qui scit [et tacuit non multum interest: nam qui scit1] praemonere debuit furem esse, hic non debuit facilis esse ad temerariam indicationem.

4. Si uenditor dolo fecerit, ut rem pluris uenderet, puta de artificio mentitus est aut de peculio, empti eum iudicio teneri, ut praestaret emptori quanto pluris seruum emisset,2 si ita peculiatus esset uel eo artificio instructus.

5. Per contrarium quoque idem Iulianus scribit, cum Terentius Uictor decessisset relicto herede fratre suo, et res quasdam ex hereditate et instrumenta et mancipia Bellicus quidam subtraxisset, quibus subtractis facile, quasi minimo ualeret hereditas, ut sibi ea uenderetur persuasit: an uenditi iudicio teneri possit? et ait Iulianus competere actionem ex uendito in tantum quanto pluris hereditas ualeret, si hae res subtractae non fuissent.

3

6. Idem Iulianus dolum solere a uenditore praestari etiam in huiusmodi specie ostendit: si, cum uenditor sciret fundum pluribus municipiis legata 3 debere, in tabula quidem conscripserit uni municipio deberi, uerum postea legem consignauerit, si qua tributorum aut uectigalis indictionisue quid nomine aut ad uiae collationem praestare oportet, id emptorem dare facere praestareque oportere, ex empto eum teneri, quasi decepisset emptorem : quae sententia uera est.

tenebitur emptori; quodsi nihil adfirmauit, emptoris erit periculum, are authority for the general rule that goods had to be delivered in such condition as to conform to the seller's assurances whether in stipulatory form or not (dicta et promissa). There was no difference, as in English law, between representation and warranty. See p. 90 sq. ante.

We are not expressly told here what the actio ex empto embraced -whether it lay for damages for non-performance or only for reduction of the price. The lacuna in the text has been filled up as Mommsen suggests.

§ 4. According to Paul (Sent. ii. 17. 6), the seller who made a false representation of this kind was bound either to make good the difference in value or to submit to a rescission of the sale

1 Mom. suppl. secundum Basil.

3 tributa?

2

scruus esset? (Krueg.) 4 cuius? (Mom.)

him and one who conceals what he knows: for the latter, knowing the slave was a thief, ought to have disclosed the fact, and the former should not have been so ready to make rash assertions.

4. If a thing fetches a higher price owing to some dishonesty on the seller's part, such as telling a falsehood about the technical skill or the peculium of a slave, he is liable under the action on purchase to make up to the buyer the difference in value as compared with a slave really possessing the peculium or training he represented.

5. Julian deals also with the converse case: Terentius Victor dies leaving a brother as heir, and one Bellicus secretly removes various articles, title deeds, and slaves belonging to the estate, thereby making it appear of very small value, and inducing a sale of it to himself cheap; can he be reached by the action on sale? Julian says the action is competent to recover the surplus which the estate would have been worth if the foresaid items had not been purloined.

6. Julian also points out that the seller is regularly held answerable for fraud in circumstances like the following: suppose the seller, knowing that a landed estate is burdened with legacies in favour of several city corporations, states in the announcement of the sale that it is liable only to one corporation, but subsequently makes it a condition of the contract that, if any taxes, dues, impost or road-rate should prove to be exigible, the purchaser shall be bound to pay, perform, or satisfy the same, the seller is nevertheless liable under the action on purchase for having imposed upon the buyer, a sound opinion in my judgment.

(cp. C. iv. 49. 9). Reduction of the price and not the full interesse is said to be the object of the actio empti in this case, which seems to conflict with the preceding sections; but the explanation may be that in certain cases, in particular where there is an available market, the two standards of damages are practically coincident. In the example here put, the buyer might have no interest in getting the trained slave other than the difference in value; if he recovers that he can go into the market and buy.

7. Sed cum in facto proponeretur tutores hoc idem fecisse, qui rem pupillarem uendebant, quaestionis esse ait, an tutorum dolum pupillus praestare debeat. et si quidem ipsi tutores uendiderunt, ex empto eos teneri nequaquam dubium est: sed si pupillus auctoribus eis uendidit, in tantum tenetur, in quantum locupletior ex eo factus est, tutoribus in residuum perpetuo condemnandis, quia nec transfertur in pupillum post pubertatem hoc quod dolo tutorum factum est.

8. Offerri pretium ab emptore debet, cum ex empto agitur, et ideo etsi pretii partem offerat, nondum est ex empto actio: uenditor enim quasi pignus retinere potest eam rem quam uendidit.

9. Unde quaeritur, si pars sit pretii soluta et res tradita postea euicta sit, utrum eius rei consequetur pretium integrum ex empto agens an uero quod numerauit? et puto magis id quod numerauit propter doli exceptionem.

10. Si fructibus iam maturis ager distractus sit, etiam fructus emptori cedere, nisi aliud conuenit, exploratum est.

§ 7. Compare D. 4. 3. 15 pr.: Sed et ex dolo tutoris, si factus est locupletior, puto in eum dandam actionem, sicut exceptio datur. See also D. 26, tit. 9, 3.

