Emptio-Venditio

Merx & Pretium

G. 3 § 139. The contract of purchase and sale is concluded so soon as the price is agreed upon and before the price or any earnest is paid. The earnest is merely evidence of the completion of the contract.

Perfection of the Contract

the Price & the Merchandise

The Certainty of Price

Gai, 3 § 140. The price must be certain. If there is an agreement to purchase at a price to be fixed by another person, as say by Titius, Labeo, whose opinion is approved of by Cassius, says the contract is invalid, Ofilius says it is a sale, and his opinion is followed by Proculus.

D. 18.1.1.1 (Paul, Edict, book 33) But while it may be doubted whether a true sale can be made to-day without the employment of coin, as, for instance, if I gave a toga and received a tunic instead; Sabinus and Cassius think that, in this case, there is a veritable purchase and sale, but Nerva and Proculus are of the opinion that this is an exchange, and not a purchase. Sabinus gives Homer as an example, who relates that the army of the Greeks purchased wine with copper, iron, and slaves, as follows:From these ships long-haired Achaeans bought their wine. Some bartered with bronze, some with shiny iron, VII 474others with hides, live oxen, or with slaves. These verses, however, seem to indicate an exchange and not a purchase, like the following: Then Zeus, son of Cronos, stole Glaucus' wits,

for he gave Tydeus' son his golden armour,

worth one hundred oxen, exchanging that VI 234

for armour made of bronze, worth only nine. (trans. by Ian Johnston)In support of the opinion of Sabinus, the following can be quoted with greater effect, that is, where the same poet says, Her long ago Laertes had bought with his wealth (Odyssey I 430). The opinion of Nerva and Proculus is, however, the better one, for it is one thing to sell, and another to purchase; one thing to be a purchaser, and another a vendor; just as the price is one thing, and the merchandise another; but in an exchange it cannot be ascertained which is the purchaser and which is the vendor.

PRICE: Sabinus’ solution

G. 3. § 141fin. Caelius Sabinus, however, says that if I give you a slave for slave, as the price of something you have for sale, for instance, land, then the land is considered to have been sold and the slave to have been given as price for land...

the problem behindVolusius Maecianus, Assis distributio 45: Victoriatus’ values nowadays the same as quinarius (8 asses), however previously - just like the peregrine money was considered to be merchandise (Merx) just like drachma and tetradrachma today.

How to determine the Seller?D. 19.1.6.1 (Pomponius, Commentary on Sabinus, book 9): If I have sold you a building for a certain sum and for your undertaking to repair another building of mine, I shall be able to sue on the grounds of contract of sale to enforce your doing the repairs; whereas, had the agreement been for repairs only, there could not be considered to be a contract of sale, as Neratius has also written.

PriceD. 18.1.7.1. (Ulpianus, Commentary on Sabinus, book 28): A purchase made in the following terms: “I will buy this of you at the same price you paid for it, or I will give the amount which I have in my chest,” is valid. For the price is not uncertain, as the amount paid at the sale can readily be ascertained, as more doubt exists as to the sum for which the article was purchased, than there does with reference to the property itself.

A caseTitius agreed with Lucius to buy from him the Cornelian Estate, which Lucius had inherited from his father for the price the Lucius’ Father had paid for it. Sometime later it turned out that Lucius’ Father in fact had not bought the land but received it in dowry from Lucius’ Step-mother. Can Titius sue Lucius for fulfilment of his contractual obligation?

Another case

Marcia has decided to buy a neckless belonging to Titia. The women have agreed that the price would be set by Aulus, an expert jeweller. What if Aulus decides that the fairest deal would be if Marcia gave to Titia an antique brooch of hers in lieu of the payment?

Merchandise

D. 18.1.8. Pomponius, On Sabinus, Book IX.Neither a purchase nor a sale can be held to take place without thing which can be sold; nevertheless, crops, and the yield of cattle can properly be made the object of purchase; and when the births have taken place, the sale is understood to be concluded. If, however, the vendor contrived that the crops should not be raised, or the cattle not be born, an action on purchase will lie.(1) A sale is, however, sometimes understood to be contracted without thing being the object of the same, as, for instance, where a purchase is made dependent upon chance; which occurs where fish or birds which are yet to be caught, or gifts to be thrown to the crowds, is bought. A purchase is also contracted even if nothing happens, because it relates to the expectation.

What kind condition is added to emptio rei speratae?Titius has agreed to buy the whole yield of Gaius’ orchard

for 1000. Is this sale conditional? What if the price has been set for 10 for each box of apples?

