4. You can validly purchase a thing that is already yours, provided your intention has all along been to acquire the possession of it which happens to be with the vendor, and so to improve your position in a possessory action.

by a sale in open market, and cannot be removed except by the return of the property to its original owner. The owner can follow it into the hands of a purchaser in spite of the most perfect good faith. There is an exception as regards bills of exchange, and bills of lading acquired bona fide in the course of trade. Bell, Prin. § 527 sq. In Todd v. Armour (1882) 9 R. 901, where the Scotch Court upheld the sale in open market in Ireland of a stolen horse, a well-grounded preference was expressed for the Scotch system. The principle applies not only where the goods sold have been stolen from the owner, where the seller therefore had no title at all, but also in other cases of purchase in good faith a non domino; thus, if a person has lawful possession of goods on a title of loan or pledge, and fraudulently sells them, the lender or pledgor can demand restitution of them from a bona fide purchaser. Brown, Sale, p. 417 sq.; and note to Bell, Com. i. 305.

In comparing the civil and the modern law, it must be borne in mind that, under the Roman system, theft fell under the law of Obligations; it was simply a violation of the rights of property (delictum), which subjected the thief and any person aiding and abetting him to civil action at the instance of the party wronged: in modern jurisprudence, on the contrary, theft is part of the criminal code, and the law regarding it has been developed mainly from this point of view.

§ 4. Suppose the ownership and the possession of a thing have been severed, it might happen that the owner prefers to pay the possessor-even if a thief to hand over the thing to him rather than go to the trouble and expense of asserting his right as dominus by legal process. Hence the law recognised the idea of ́emptio possessionis,' provided (1) the buyer was proprietor and aware of the fact (ab initio id agatur), and (2) the seller was in a position to convey the legal title to possession which an ordinary seller had to give (possessio ad interdicta)-if he was merely a detentor holding for another, he had no independent right that could form the subject of a sale, and he could not

E

5. Alia causa est degustandi, alia metiendi: gustus enim ad hoc proficit, ut inprobare liceat, mensura uero non eo proficit, ut aut plus aut minus ueneat, sed ut appareat, quantum ematur.

6. Si emptio ita facta fuerit: 'est mihi emptus Stichus aut Pamphilus,' in potestate est uenditoris, quem uelit dare, sicut in stipulationibus, sed uno mortuo qui superest dandus est: et ideo prioris periculum ad uenditorem, posterioris ad emptorem respicit. sed et si pariter decesserunt, pretium debebitur: unus enim utique periculo emptoris uixit. idem dicendum est etiam, si emptoris fuit arbitrium quem uellet habere, si modo hoc solum arbitrio eius commissum sit, ut quem uoluisset emptum haberet, non et illud, an emptum haberet.

7. Tutor rem pupilli emere non potest: idemque porrigendum est ad similia, id est ad curatores procuratores et qui negotia aliena gerunt.

make the buyer superior in interdicto. Cp. note to L. 16 supra, and Digest, 41. 2. 8.

Faber thinks the words et in iudicio, etc., refer to the seller, and mean that he must have the jural possession as a condition of selling; but they apply more naturally to the buyer, for it is his aim to be enabled to use the interdicts with effect. The latter view is supported by the Basilika; they also confirm the MS. reading 'et,' which some editors propose to replace by ut or ita ut.

§ 5. It was very common in the wine trade, especially in large transactions (in doliis,' aversione '), for the buyer to stipulate that he should be afforded an opportunity of tasting the wine (degustatio,'' emptio ad gustum '), though there seems to be no text which says that such a condition was always implied (cp. Cato, De Re Rust. c. 148; D. 18. 6. 1 pr.; ib. 4, 1; ib. 15). The trial must be made within the term fixed, or, if no term is fixed, upon delivery without undue delay: default is held to be a renunciation of the condition. The import of the condition was, that the buyer could reject the wine only if it proved to be sour or mouldy (propter acorem vel mucorem); but if it was of merchantable quality, as we say, it appears he was bound to accept it, though it was not to his taste. This proviso, in fact, operated

5. Tasting has quite a different function from measuring; the right to taste implies a power of rejection, whereas the measuring of the commodity does not serve to increase or diminish the quantity sold, but only to show how much there is of it.

6. If the purchase is made in these terms, ' Stichus or Pamphilus is mine by purchase,' it is in the power of the vendor to give whichever he likes, just as in similar stipulations; but if one die, the survivor must be given, so that the vendor bears the risk of the former, the vendee the risk of the latter: but though both have died at the same time, the price remains due, for one at least lived at the risk of the vendee. The same is true where it was left to the purchaser to choose which he would have, provided the only thing left to his option was which he preferred to buy, and not whether he should buy at all.

