Sidor som bilder

73. PAPINIAN. If a sacred building be destroyed by an earthquake, the site remains consecrated and therefore cannot be sold.

1. The unconsecrated space within the walls of a buryingground, kept as a garden or shrubbery, belongs to the purchaser, unless expressly reserved by the seller.

74. PAPINIAN. The delivery of the keys of a warehouse is considered equivalent to delivery of the possession of the goods stored there, provided it is done at the warehouse : when that has taken place, the purchaser instantly acquires the property and the possession, even without opening the warehouse : while if the goods therein were not the property of the seller, usucapion at once begins to run.

mihi traditam Priscus ait . . . non est enim corpore et actu necesse adprehendere possessionem, sed etiam oculis et affectu argumento esse eas res, quae propter magnitudinem ponderis moueri non possunt, ut columnas, nam pro traditis eas haberi, si in re praesenti consenserint; et uina tradita uideri, cum claues cellae vinariae emptori traditae fuerint. Accordingly, Savigny, in his treatise on Possession, and the modern school generally, reject the distinction between real and fictitious delivery as foreign to the civil law. They hold that in the delivery by transfer of title-deeds (Code, loc. cit.) it must be understood that the slaves were present when the gift was made, so that it was really a case of traditio longa manu, just as a sum of money was held to be delivered when the debtor placed it by the creditor's orders in a place where the latter could see it (D. 46. 3. 79)—a passage which may explain why it is here said that the key must be given at the warehouse. So where delivery is given by handing over the keys, the point is not that the keys represent the goods in any sense, but they are necessary to give the buyer control over the goods; consequently he who has the keys comes to be recognised as in possession of the contents of the building.

In modern law it is not necessary that the key be handed over at the warehouse. See French Code, art. 1606; S. G. B. $ 31, 3. In Scotland the giving of the key has always been held an act of 75. HERMOGENIANUS libro II iuris epitomarum. Qui fundum uendidit, ut eum certa mercede conductum ipse habeat uel, si uendat, non alii sed sibi distrahat, uel simile aliquid paciscatur: ad complendum id quod pepigerunt ex uendito agere poterit.


PAULUS libro VI responsorum. Dolia in horreis defossa, si non sint nominatim in uenditione excepta, horreorum uenditioni cessisse uideri.

1. Eum qui in locum emptoris successit isdem defensionibus uti posse quibus uenditor eius uti potuisset, sed et longae possessionis praescriptione, si utriusque possessio impleat tempora constitutionibus statuta.

77. TAUOLENUS libro IV ex posterioribus LABEONIS. In lege fundi uendundi lapidicinae in eo fundo ubique essent exceptae erant, et post multum temporis in eo fundo repertae real or actual delivery, and not symbolical (Bell, Com. i. 186; Maxwell v. Stevenson (1831) 5 W. & S. 269); and the circumstance that the seller has means of access by a master key, or retains control of an outer gate, will not affect the reality of the buyer's possession.

L. 75.—See Paul to the same effect in D. 19. 1. 21, $$ 4-5. Conditions forbidding or restricting alienation, such as the pactum de retrouendendo binding the buyer to sell the thing back to the vendor if he demanded it, and the pactum, potiuņoews, giving the seller the right of pre-emption if the buyer wished to sell, had purely obligatory, not real effects. The validity of pacts between buyer and seller in restraint of the natural rights of property (e.g. restraining the purchaser from selling the land without his author's consent, or from making it sacred or religious) was denied in the classical law, because of the want of interest in the seller (D. 2. 14. 61). But Justinian, holding the interest of good neighbourhood to be sufficient, decreed that an obligation undertaken in a sale or other contract not to build a tomb or otherwise put the land extra commercium was to be upheld (C. iv. 54. 9).

75. HERMOGENIAN. If the seller of a piece of land stipulates with the buyer for a lease of it at a certain rent, or for a re-sale to himself alone if the buyer wishes to sell, or for any such condition, he can bring the action on sale to enforce execution of the bargain.

76. PAUL. Vats sunk in the ground in a wine-store count as accessories when the store is sold, unless they are expressly reserved.

1. A person who succeeds to the rights of the buyer can employ the same defences as his author could, and also the plea of the long prescription if the possession of both taken together completes the period required by the constitutions.

77. JAVOLEN. In the contract for the sale of an estate there was a reservation of all quarries wherever situate ; and long afterwards quarries

L. 76 pr.--Dolium (milos) was the largest vessel in use for storing wine, oil, corn, etc., having a capacity of 100 gallons and

It was of globular shape, with a wide mouth, and was made of earthenware. Dolia were often sunk deep in sand or earth in the cellar or store. Owing to their size they were usually sold along with the house or lands. Vat, tun, or pipe conveys the idea better than cask or barrel. Cp. D. 19. 1. 17 pr.; ib. 54, 1.

