit ius wendendi habere, puta procuratorem aut tutorem esse. It implied honest belief in the goodness of one's title, and excusable ignorance of any flaw in it.

According to the Bills of Exchange Act (1882) $ 90,'a thing is deemed to be done “in good faith,” when it is in fact done honestly, whether it be done negligently or not.' In Jones v. Gordon (1877) 2 App. Ca. 616, a bill had been taken at considerable undervalue; held, that, though that fact was not of itself sufficient to affect the title of the holder, it was an important element in considering whether the man who gave the undervalue was acting bona fide, in ignorance and error, or was assisting in committing a fraud, and avoided making enquiries because they might be injurious to him. The House of Lords, in Derry v. Peek (1889) 14 App. Ca. 337, has negatived the idea of * legal fraud' as a category intermediate between bonâ fides on the one hand and mala fides (fraud) on the other. · Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false. A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud, but does not necessarily amount to fraud.'

L. 28.—The unqualified assertion that one can validly sell what belongs to another is rather surprising to a modern lawyer. It is, however, the proper corollary of the principle that sale is not a transfer of property but of guaranteed possession (L. 25, and note). As the vendor was not bound ad dandum but only ad tradendum, the obligation could not be said to be absolutely impossible, though it might be so relatively, i.e. for that particular vendor; hence the law held there was an effectual contract, binding the seller to acquire the property and secure the buyer in

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