7. A tutor cannot purchase anything belonging to his ward: a principle which must be extended to all similar cases, as curators, agents, and all who manage other people's business.

as a resolutive condition; accordingly the risk of the wine perishing (periculum interitus) passed to the buyer immediately, while the risk of deterioration in the respects above mentioned remained with the seller till the trial was made. The framers of the French Civil Code, however, wrongly regarding it as a suspensive condition, laid down the rule that the sale of wine, oil, etc., shall not be complete until the buyer has tasted and accepted (art. 1587), a rule which has proved most inconvenient in practice.

The condition in a sale ad mensuram has quite different effects: till the measuring takes place, there is no completed sale for want of determination of the thing sold.

§ 6. The first slave dies for the seller, for he is still debtor for the delivery, and must perform his obligation by delivering the other; the second dies for the buyer, for he must pay the purchase-price, though he gets nothing in exchange, the obligation of the seller being now impossible of performance. This is an example of the ordinary rule as to risk, where neither party is in fault. Inst. iii. 23. 3; Digest, 18. 6. 8 pr., etc.

Compare, for the seller's option in an alternative sale, L. 25 pr., and for the buyer's option, L. 7 pr.

35. GAIUS libro x ad edictum prouinciale.

Quod saepe arrae nomine pro emptione datur, non eo pertinet, quasi sine arra conuentio nihil proficiat, sed ut euidentius probari possit conuenisse de pretio.

L. 35 pr.-Phoenician traders carried the custom and the Hebrew name of earnest (érávón, a pledge) into Greece and Italy; the word took the form appaßàv in Greek, and this is copied in early Latin, but in the jurists the form is always arra : the resemblance of our word earnest' (in Welsh 'ernes,' in Scotcharles') may be accidental (Skeat).1 It might be either a sum of money or a token of some value (often a ring, D. 14. 3. 5, 15; 19. 1. 11, 6), given by the one contracting party to the other when the bargain was struck, as a sign of its completion and also as a pledge of its fulfilment. The point mainly insisted on in the texts is that earnest, though often given, was not a necessary condition; it was really a means of facilitating proof of the contract. Inst. iii. 23 pr.: emptio et uenditio contrahitur simulatque de pretio conuenerit, quamuis nondum pretium numeratum_sit ac ne arra quidem data sit: nam quod arrae nomine datur, argumentum est emptionis et uenditionis contractae. Cp. Gaius, iii. § 139. Some have thought, from the emphasis with which it is laid down that earnest was not a requisite of sale, that it may have played a more important part in the earlier law. If sale was originally a conveyance, an immediate exchange of the wares for the price,—in the next stage of its development there might be a relaxation of the necessity for instant payment, and the giving of a trifle as earnest of the price might be held sufficient to make out rei interventus and ground an action. The symbolical act of giving earnest would thus serve as a bridge between the purely formal and the purely consensual modes of sale. However this may be, it was not an essential part of a valid contract by the law of the classical period, although it was a common accessory. Neither was there any idea at this time of either party getting off his engagements by forfeiting the arra; it simply marked off the concluded contract and, in particular, the assent as to the price, from the preliminary negotiations. It was thus distinct from part-payment, which properly followed at the time of delivery, consisted of money, and indicated that credit was 1 Cp. Howe v. Smith, 27 Ch. D. at p. 102.

35. GAIUS.

It is common in making a purchase to give something by way of earnest, not because the agreement would be ineffectual without earnest, but to serve as a positive proof that the parties are at one as to the price.

given for the balance (C. iv. 45. 2): although if earnest was given in money, it might, when the contract came to be executed, be imputed to the price (D. 18. 3. 6, 2; ib. 8); if the earnest was something other than money, an action on the contract or a condictio sine causa would lie to enforce its return (D. 19. 1. 11, 6). It was forfeited to the seller if he put in force the lex commissoria. See p. 18.

The above seems to be the only form of earnest recognised in the Pandects; and it has received from the commentators the name arra confirmatoria. But Justinian, while leaving the classical practice in force, sanctioned by his later legislation a quite distinct, and possibly foreign, institution, to which the name arra contractu imperfecto data has been given, because it creates a certain tie between the negotiating parties who are in treaty with a view to effecting a sale. Hieronymus refers to it as arrabo futurae emptionis quasi quoddam testimonium. The novelty was that this earnest was given not upon the completion of the contract but during the preliminaries, and was held to be merely evidence of willingness to complete the contract. Either party was at liberty to draw back from the projected sale if he chose to incur a penalty, and the law, in that event, made the earnest the measure of damages to be paid by the party refusing to go on,— if it was the giver of the earnest, he forfeited what he had given; if it was the receiver, he had to restore the arra and as much more (C. iv. 21. 17, 1; cp. Inst. iii. 23 pr.). Unfortunately it is impossible to harmonise these passages in all points (see Bechmann, Kauf, ii. p. 422). Many think that the passage in the Inst. (hoc enim subsecuto, etc.) refers to completed sales and the penalties for non-execution. If so, the change introduced by Justinian came to this: either (1) that a sacrifice of the arra, whether given before or after the contract, and whether the contract was oral or written, entitled either party to refuse performance, a serious innovation in the doctrine of Obligation, which, however, has never wanted champions in France, or (2) that