interrogauerit: erit mihi fundus emptus ita ut eum intra kalendas Iulias liberes,' uelita ut eum intra kalendas a Titio redimas.' si uero sub condicione facta emptio est, non poterit agi ut condicio impleatur.

1. Mensam argento coopertam mihi ignoranti pro solida uendidisti imprudens: nulla est emptio pecuniaque eo nomine data condicetur.

42. MARCIANUS libro I institutionum.

et

Domini neque per se neque per procuratores suos possunt saltem criminosos seruos uendere, ut cum bestiis pugnarent. ita diui fratres rescripserunt.

43. FLORENTINUS libro VIII institutionum.

Ea quae commendandi causa in uenditionibus dicuntur, si palam appareant, uenditorem non obligant, ueluti si dicat seruum speciosum, domum bene aedificatam: at si dixerit hominem litteratum uel artificem, praestare debet: nam hoc ipso pluris uendit.

§ 1. See L. 14 supra, and notes on pp. 30, 36. Here the buyer is misled by the seller innocently, as to the kind of merchandise he is buying. The table was sold expressly as solid silver; it is really only coated over (cooperta) with silver. The error voids the contract, and the buyer can recover the price.

It has been proposed to take inauratum (L. 14) as meaning ' inlaid with gold' as opposed to solid gold: in which case a vas inauratum might quite well pass as aureum,' because it consists in part of gold, very much as we speak of a 'gold' watch, a 'silver' knife.

L. 43 pr., § 1.-Appareat is the reading of P., if the quality is patent' or 'obvious on inspection.' Obvious faults were also excepted in the edict of the curule aediles, ad eos enim morbos uitiaque pertinere edictum aedilium probandum est, quae quis ignorauit uel ignorare potuit, such as blindness or an ulcer on the head (D. 21. 1. 14, 10; ib. 1, 6). That title contains several illustrations of the difference between a mere affirmation

stipulated as follows: the purchase shall take effect on the understanding that you free the lands by the 1st of July,' or 'that you redeem the lands from Titius by the 1st.' But if the purchase was made subject to a condition, no action is competent to compel performance of the condition.

1. You have unwittingly sold me a table overlaid with silver for one of solid silver without my knowing it to be so the sale is void and a condictio will lie to recover the money paid for it.

42. MARCIAN.

Masters cannot either personally or by their agents sell their slaves, even if guilty of crime, to fight with wild beasts. There is a rescript by the brothers of blessed memory to that effect.

Statements made at the time of sale in praise of the goods, if they refer to patent qualities, e.g. that a slave is finely made or that a house is well built, do not bind the seller: but if he represents a slave as well educated or a skilled workman, he is responsible for that, because it directly enhances the price.

made at the time of the sale to recommend the wares and a proper dictum promissumve, warranty': Sciendum tamen est, quaedam etsi dixerit, praestare eum non debere, scilicet ea quae ad nudam laudem serui pertinent, ueluti si dixerit frugi probum dicto audientem: ut enim Pedius scribit, multum interest commendandi serui causa quid dixerit, an uero praestaturum se promiserit quod. dixit. Plane si dixerit aleatorem non esse, furem non esse, ad statuam nunquam confugisse, oportet eum id praestare (L. 19. pr., § 1). The law as to mere puffery is clearly stated in D. 4. 3. 37 : Quod uenditor ut commendet dicit sic habendum quasi neque dictum neque promissum est: si uero decipiendi emptoris causa dictum est, acque sic habendum est, ut non nascatur aduersus dictum promissumue actio, sed de dolo actio. The law as to special. assurances is that the vendor who gives them undertakes thereby a guarantee for the condition and qualities of the article, provided the buyer might reasonably take them as such, but not if they are mere vaunts which none but a credulous person would take

1. Quaedam etiam pollicitationes uenditorem non obligant, si ita in promptu res sit, ut eam emptor non ignorauerit, ueluti si quis hominem luminibus effossis emat et de sanitate stipuletur: nam de cetera parte corporis potius stipulatus uidetur, quam de eo in quo se ipse decipiebat.

2. Dolum malum a se abesse praestare uenditor debet, qui non tantum in eo est qui fallendi causa obscure loquitur, sed etiam qui insidiose obscure dissimulat.

44. MARCIANUS libro III regularum.

Si duos quis seruos emerit pariter uno pretio, quorum alter ante uenditionem mortuus est, neque in uiuo constat emptio.

seriously ea autem sola dicta siue promissa admittenda sunt, quae sic dicuntur ut praestentur, non ut jactentur (D. 21. 1. 19, 3). When binding as guarantees, they were to be construed favourably (cum quodam temperamento'); thus if the seller engages that a slave knows a trade, the buyer is not to expect a first-rate workman, he must be content if the slave will pass muster as a tradesman according to ordinary parlance (loc. cit. § 4); if the seller says a slave is steady or laborious, you must not look for the gravity of a philosopher or for one who will work night and day; but if he promises a first-rate cook, he is responsible if the slave is only of average skill (ib. L. 18). For the general rules about warranty, see Windscheid, § 395.

