34. PAULUS libro XXXIII ad edictum.

Si in emptione fundi dictum sit accedere Stichum seruum neque intellegatur, quis ex pluribus accesserit, cum de alio emptor, de alio uenditor senserit, nihilo minus fundi uenditionem ualere constat sed Labeo ait eum Stichum deberi quem uenditor intellexerit. nec refert, quanti sit accessio, siue plus in ea sit quam in ipsa re cui accedat an minus: plerasque enim res aliquando propter accessiones emimus, sicuti cum domus propter marmora et statuas et tabulas pictas ematur.

1. Omnium rerum quas quis habere uel possidere uel persequi potest uenditio recte fit: quas uero natura uel gentium ius uel mores ciuitatis commercio exuerunt, earum nulla uenditio est.

2. Liberum hominem scientes emere non possumus. sed nec talis emptio aut stipulatio admittenda est: cum seruus erit,'

spout, it was called flumen. For the nature of these urban servitudes regarding water from the roof, see D. 8. 2. 20 and 21. In D. 8. 2. 17, 3 the same clause occurs as here, and it is explained as amounting to an undertaking by the seller that the adjoining tenement is bound to receive the water from the house for sale, and that the latter is burdened with no servitude of this kind; the result being that the owner of the servient land is prohibited from building anything that might interfere with the flow of the rain-water off the purchaser's house.

A proprietor who had no servitude of eavesdrop was required by Roman law to build two and a half feet within his own march. In many Scotch burghs custom prescribes a free margin of nine inches; failing custom, the Dean of Guild has power to fix the distance. Ersk. Inst. ii. 9. 9.

L. 34 pr.-This text establishes that mistake touching an accessory, if there be agreement as to the principal subject of the sale, does not amount to essential error. Cujas thinks that emptor should be read in place of venditor, both on account of the context (plerasque enim res, etc.), and because, as matter of construction, the presumption is against the seller where there is any ambiguity but the conjecture is unnecessary, for the decision may quite well be put on the ground that the seller is debtor for

34. PAUL.

It was a condition in a sale of lands that the slave Stichus was to pass with the lands, but it is not clear which of several slaves (of that name) was meant, the buyer and the seller having had different individuals in view; it is settled that the sale of the lands is good notwithstanding: and Labeo holds that the Stichus whom the seller meant is due. It is immaterial what the value of the accessory is, whether greater or less than that of the principal thing: for it is true of most things that they are occasionally bought for the sake of their accessories, a house for example on account of its marble ornaments, statues, and frescoes.

1. Whatever can be held as private property, or possessed, or sued for may lawfully be sold; but things which are withdrawn from commerce, by the law of nature or of nations or by public policy, are incapable of sale.

2. A free man cannot be purchased by one who knows his condition: neither is it permissible to purchase or stipulate for him 'in the event of his becoming a slave,' although a future

the delivery of an indeterminate subject (a genus), and therefore the choice of the individual rests with him.

§ 1. This is the most general definition given of the subjectmatter of the contract, and it is adopted by the Scotch institutional writers, as indeed is the case with most of the general statements of law in this title. Habere has here its narrower sense implying ownership; the wider meaning which it often has is here conveyed by possidere; and persequi covers incorporeals, such as a claim of debt (nomen). Examples of sales held to be void on grounds of public policy (mores civitatis) will be found in L. 46 (no person holding an office of trust to buy goods under his care), and L. 62 (no civil servant to buy real property in his province): for statement of the principle see Digest, 2. 14. 27, 4; 28. 7. 15. Similar principles are recognised in all civilised states; thus contracts contrary to public policy or morality are void at common law in this country, and are often struck at by special statutes besides, e.g. sales of offices of trust or of the salaries attached to them.

§ 2. After stating generally in § 1 that the sale of things

quamuis dixerimus futuras res emi posse: nec enim fas est eiusmodi casus exspectare.

3. Item si et emptor et uenditor scit furtiuum esse quod uenit, a neutra parte obligatio contrahitur: si emptor solus scit, non obligabitur uenditor nec tamen ex uendito quicquam consequitur, nisi ultro quod conuenerit praestet: quod si uenditor scit, emptor ignorauit, utrinque obligatio contrahitur, et ita Pomponius quoque scribit.

which are not subjects of commerce is null, Paul here declares the sale of a free man void if the buyer knew his condition, implying apparently that the sale was valid if the buyer did not know, for he passes on in § 3 with the word 'item' to deal with the sale of a res furtiva, which was not void unless the buyer knew the thing to be stolen. Cp. L. 4 supra. For the ethical grounds on which the sale of a free man under the condition cum servus esse coeperit was held to be inadmissible, cp. D. 45. 1. 83, 5, casum aduersamque fortunam spectari hominis liberi neque ciuile neque naturale est.