CONSENT

9. Ulpianus, On Sabinus, Book XXVIII.It is clear that the consent of both parties is necessary in all sales and purchases. But if they differ either as to the price, or as to something else connected with the sale, it will be incomplete. Therefore, if I thought that I was purchasing the Cornelian Field, and you thought that you were selling me the Sempronian Field, for the reason that we disagree as to the object of the transaction, the sale will be null and void. The same rule applies where I was under the impression that you had sold me Stichus, and you believed that you had sold me Pamphilus, who was absent; for when there is a disagreement with reference to the object, it is apparent that the sale is of no effect.(1) If we disagree with reference to the name, but there is no dispute as to the object, the transaction of purchase and sale is undoubtedly valid; for a mistake in the name is of no con- sequence, when the thing itself is agreed upon.

(2) Hence, the question arises, where no mistake is made as to the object itself, but there is one as to the substance of which it is composed; as, for instance, if vinegar is sold for wine, copper for gold, or lead for silver or something else which resembles silver, whether there is a purchase and sale. Marcellus says, in the Sixth Book of the Digest, that, in this case, there is a purchase and sale, because the object was agreed upon, although there was an error with reference to the matter of which it was composed. I am of the same opinion, so far as the wine and vinegar are concerned; for, as they are very nearly the same thing, that is to say, the same substance (oÈs€a), provided the wine becomes sour, but if it did not become sour but was so in the beginning, as for example in case of balsamic vinegar, it will be held that one thing has been sold for another. In the other instances, however, I think the sale was null, whenever a mistake was made with reference to the substance of which the articles were composed.

questions

When are two things identical?

What was Marcellus’ view? In What sense did Ulpian disagree?

The difference between appearance and substance

Compare the late classical, ‘middle’ views on Specification.

Consent: identity of the thing

D. 18.1.11.1 Ulpianus, On Sabinus, Book XXVIII. If I think I am buying a virgin slave, when she, in fact, is a woman, the purchase will be valid; for there is no mistake as to her sex. If, however, I should sell you a woman, and you thought that you were buying a boy, for the reason that there is a mistake in the sex, the purchase and sale will be void.

ConsentD. 18.1.14. Ulpianus, On Sabinus, Book XXVIII. But what shall we say where both parties are mistaken as to both the substance and the nature of the object of the sale; as, for instance, where I think I am selling gold, and you think that you are purchasing gold, when, in fact, the metal is brass; or where, for example, two co-heirs sell a bracelet which is said to be of gold, at a high price to another co-heir, and it is discovered that it is, for the most part, copper? It is held that this is a sale, because the bracelet contained some gold, for if the article is gilt, even though I think it to be gold, the sale will be valid, but where copper is sold for gold the sale will not be valid.

D. 18.1.41.1 Julianus, On Urseius Ferox, Book III. You sold me a table plated with silver, with the understanding that it was solid, neither of us being aware that it was not. The sale is void, and the money paid on account of it can be recovered.

Identity of the merchadise: another view

Risk: periculum

estemptoris

D. 18.6.8 pr. Paulus, On the Edict, Book XXXIII.It is essential to ascertain when the sale is concluded (perfecta), for we will then know who must bear the risk; as, on the sale being concluded, the risk will pass to the buyer. Sale is perfect if the identity, quality, and quantity of the things are determined, as well as the price of the same, and when the conditions are fulfilled.

Risk Borne by the Buyer

Is isn’t it bizarre? Why?

Who normally bears the risk for the loss of a thing?

Why could it be different in the case of sale?

Compare the pre-history of the contract of sale: MANCIPIATION

D. 18.6.3 Paulus, On Sabinus, Book V. The seller is liable for safe-keeping (custodia) to the same extent as those to whom a thing is lent for use, he must exercise more exact diligence than he observes in his own affairs.

Who normally is liable for safekeeping? Why?

Do you find any reasonable explanation why the owner of the things is liabile to keep it safe for the purchaser (the owner-to-be!).

A Case

Aulus has bought donkey Bucefalus from Caius agreeing to pay for him 100 denarii upon delivery. The parties decided that the animal should be delivered within a fortnight. What will happen if

A) the Donkey has been struck by a lighting bolt and dies? Can the seller claim the money?

B) the Donkey has been stolen by Septimus.

D. 19.1.54 pr Labeo, Plausible Views, Book II.Where a slave whom you have sold breaks a leg in doing something by your order, the risk is not yours, if you directed him to perform some act which he was accustomed to perform before the sale, and if you ordered him to do something which you would have ordered him to do, even if he had not been sold. Paulus: Absolutely not! for if the slave had used to perform some dangerous task before the sale, it will be held that you were to blame for this; as, for instance, if you had used to compel your slave to go down into a vault, or into a sewer. The same rule of law applies if you used to order him to do something which the wise and diligent head of a family would not order his slave to do. What if this should be made the ground of an exception? He can, nevertheless, direct the slave to perform some new task which he would not have ordered him to perform if he had not been sold; for example, if he should order him to go to the home of the purchaser, who lived in a distant place, for certainly this would not be at your risk. Therefore, the entire matter merely has reference to the fraud and negligence of the vendor.

