1. Qui nesciens loca sacra uel religiosa uel publica pro priuatis comparauit, licet emptio non teneat, ex empto tamen aduersus uenditorem experietur, ut consequatur quod interfuit eius, ne deciperetur.

2. Res in auersione empta, si non dolo uenditoris factum sit, ad periculum emptoris pertinebit, etiamsi res adsignata non sit.

63. IAUOLENUS libro VII ex Cassio.

Cum seruo dominus rem uendere certae personae iusserit, si alii uendidisset quam cui iussus erat, uenditio non ualet: idem iuris in libera persona est: cum perfici uenditio non potuit in eius persona, cui dominus uenire eam noluit.

1. Demonstratione fundi facta fines nominari superuacuum est: si nominentur, etiam ipsum uenditorem nominare oportet, si forte alium agrum confinem possidet.

regulation was confiscation of the property to the fisc, provided an information was laid during the period of service. Cp. D. 49. 16. 9; ib. 13.

§ 1. It seems clear that Modestine agrees with Ulpian (LL. 22-24 supra) that the sale of a res extra commercium is a nullity notwithstanding the bona fides of the purchaser, and he adds that it grounds a claim for damages against the seller.

Unfortunately, some of his expressions are ambiguous. Thus licet emptio non teneat' should mean according to usage, 'although the sale is invalid'; but some writers, who deny the absolute nullity of such dispositions, would translate thus, although the sale does not bind' sc. the buyer to pay (or, sc. the seller to deliver the res extra commercium, that being impossible). Again, the word 'decipi' sometimes implies that a person is the victim of the fraud or deceit of another, sometimes only that he is mistaken or misled without suggesting any intention on the part of another to take advantage of him; so that we cannot infer from the use of the word here that dolus or culpa lata on the part of the seller was necessary to ground the action for indemnity. The true inference from the texts seems to be, that when a seller makes a contract which is invalid on general grounds of law, or owing to facts personal to himself (as by selling a thing exempt from commerce or a non-existent inherit

1. When a man purchases holy, or religious, or public ground in the honest belief that it is private property, although the sale is not binding, yet he can bring the action on purchase to recover from the vendor what he has lost by being misled.

2. Except there be fraud on the part of the vendor, a thing sold en bloc is at the risk of the vendee, although it has not been delivered to him.

63. JAVOLEN.

If a slave, when ordered by his owner to sell a thing to a person named, sells it to a different person, the sale is void,—and the result is the same where a free man is the agent,-for a sale cannot be concluded in favour of a person to whom the owner did not consent to sell.

1. If the lands have been sufficiently set forth, it is superfluous to name the boundaries; when these are specified, it is the seller's duty to do so in the case where he possesses other conterminous lands.

ance, D. 18. 4. 8, 9; D. 11. 7. 8, 1; Inst. iii. 23. 5), he is liable. in damages to the other party even for culpa levis, e.g. for not knowing better; in other words, the Roman law held the seller answerable for diligentia in entering into a contract, and allowed action against him for any culpa in contrahendo (Ihering).

Lastly, the measure of the damages is left in doubt by the use of a phrase quod interfuit eius ne deciperetur, which sometimes denotes the full interest which the creditor has in the fulfilment of an obligation (quanti interest rem emptam habere, D. 19. 1. 13, §§ 1, 2), sometimes only the expense and loss caused by entering into a contract. Here it seems to follow from the nullity of the contract that the actio ex empto would lie merely for compensation in the latter sense (the negative interesse' of German writers); if the buyer could have sued for all he would have gained had the contract been executed (erfüllungs-interesse'), that would imply that the transaction was valid.

§ 2. See p. 76 supra.

L. 63, § 1.—If the lands sold have been pointed out, or are sufficiently ascertained in some other way, it is unnecessary to

64. IAUOLENUS libro II epistularum.

Fundus ille est mihi et Titio emptus: quaero, utrum in partem an in totum uenditio consistat an nihil actum sit.

respondi personam Titii superuacuo accipiendam puto ideoque totus fundi emptionem ad me pertinere.

Conuenit mihi tecum, ut certum numerum tegularum mihi dares certo pretio: quod ut faceres, utrum emptio sit an locatio ? respondit, si ex meo fundo tegulas tibi factas ut darem conuenit, emptionem puto esse, non conductionem: totiens enim conductio alicuius rei est, quotiens materia, in qua aliquid praestatur, in eodem statu eiusdem manet: quotiens uero et immutatur et alienatur, emptio magis quam locatio intellegi debet.

give the name of the boundaries; but if the seller retains lands marching with those sold, he is bound to specify the marches, for, as appears from D. 19. 1. 48, it was the seller's duty to clear up any doubtful question as to boundaries.