§ 1. Accessio temporis seu possessionis was allowed first to universal successors and later to singular successors on the principle Qui in ius dominiumue alterius succedit, iure eius uti debet (D. 50. 17. 177 pr.; cp. ib. 156, § 2). See Inst. ii. 6, $$ 12, 13. Paul alludes here to a constitution of Severus and Caracalla which granted to vendees the right to join their possession to that of their authors', in order to make a title by completing the long possession; cp. D. 41. 4. 2, 20 : emptori tempus uenditoris ad usucapionem procedit.


L. 77.-In D. 50. 17. 34 Ulpian enunciates the rule for the construction of contracts : id scquimur quod actum est, aut, si non pareat quid actum est, erit consequens ut id sequamur, quod in

erant lapidicinae. eas quoque uenditoris esse Tubero respondit : Labeo referre quid actum sit: si non appareat, non uideri eas lapidicinas esse exceptas: neminem enim nec uendere nec excipere quod non sit, et lapidicinas nullas esse, nisi quae apparent et caedantur: aliter interpretantibus totum fundum lapidicinarum fore, si forte toto eo sub terra esset lapis.

hoc probo.

78. LABEO libro iv posteriorum a IAUOLENO epitomatorum.

Fistulas emptori accessuras in lege dictum erat: quaerebatur, an castellum, ex quo fistulis aqua duceretur, accederet. respondi apparere id actum esse, ut id quoque accederet, licet scriptura non continetur.

1. Fundum ab eo emisti cuius filii postea tutelam administras, nec uacuam * accepisti possessionem. dixi tradere te tibi possessionem hoc modo posse, ut pupillus et familia eius decedat de fundo, tunc demum tu ingrediaris possessionem.

2. Qui fundum ea lege emerat, ut soluta pecunia traderetur ei possessio, duobus heredibus relictis decessit. si unus omnem pecuniam soluerit, partem familiae herciscundae iudicio seruabit ; nec, si partem soluat, ex empto cum uenditore aget, quoniam ita contractum aes alienum diuidi non potuit. regione in qua actum est frequentatur. quid ergo, si neque regionis mos appareat, quia varius fuit ? ad id, quod minimum est, redigenda summa est. Accordingly, a clause reserving the right to work quarries or the like is, in the absence of any clear evidence of the intention of the parties, held to apply only to things known to exist at the time of the contract; the parties are not taken to have had in view things absolutely unknown when they fixed the price; paria sunt, non esse et non apparere, as it has been tersely put. But the bequest of a usufruct of lands (somewhat like an 'estate for life' or 'liferent') carried the right to open new mines and quarries, as well as to work the stone and minerals known to exist at the date of the bequest (D. 7. 1. 9, 3; ib. 13, 5).

L. 78 pr.—All works for drawing, pumping, or bringing in water, including an artificial reservoir outside a house (castellum),

were opened upon the lands. Tubero gave it as his opinion that they also belonged to the seller: but Labeo held that it depended upon the intention of the parties; if that was not clear, he thought those quarries had not been reserved, for no one sells or reserves what is non-existent, as quarries are until they are opened up and worked: on any other construction, the whole estate would fall under the clause of reservation, if it turned out that there was a bed of stone underlying the whole of it. This latter opinion I adopt.

78. LABEO. In the conditions of sale it was provided that the water-pipes should pass to the purchaser as an accessory; the question arose whether the reservoir from which the water was conveyed by these pipes was also an accessory. I replied that the intention plainly was to treat it as an accessory, although the clause did not expressly mention it.

1. You bought an estate from a man, and (on his death) you became tutor to his son, without ever having been put in possession. I gave an opinion that you can deliver possession to yourself in this way—by the pupil and his slaves removing from the estate before you enter into possession.

2. A man who had bought an estate on the terms that the price must be paid before possession was given, died leaving two heirs. If one of them pays the whole price, he will retain the half in the action for division of the inheritance; but if he pays only his share, he cannot bring the action on purchase against the seller, because a debt contracted in this way is not severable.

were held to be parts and pertinents. L. 40, 6 supra; D. 19. 1. 15; ib. 17, 7; ib. 38, 2.

$ 1. Nec uacuam is an emendation proposed for nequaquam (Flor.).

§ 2. A purchaser had to tender the price in full as a condition of getting judgment against the vendor in an action on the contract (D. 19. 1. 13, 8; cp. D. 18. 4. 22); similarly, if an owner

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