8. Si quis in uendendo praedio confinem celauerit, quem emptor si audisset, empturus non esset, teneri uenditorem.

36. ULPIANUS libro XLIII ad edictum.

Cum in uenditione quis pretium rei ponit donationis causa non exacturus, non uidetur uendere.

37. ULPIANUS libro III disputationum.

Si quis fundum iure hereditario sibi delatum ita uendidisset : 'erit tibi emptus tanti, quanti a testatore emptus est,' mox inueniatur non emptus, sed donatus testatori, uidetur quasi sine pretio facta uenditio, ideoque similis erit sub condicione factae uenditioni, quae nulla est, si condicio defecerit.

38. ULPIANUS libro VII disputationum.

Si quis donationis causa minoris uendat, uenditio ualet : passed to the buyer, although he had not checked the weight and quality of the oil, which he was entitled by usage to do. Lord J.-C. Inglis there expressed an opinion that where a mass of fungibles, certain and known by general description but of unascertained extent, has been sold at a price according to measure, the contract is not complete so as to transfer the risk to the buyer until the mass has been measured and the price thus ascertained. Though there seems to be no express decision on that point, nor on the case where the quantity sold is still an undivided part of a larger mass, Bell pronounces in favour of the same practical result as has been reached in England (Com. i. 473; where the learned editor of the 7th ed. dissents). See also Anderson (1870) 9 Macp. 122, and Walker (1873) 11 Macp. 906.

§ 8. Pothier adopts this decision and puts it among the engagements to which good faith binds the vendor, au moins dans le for de la conscience (§ 236). It could hardly be maintained now dans le for extérieur that the seller of lands has a duty to inform the buyer that he will have a troublesome neighbour. The modern conscience is content with caveat emptor in a matter of this kind.

L. 36.-This text is one of the foundations for the familiar rule that the price must be ' verum'the agreement that the

8. The seller of a piece of land is responsible for having concealed the name of an adjoining proprietor, if the knowledge of it would have kept the purchaser from buying.

36. ULPIAN.

When a person sells a thing, putting a price on it which he does not mean to exact, his purpose being to make a gift of it, that is not held to be a sale.

When a man sells an estate to which he has succeeded under a will on these terms, you shall have it for what the testator paid for it,' and it afterwards transpires that the testator got it in gift and not by purchase, the sale is regarded as one in which no price has been fixed, and so it is in the same position as a conditional sale, which is void if the condition fails.

38. ULPIAN.

If a person sells for a small price meaning to make a gift, the seller is to get the price and the buyer is to get the thing must be seriously meant (L. 2. 1, note). If the mention of a price is a mere sham, tacked on for the look of the thing, the disposition is invalid as a sale, but valid as a donation according to the maxim plus valet quod agitur quam quod simulate concipitur. So Code iv. 38. 3: Si donationis causa uenditionis simulatus contractus est, emptio sui deficit substantia: ib. 9, donationis gratia praedii facta uenditione si traditio sequatur, actione pretii nulla competente perficitur donatio. Under Justinian no special form was required for a donation of less than 500 solidi; so that a gift under cloak of a sale would be good up to that amount. Pothier, § 18.

L. 37.-There is here only the appearance of a price, and so no sale on the other hand there was no intention to make a gift, and so no donation. Donation would be inferred, if the heir had known that the testator got a gift of the lands. Pothier, § 16.

L. 38.—If a thing is purposely sold under value out of regard for the buyer, such a disposition (venditio gratiosa') is quite

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totiens enim dicimus in totum uenditionem non ualere, quotiens uniuersa uenditio donationis causa facta est: quotiens uero uiliore pretio res donationis causa distrahitur, dubium non est uenditionem ualere. hoc inter ceteros: inter uirum uero et uxorem donationis causa uenditio facta pretio uiliore nullius momenti est.

39. IULIANUS libro xv digestorum.

Si debitor rem pigneratam a creditore redemerit, quasi suae rei emptor actione ex uendito non tenetur et omnia in integro sunt creditori.

1. Uerisimile est eum qui fructum oliuae pendentis uendidisset, et stipulatus est decem pondo olei quod natum esset, pretium constituisse ex eo quod natum esset usque ad decem pondo olei: idcirco solis quinque collectis non amplius emptor* petere potest quam quinque pondo olei, quae collecta essent, a plerisque responsum est.

valid as a sale, because in this case there is a price, though a low one; at the same time it has the character of donation pro tanto. The price, however, must not be nugatory, or so disproportionate to the value of the thing as to suggest that it is not seriously meant si quis conduxerit nummo uno, conductio nulla est, quia et hoc donationis instar inducit (D. 19. 2. 46; cp. D. 41, 2. 10, 2).

