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owner, that is buying in good faith ; but if you buy from a pupil without the concurrence of his tutor, or with the concurrence of a pretended tutor whom you know not to be the tutor, you cannot be considered as buying in good faith ; and that is the opinion of Sabinus also.
28. ULPIAN. It is undoubted that one may sell what belongs to another, for there is here a complete contract of sale; only the purchaser may be evicted.
possession according to the contract, or to pay damages for his failure. Cp. Pothier, $$ 7,325. The purchaser, on the other hand, was not at liberty to refuse to accept delivery or to pay the price on the ground that he could show that the title offered was bad; he had no claim so long as he was not dispossessed by the sentence of a competent court. If the buyer believed that the seller had power to alienate, he was in the position of a bonâ fide possessor, and his possession pro emptore when continued for the prescriptive period made him owner in the fullest sense, whereupon the original owner's right was extinguished, and he had only an action against the seller for damages. This idea was consistently applied ; thus, if the thing perished accidentally before any question of eviction was mooted, the buyer was bound to pay the price, the risk having passed just as if the seller had been owner (D. 21. 2. 21 pr.). The bona fides of the vendor was, of course, presupposed; for, if he knew he was not owner and sold to one who was ignorant of the fact, so as intentionally to expose the latter to the risk of eviction, he was held to have acted fraudulently, and the buyer could maintain an adapted action on the contract without waiting for actual eviction (D. 19. 1. 30, 1). It was theft to sell and deliver a corporeal moveable, knowing it to belong to another. Inst. ii. 6. 3.
A modern code would state the reverse of this proposition as the general rule of law, and would explain the peculiar cases in which the sale of a thing which does not belong to the seller is valid as exceptions from the rule. Lord Blackburn observed in City Bank v. Barrow (1880) 5 App. Ca., at p. 677: The rule not merely of English common law, but I take it of Roman civil law, and I apprehend of all the old laws of Europe, by which I mean the
29. ULPIANUS libro XLIII ad Sabinuni. Quotiens seruus uenit, non cum peculio distrahitur: et ideo siue non sit exceptum, siue exceptum sit, ne cum peculio ueneat, laws existing before the Codle Napoléon, that no man could confer a greater title than he himself had, has been found in modern practice to be inconvenient to its full extent in commercial transactions, especially since the practice of advancing money upon the security of goods and merchandise came to be so important as it is; and I quite agree that there have therefore been modifications of that principle introduced into the law of this country, and I dare say into the laws of other countries.' The following passage, approved as a statement of English law by the House of Lords in Colonial Bank v. Whinney (1886) 11 App. Ca., at p. 435, indicates the exceptional cases where there may be a good sale by a person not the owner : 'At common law, a person in possession of goods could not confer on another, either by sale or pledge, any better title to the goods than he had himself. To this general rule there was an exception of sales in market overt, and an apparent exception where the person in possession had a title defeasible on account of fraud. But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shown that the seller or pledger had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to sell or pledge, he was at common law precluded, as against those who were induced bona fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited.' See further, S. G. B., $$ 24-28; Story, Sale, $ 188 sq.
In Scotland there is no privilege in favour of a bona fide purchaser in public market; but otherwise the law is similar to that of England. Many cases turn on the principle of 'reputed ownership,' the legal presumption that the possessor of moveables is the owner; for example, when goods are sold and left in the vendor's possession without any substantial change of his title, and dealt with by him as if they were his own in such a way as
The sale of a slave does not include his peculium, and so it is not regarded as an accessory of the sale, whether specially reserved to accredit him, the vendee cannot have any claim to obtain delivery in a question with the onerous creditors of the vendor. Again, by the Factors Act (1890), which reproduces the common law of Scotland, a mercantile agent, who is with consent of the owner in possession of goods or of the documents of title to goods (such as a bill of lading or delivery order), may effectually sell the goods to a bona fide purchaser without notice of his lack of authority.