L. 64. There seems to be no other text dealing with the effect of a purchase sibi et alii. Javolen decides in the same sense that if in selling land I reserve a servitude over it ut mihi et uicino seruiat, the mention of my neighbour is surplusage, and the servitude belongs wholly to me (D. 8. 4. 5); the principle apparently is that what is void accresces to what is valid. This was in accordance with the Sabinian view. The Proculians held the opinion that a stipulation by A for payment of a sum to A and B entitled A as promisee to payment of half the sum, and was void for the remainder, and Justinian gave legislative sanction to this opinion in the case of unilateral obligations (Inst. iii. 19. 4; cp. Gaius, iii, 103). Both schools agreed that B acquired no right. The principle of the Roman law was that an agreement between A and B whereby A undertakes that C shall do something for B or receive something from him, so as to be immediate debtor or creditor of B, is in general invalid; C is not bound by it and takes nothing under it, even if A is his inandatory, and it is inoperative also between A and B. See D.

64. JAVOLEN.

The query was put whether, suppose I have bought a piece of land for Titius and myself, the sale is valid for the whole of the land or for the half only, or is entirely void. My answer was, 'the mention of Titius is, in my opinion, to be construed as a superfluity, and therefore I am the purchaser of the whole of the land.'

65. JAVOLEN.

I have made an agreement with you to supply me with a certain number of tiles for a fixed price: does the transaction fall under sale or hiring? The answer was: an agreement by me to furnish to you tiles made with the clay on my land is, in my opinion, not hiring, but sale. For there is hiring of something whenever the material on which labour is spent remains with its owner in its former state; but when it is transformed and the property passes, we must understand sale rather than hiring.' 44. 7. 11, and, for the exceptions from this rule, Vangerow, § 608. If, as here, the bargain is that B shall sell something to A and C, it was still held that C was invested with no right, and the controversy between the schools was about the disposal of the share intended for him.

L. 65. The criterion here set up for distinguishing sale from location has been referred to already on p. 65. Some inferior MSS. give quas tu for quod ut, a reading supported by the clear version in Basil. xix. 1. 63: Conuenit mihi tecum ut certum numerum tegularum pro certo pretio faceres. Si quidem materia tua est, ex qua fiunt, uenditio est; si uero ego eam dedi, conductio est; nam in uenditione dominium materiae mutatur; in conductione uero eiusdem manet. The form of hiring suggested by the circumstances would be locatio conductio operis.

The decision covers all products of the soil which the owner spends labour in preparing or working, and then disposes of for a fixed sum, as stones, coals, etc. If the person who wanted the bricks had arranged to work the clay on the other's land and make the bricks for himself, that would be a case of letting to hire.

H

66. POMPONIUS libro XXXI ad Quintum Mucium.

In uendendo fundo quaedam etiam si non dicantur, praestanda sunt, ueluti ne fundus euincatur aut usus fructus eius, quaedam ita demum, si dicta sint, ueluti uiam iter actum aquae ductum praestatu iri: idem et in seruitutibus urbanorum praediorum.

1. Si cum seruitus uenditis praediis deberetur nec commemorauerit uenditor, sed sciens esse reticuerit et ob id per ignorantiam rei emptor non utendo per statutum tempus eam seruitutem amiserit, quidam recte putant uenditorem teneri ex empto ob dolum.

2. Quintus Mucius scribit, qui scribsit' ruta caesa quaeque aedium fundiue non sunt,' bis idem scriptum: nam ruta caesa ea sunt quae neque aedium neque fundi sunt.

67.

POMPONIUS libro XXXIX ad Quintum Mucium.

Alienatio cum fit, cum sua causa dominium ad alium transferimus, quae esset futura si apud nos ea res mansisset, idque

L. 66 pr.-If the buyer has the usufruct of the property carried off from him, that is partial eviction, and the seller must indemnify him for losing the beneficial use and enjoyment (D. 21. 2. 15, 1; ib. 39, 5; ib. 49).

Quaedam ita demum, etc. This clause is often taken to mean that the lands sold enjoyed servitude rights over the adjacent lands, which rights the seller had conveyed, and was bound to make effectual. But, looking to the context, it is better to understand the words of servitudes affecting the lands sold for which the seller has engaged to indemnify the purchaser. Pomponius wishes to contrast the implied warrandice against the existence of personal servitudes (e.g. usufruct) over the lands with the express warrandice necessary to protect the purchaser against the burden of any praedial servitudes that may emerge (e.g. iter, etc.). Cp. L. 59. § 1. Cp. D. 19. 1. 1, 1; ib. 21, 1.

§ 2. For a definition of ruta caesa see D. 50. 16. 241: In rutis caesis ea sunt, quae terra non tenentur, quaeque opere structili tectorioue non continentur. It was an old expression embracing all plenishing and stores that did not pass to the buyer as accessories, everything falling into the category of instrumentum (D. 33, tit. 7) or suppellex (D. 33, tit. 10); it was opposed to iuncta