Sale at a low price by one spouse to the other was invalid owing to the prohibition of donatio inter virum et uxorem. See D. 24. 1. 5, 5 for further developments of the principle. Pothier, §§ 19-21, 39.

Observe that the above texts do not involve the condition that the price shall be iustum or adequate to the true worth of the thing.

L. 39 pr.-In integro sunt means that the creditor has the same right over the pledge as before the attempted purchase. So also L. 16 pr. supra, and D. 13. 7. 40 pr.: debitor a creditore pignus quod dedit frustra emit, cum rei suae nulla emptio sit. The proprietor is still dominus of his pledge, and the only thing he can do is to pay the debt and thus relieve the res pignerata from the nexus under which it lies. From D. 17. 1. 22, 3 it seems that the owner could give a mandate to a friend to buy in his pledges

sale is valid; for it is only when donation is the sole consideration moving the sale that we hold it absolutely void; but when a thing is sold at a reduced price as a mode of donation, there is no doubt that the sale is good. This is true of all parties except husband and wife; a sale at a low price by one spouse to the other, intended to operate as a donation, has no force whatever.

39. JULIAN.

A debtor, who buys from his creditor a thing he has pledged, cannot be sued by the action on sale, the principle being that he is buying his own property, and the creditor's rights remain unaffected.

1. Where a man has sold the crop of olives on a tree and stipulated for ten pounds of the oil to be obtained, it appears to me that he has fixed a price out of the oil that may be produced not exceeding ten pounds: accordingly, if the yield of oil is only five pounds, the buyer cannot claim anything more than the five pounds actually obtained; such is the opinion of most of the jurists.

when exposed for sale; the friend acquired the property for himself in the first instance according to the Roman idea of agency. Though the owner could purchase an adverse right of possession (p. 65), apparently he was not regarded as purchasing at all when he discharged a personal or real burden affecting his property; but in the case of a servitude, in particular, this must be held to be doubtful in the absence of distinct authority, for there are traces of the practical extinction of a servitude being accomplished by the grant of a counter-servitude in favour of the hitherto servient tenement, in which case there would be a quite intelligible res vendita.

Some of the dispositions which the civil law held to be sales we should now treat as assignations, e.g. claims of debt.

§ 1. The circumstances supposed are that a man has sold an expected olive-crop (an emptio rei speratae, L. 8 supra), and has stipulated for 10 lbs. of the oil that may be produced (words which are held to be taxative), the buyer to be at the expense of pressing the oil. Held, that the buyer cannot demand from the

40. PAULUS libro IV epitomarum Alfendi digestorum.

Qui fundum uendebat, in lege ita dixerat, ut emptor in diebus triginta proximis fundum metiretur et de modo renuntiaret, et si ante eam diem non renuntiasset, ut uenditoris fides soluta esset emptor intra diem mensurae quo minorem modum esse credidit renuntiauit et pecuniam pro eo accepit: postea eum fundum uendidit et cum ipse emptori suo admetiretur, multo minorem modum agri quam putauerat inuenit: quaerebat, an id quod minor is esset consequi a suo uenditore posset. respondit interesse, quemadmodum lex diceretur: nam si ita dictum esset, ut emptor diebus triginta proximis fundum metiatur et domino. renuntiet, quanto modus agri minor sit, quod* post diem trigensimum renuntiasset, nihil ei profuturum: sed si ita pactum esset, ut emptor in diebus proximis fundum metiatur et de modo agri renuntiet, etsi* in diebus triginta [non] renuntiasset minorem modum agri esse, quamuis multis post annis posse eum quo minor is modus agri fuisset repetere.

seller more than 5 lbs., if that is the whole yield of oil. When pounds of oil are mentioned in lieu of price, we must suppose Julian to mean their money value; otherwise the bargain would not be sale. The point decided is that the seller is responsible for no more than the actual yield; he could not be sued by the buyer for damages for the other 5 lbs. Cp. Basil. xix. 1. 37: uendidi tibi fructum pendentis oliuae uel promisi decem pondo, et sola quinque pondo nasci contigit: non amplius quam quinque pondo a me exigentur.

That is quite an intelligible decision, but what the context leads us to expect is a determination not as to the seller's liability for the deficient yield, but whether the buyer is liable to pay anything more than the value of 5 lbs. Hence many

editors suspect that an error has crept into the report; the sense desired may be got by reading ab emptore for emptor, or better, eum petere posse (Mommsen) for emptor petere potest. The main point would then be that the price fixed is simply a limit; the buyer of the crop is to pay the seller nothing if there is no crop, for such a sale is conditional (p. 24); if there is a crop, the price