§ 3. There are four possible cases of the sale of stolen property (1) Both parties know of the vitium: the sale is null, and neither party can demand performance of the contract because of his bad faith-dolus dolo compensatur. (2) Only the buyer knows the seller is free from his obligation, but he must take the necessary steps to perform it if he prefers to maintain an action for the price; the buyer cannot sue, being in bad faith. (3) Only the seller knows: the innocent buyer can bring the actio empti, and so compel the seller either to deliver or pay damages for his failure; the buyer is bound simply to pay the price. (4) Neither party knows: the sale is effectual.

The words quod convenerit (case 2) mean just rem venditam; the seller can sue for the price only on condition that he implements his part of the bargain by making arrangements with the owner to purge the vitium and deliver the article to the buyer. This case is an example of what the Germans call' das kinkende geschäft' (negotium claudicans), i.e. a bilateral agreement, binding on the one party, but not on the other, owing to incapacity to contract, or on account of some external defect (ep. D. 19. 1. 13, 29)-if a pupil sells without the active con

thing may, as already stated, be bought, because it is an improper thing to anticipate such a catastrophe.

3. Again, if both buyer and seller know that the thing for sale has been stolen, neither of them undertakes any obligation: if only the buyer knows, the seller will not be bound, and on the other hand he can have no claim arising out of the sale unless he voluntarily performs his part of the bargain; whereas, if the seller knows and the buyer does not, both parties are bound. Pomponius concurs in this view.

currence of his tutor, the purchaser is bound but the pupil is not. It is in the option of the pupil to hold to or reject the bargain, irrespective of the will of the other party; but he cannot maintain the transaction without recognising and validating the obligation undertaken by himself—the contract is valid as a whole or not at all. A negotium of this kind is 'relatively void' (Savigny, Syst. iv. 541); its existence depends on the decision of the party interested, and the other party is bound to await that decision. For another view, see note to L. 13, 29 cit.

These rules are based on plain grounds of morality and public policy. Thus if the seller alone is aware of the taint, the contract is valid, and the innocent purchaser is protected by his claim for indemnity, which is in this case independent of eviction; but if both are in bad faith, the contract is completely null, because the law regards both the seller, who alienates a moveable which he knows to be another's without the consent of the owner, and the buyer, who accepts the property knowing it to be stolen, as guilty of or accessory to an act of theft (C. vi. 2. 6; ib. 12; Gaius ii. 50).

No contract between third parties regarding a res furtiva could prejudice the rights of the owner. In addition to the actions he could bring for recovery of the thing stolen, or its value, or a penalty for the theft, he was protected against the risk of a bond fide acquirer from the thief completing a title by usucapion unknown to him. By a rule as old as the Twelve Tables ‘rei furtivae aeterna auctoritas esto,' and by the lex Atinia some three centuries later, stolen property was excepted from the law of prescription. The vitium furti which tainted the property could only be purged by its return into the hands of the owner,

4. Rei suae emptio tunc ualet, cum ab initio id agatur, ut possessionem emat, quam forte uenditor habuit, et in iudicio possessionis potior esset.

or at least by his coming to know where it was, so that he could bring his real action for recovery. See generally, Inst. ii. tit. 6; Pothier, Vente, § 269 sq.

In England the rules of market overt (that is open), which have grown up by ancient custom in the supposed interest of commerce, give a protection to the bona fide purchaser in a question with the true owner, which he did not enjoy by the civil law. The general rule of law is, that all sales, and contracts of anything vendible in fairs or markets overt, shall not only be good between the parties, but also be binding on all those that have any right or property therein' (2 Blackstone, Com. 449; cp. S. G. B., § 24). In the country, the only market overt is that which is held in the market-place set apart by custom for the sale of particular goods, and on the special days fixed for particular towns by charter or prescription; but in the city of London, every shop in which goods are publicly exposed for sale is market overt for such things as the owner professes to trade in,' and that on every day except Sunday. The recent case as to stolen jewels sold to City jewellers (Hargreave v. Spink, Q. B. Div., Nov. 2, 1891) decides that a show-room above a shop is not market overt, but leaves the question open whether sales to the shopkeeper, or only sales by him, of such goods as he deals in, are privileged. But though the property in stolen goods, when sold in market overt, passes to the buyer, yet it revests in the person who was the owner when the offender is prosecuted to conviction (24 & 25 Vict. c. 96, a statutory rule dating back to Henry VIII.). It should be observed that there are other situations in which the privileges attached to a sale in open market make the buyer secure in his purchase: the sale is good, for instance, although the seller should have received the goods on loan or deposit, or have previously sold them to another, retaining the possession.

The English rules as to market overt have no place in the law of Scotland or America. Scots law, following closely the civil law, regards stolen property as affected with an inherent vice (vitium reale, or labes realis), which is not purged to any extent