It was at one time held (Bryan v. Lewis (1826) Ry. & Moor. 386), apparently on grounds of public policy, that an executory contract for the sale of goods not yet belonging to the vendor, but which he intends to purchase in the market against the time of delivery, is not a valid contract, but a mere wager on the price of the commodity. But this case was expressly overruled in Hibblethwaite v. MMorine (1839) 5 M. & W. 462, where it was observed that such a doctrine had no principle in its favour, it being immaterial, in the case of a contract which may be performed by the delivery of any goods of the kind bargained for, whether the vendor has the goods in his possession at the time of the contract or not, provided he has them ready for delivery at the time when the contract is to be fulfilled ; moreover, it would put an end to half the contracts made in the course of trade, such as those for army and navy supplies. But if contracts for the sale of shares not belonging to the vendor are not really meant to be executed, but are merely devices to cover speculations in the rise or fall of prices, they are truly wagers and are void under the Statute against gaming (8 & 9 Vict. c. 109).
L. 29.—This rule, that when a slave was sold his peculium was not included as a pertinent (cp. D. 21. 2. 3), and the provision of the edict of the aediles that the trappings (ornamenta) with which an animal was decked at the time of sale must be handed over to the buyer (D. 21. 1. 38 pr.), are almost the only decisions in the Digest referring to accessories in the sale of moveable property. It was extremely common to bargain that the peculium should go to the buyer; such a term of the sale was generally expressed thus—'accessurum dico (D. 21. 1. 44 pr.).
cum peculio distractus uidetur. unde si qua res fuerit peculiaris a seruo subrepta, condici potest uidelicet quasi furtiua : hoc ita si res ad emptorem peruenit.
30. ULPIANUS libro XXXII ad edictum. Sed ad exhibendum agi posse nihilo minus et ex uendito puto.
31. POMPONIUS libro XXII ad Sabinum. Sed et si quid postea accessit peculio, reddendum est uenditori, ueluti partus et quod ex operis uicarii perceptum est.
32. ULPIANUS libro XLIV ad Sabinum. Qui tabernas argentarias uel ceteras quae in solo publico sunt uendit, non solum, sed ius uendit, cum istae tabernae publicae sunt, quarum usus ad priuatos pertinet.
33. POMPONIUS libro XXXIII ad Sabinum. Cum in lege uenditionis ita sit scriptum : 'flumina stillicidia uti nunc sunt, ut ita sint,' nec additur, quae flumina uel stillicidia, primum spectari oportet, quid acti sit: si non id appareat, tunc id accipitur quod uenditori nocet : ambigua enim oratio est.
L. 31.—A servus ordinarius might employ his peculium in buying slaves for himself, who were called servi vicarii. The latter belonged de facto to the servus ordinarius, though in strict law they formed part of his peculium, and therefore belonged to his owner.
Cp. Inst. iv. 7. 4.
L. 32.--The idea that A could have a real right, capable of alienation, in respect of buildings on B's solum, was foreign to the strict civil law (the maxim of which was semper superficies solo cedit), but it gradually won recognition by the aid of the praetor. For some time the notion prevailed that there was a peculiar kind of lease or sale of the ground in such a case (see tit. de superficibus, D. 43. 18); but Ulpian reached the true conception —that the subject of the sale is not the ground, but the right to use the surface. In the case here contemplated the solum is public property, and could not be sold on that account : what is sold is the right to use the solum, that right having vested in a
or not. Hence if the slave purloins any part of it, a condictio is maintainable just as for anything stolen, that is, supposing it has come into the buyer's hands.
30. ULPIAN. In my opinion an action ad exhibendum and an action on the sale are equally competent.
31. POMPONIUS. Moreover any subsequent addition to the peculium must be restored to the vendor, e.g. any young that may be born, or any profits made out of the labour of a slave owned by the slave who was sold.
32. ULPIAN. The seller of a banker's or other booth erected on public ground does not sell the solum but only a right in it, for these booths are public property though the use of them belongs to private persons.
33. POMPONIUS. When the articles of sale contain a clause that 'the flow of the rain-water and the eaves-drop shall remain as at present,' without giving any further specification, the first thing to look to is what was the arrangement actually meant; if that is not clear, the construction which is prejudicial to the seller is to be adopted, because there is an ambiguity in the terms used. private person.
So if a person drove in piles in the sea-shore and built on it, he acquired a real right in the structure, so long as it stood, though not in the soil. Inst. ii. 1. 5.
The bankers (argentarii) were under the supervision of the praefectus urbi, and carried on their business in booths round the forum; hence foro cedere' is to become bankrupt. The booths were public property, built by the censors, who sold the use of them to the bankers. Livy, xxxix. 44; xl. 51; Digest, 2. 13. 4-13.
L. 33.—The rain-water that drops from the roof of a house was called stillicidium; if collected and passed on by a rone or