§ 2. Dolum malum abesse is a warranty implied in the nature of a bonae fidei contract, and no contracting party can stipulate for exemption from it: non ualere si conuenerit ne dolus praestetur (D. 50. 17. 23; cp. infra L. 68; Pothier, § 233 sq.). See further, D. 19. 1. 1, 1; ib. 6, 8.

Many editors remove the second 'obscure,' and thus get a sharp contrast betweem ambiguous language and crafty concealment. On the other hand, the MS. reading is confirmed by the Basilika, and it must be kept in view that silence as well as speech is often a means of equivocation.

For the treatment of warranty in English law, see S. G. B., §§ 12-16; Scots law was, to a large extent, assimilated to the English by the Mercantile Law Amendment Act (1856) § 5. Warranty is defined as an agreement with reference to goods

1. In some cases even warranties do not bind the seller, if the thing is so obvious that the purchaser could not help knowing it, as for example when a man buys a slave who has lost his eyes and takes a warranty of soundness: for he is held to have stipulated for soundness of body in other respects and not in that particular on which he was self-deceived.

2. The seller must always warrant his innocence of fraud-a term which includes not only ambiguous statements intended to mislead, but also studied and equivocal concealment.

44. MARCIAN.

A man bought two slaves together for a slump sum, and one dies before the sale is carried through; the purchase does not hold for the survivor either.

which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim of damages, but not to a right to treat the contract as repudiated' (S. G. B. § 62; cp. § 54). The following rules, which hold both in England and Scotland, will serve to illustrate the present lex. Any affirmation made at the time of sale may amount to a warranty, provided it is intended as such-that is, if it enters into the bargain as part of it (Benj. p. 609 sq; Bell, Com. i. 466, note): the criterion still is whether it was intended and understood that the buyer might rely on the representations of the seller. Again, the eulogies which dealers are accustomed to make of their goods are not to be received as warranties; they are understood in the ordinary intercourse of trade as boastful recommendations, which the buyer is to take or reject according to his prudence' (Bell, Prin. § 111); so simplex commendatio non obligat (Power v. Barham (1836) 4 A. & E. 473; Pothier, § 263). Lastly, the buyer's eye is his merchant where the defect is obvious; a general warranty is not binding unless the vice was latent at the time of the sale. Pothier, Vente, § 207; cases in Benj. p. 613 sq.

L. 44.-Where the several corpora embraced in a single contract are related to each other in such a way that the buyer must have meant the contract to be executed as an entire contract or not at all, the contract is wholly void as soon as the prestation

54. MARCIANUS libro IV regularum.

Labeo libro posteriorum scribit, si uestimenta interpola quis pro nouis emerit, Trebatio placere ita emptori praestandum quod interest, si ignorans interpola emerit. quam sententiam et Pomponius probat, in qua et Iulianus est, qui ait, si quidem ignorabat uenditor, ipsius rei nomine teneri, si sciebat, etiam damni quod ex eo contingit: quemadmodum si uas aurichalcum pro auro uendidisset ignorans, tenetur ut aurum quod uendidit praestet.

of any one corpus becomes impossible. Cp. D. 45. 1. 29: sed et familiae et omnium seruorum stipulatio una est: itemque quadrigae aut lecticariorum stipulatio una est. So when a troupe of comic actors or a team of horses is bought, the death of one of them, before the sale is complete, cancels the bargain as regards the rest (D. 21. 1. 34-38).

L. 45. It is difficult to reconcile this text with the principles laid down in LL. 9-11 (p. 30 supra) regarding the effect of the so-called error in substantia, i.e. mistake as to the qualities of the res vendita. According to the most probable view of these passages, the test of the materiality of such error is whether the difference between the real and the supposed qualities is so great as to put the commodity in a different class of merchandise and give it a different denomination; if it is, the error is essential and the contract is a nullity. But here uestimenta interpola (i.e. cast-off clothes done up to look like new, cp. Plautus, Most. 272) are bought pro novis, which is clearly a case of non-essential error, and yet the buyer gets relief from the vendor, who must make good the difference in value if he innocently sold them as new, and the full interesse if he did so fraudulently. The obligation in the latter case is quite clear; but it is difficult to account for the liability of the bona fide seller except by assuming that he warranted the clothes as new, either expressly, or impliedly as by supplying them to a purchaser who asked for new clothes. In any case there is a great array of authorities cited for this decision: Marcian quotes most of the lex from Labeo, who adopts part of the decision from Trebatius, and the complement of it from Pomponius and Julian. The words' quam

ex eo contingit' seem to be a parenthesis inserted