§ 8. It has been a good deal discussed whether the party suing on the contract of sale was bound, as a condition of raising his action, to show that he had fulfilled his part (see note to D. 18. 1. 78, § 2 supra, and L. 25 infra). If the buyer's duty is to pay the price as a counterpart to receipt of the goods, the proper inference would seem to be not that he must prepay the price in order to have a title to sue, but that he cannot ask judgment except on condition of payment. This is quite consistent with the seller's right of retention. Cp. D. 21. 1. 57 pr.: nam et si ex empto dominus agat, nisi pretium totum soluerit, nihil consequitur.

The res uendita nondum tradita is not strictly speaking a pledge, because the seller is undivested owner, and no one can have a right of pledge over his own property; but it may be described as quasi pignus, for the seller has a right of retention till he is paid the full price, just as a pignorate creditor has a

7. But when a case was submitted where the tutors had acted in this way in selling the pupil's property, he said the question was whether the pupil was bound to answer for the fraud of his tutors. If the tutors sold at their own hand, there is no doubt whatever that they are liable in an action on purchase; but if they only authorised a sale by the pupil, he is responsible so far as he has been enriched thereby, but his tutors are liable in damages for the balance without relief, because the liability for their dishonest dealing is not shifted to the pupil when he attains puberty.

8. When the buyer brings the action on purchase, he should tender payment of the price; consequently, if only a part be tendered, the action is ineffectual: for the seller is entitled to retain the subject sold as a sort of pledge.

9. Hence the question arises whether, if part of the price be paid and delivery given, and the buyer be then evicted, he can recover in the action on purchase the full price, or only the part he paid? In my opinion he will be prevented by the plea of fraud from getting more than he actually paid.

10. If land be sold when its produce is ripe, it is settled that the crop passes to the purchaser in the absence of any agreement to the contrary.

right to retain the pledge till the debt is extinguished. See D. 18. 4. 22: Hereditatis uenditae pretium pro parte accepit: reliquum emptore non soluente, quaesitum est an corpora hereditaria pignoris nomine teneantur. respondi, nihil proponi cur non teneantur. Cp. D. 21. 2. 31, 8: nam uenditor pignoris loco quod uendidit retinet quoad emptor satisfaciat. Pothier, § 63 sq.

In England the plaintiff in an action for nou-delivery need not prove he was ready and willing to pay till the seller shows he was ready to give delivery, payment and delivery being concurrent conditions. Wilks v. Atkinson (1815) 1 Marshall, 412; S. G. B. § 30. For the right of lien in England and of retention in Scotland, see note on p. 21 ante.

§ 10. See C. iv. 49. 13, and for a special agreement to the contrary D. 18. 1. 40, §§ 3, 4. Pothier, § 47.

11. Si in locatis ager fuit, pensiones utique ei cedent qui locauerat: idem et in praediis urbanis, nisi si quid nominatim conuenisse proponatur.

12. Sed et si quid praeterea rei uenditae nocitum est, actio emptori praestanda est, damni forte infecti uel aquae pluuiae arcendae uel Aquiliae uel interdicti quod ui aut clam.

13. Item si quid ex operis seruorum uel uecturis iumentorum uel nauium quaesitum est, emptori praestabitur, et si quid peculio eorum accessit, non tamen si quid ex re uenditoris.

14. Si Titius fundum, in quo nonaginta iugera erant, uendiderit et in lege emptionis dictum est in fundo centum esse iugera et antequam modus manifestetur, decem iugera alluuione adcreuerint, placet mihi Neratii sententia existimantis, ut, si quidem sciens uendidit, ex empto actio competat aduersus eum, quamuis decem iugera adcreuerint, quia dolo fecit nec dolus purgatur: si uero ignorans uendidit, ex empto actionem non competere.

§ 11. See examples of special agreement that the rents shall go to the buyer in D. 18. 1. 68 pr; § 16 infra; L. 53 pr. infra; D. 19. 2. 58 pr; Pothier, Louage, § 288. It must be remembered that by the Roman law the tenant farmer (colonus) had no real right over the lands, only a jus ad rem; and so, when the owner sold the lands, the purchaser was not bound to respect the lease, but might turn out the tenant, whose only remedy was by suing his landlord for damages: emptorem quidem fundinecesse non est stare [sinere] colonum, cui prior dominus locauit, nisi ea lege emit (C. iv. 65. 9). It is surprising that rents were not regarded as representing the natural fruits of the subject sold, and therefore as passing to the purchaser from the date of the contract, especially when we are told (§ 13) that the hire paid for a vessel or a draught animal was treated as in fructu. This difficulty has led Voet and others to hold that the rents were apportioned,—a view which necessitates a rather forced interpretation of this section, viz. that as the seller alone has privity of contract with the tenant, he must exact the rent, but is bound to account to the purchaser for the proportion effeiring to the period after the sale, or else he must assign his right of action.

1 postea? (Husch., cp. Basil.)