Good Faith:The liability of the Seller

Good Faith: the originsCicero, on good conduct, 3.65-66: In the laws pertaining to the sale of real property it is established by jurisprudence that when a transfer of any real estate is made, all its defects shall be declared as far as they are known to the vendor. According to the laws of the Twelve Tables it used to be sufficient that such faults as had been expressly declared should be made good and that for any flaws which the vendor expressly denied, when questioned, he should be assessed double damages. A like penalty for failure to make such declaration also has now been secured by our jurisconsults: they have decided that any defect in a piece of real estate, if known to the vendor but not expressly stated, must be made good by him. For example, the augurs were proposing to take observations from the citadel and they ordered Tiberius Claudius Centumalus, who owned a house upon the Caelian Hill, to pull down such parts of the building as obstructed the augurs' view by reason of their height. Claudius at once advertised his block for sale, and Publius Calpurnius Lanarius bought it. The same notice was served also upon him. And so, when Calpurnius had pulled down those parts of the building and discovered that Claudius had advertised it for sale only after the augurs had ordered them to be pulled down, he summoned the former owner before a court of equity to decide "what indemnity the owner was under obligation 'in good faith' to pay and deliver to him." The verdict was pronounced by Marcus Cato, the father of our Cato (for as other men receive a distinguishing name from their fathers, so he who bestowed upon the world so bright a luminary must have his distinguishing name from his son); he, as I was saying, was presiding judge and pronounced the verdict that "since the augurs' mandate was known to the vendor at the time of making the transfer and since he had not made it known, he was bound to make good the purchaser's loss."

D. 18.1.43 pr. 43. Florentinus, Institutes, Book VIII. Whatever is stated, while sales are being made, in praise of the property, will not bind the vendor, if the truth be clearly apparent; as, for example, where the vendor says that a slave is handsome, or a house well constructed. If, however, he should allege that the slave is well educated, or a skilled artisan, he must make his statements good, for he sold the property for a higher price by reason of them.

I offer to sell you as slave whom I advertise as sound and handsome. In fact he is blind. What am I liable to deliver ?

Aedilician Edictactio redhibitoriaactio quanti minoris

Liability for Defectsmancipation consensual sale

legal defects

actio auctoritatis

originally none, unless there was a penal stipulation

later: becomes becomes tacit part of the contract

physical defects

none

apparent: nonelatent: deceitfully concealed,

ex emptolatent unconcealed:

ex edicto

D. 21.1.1 Ulpianus, On the Edict of the Curule Aediles, Book I. (1) The Aediles say: "Those who sell slaves should notify the purchasers if they have any diseases or defects, if they have the habit of running away, or wandering, or have not been released from liability for damage which they have committed. All of these things must be publicly stated at the time that the slaves are sold. If a slave should be sold in violation of this provision, or contrary to what has been said and promised at the time the sale took place, on account of which it may be held that the purchaser and all the parties interested should be indemnified, we will grant an action to compel the vendor to take back the said slave. "

Liability for Defectson the basis of aedilician Edict

a thing belonging to mancipia (slaves, mancipable animals)

purchase contracted at a market-place

defect expressively specified in the edict.

Noctes Atticae 2 On the difference between a disease and a defect, and the force of those terms in the aediles' edict; also whether eunuchs and barren women can be returned, and the various views as to that question. 1 The edict of the curule aediles in the section containing stipulations about the purchase of slaves, reads as follows "See to it that the sale ticket of each slave be so written that it can be known exactly what disease or defect each one has, which one is a runaway or a vagabond, or is still under condemnation for some offence." 2 Therefore the jurists of old raised the question of the proper meaning of a "diseased slave" and one that was "defective," and to what degree a disease differed from a defect. 3 Caelius Sabinus, in the book which he wrote On the Edict of the Curule Aediles, quotes Labeo, as defining a disease in these terms: "Disease is an unnatural condition of any body, which impairs its usefulness." 4 But he adds that disease affects sometimes the whole body and at other times a part of the body. That a disease of the whole body is, for example, consumption or fever, but of a part of the body anything like blindness or lameness. 5 "But," he continues, "one who stutters or stammers is defective rather than diseased, and a horse which bites or kicks has faults rather than a disease. But one who has a disease is also at the same time defective. However, the converse is not also true; for one may have defects and yet not be diseased. Therefore in the case of a man who is diseased," says he, "it will be just and fair to state to what extent 'the price will be less on account of that defect.' "

6 With regard to a eunuch in particular it has been inquired whether he would seem to have been sold contrary to the aediles' edict, if the purchaser did not know that he was a eunuch. 7 They say that Labeo ruled that he could be returned as diseased; 8 and that Labeo also wrote that if sows were sterile and had been sold, action could be brought on the basis of the edict of the aediles. 9 But in the case of a barren woman, if the barrenness were congenital they say that Trebatius gave a ruling opposed to that of Labeo. 10 For while Labeo thought that she could be returned as unsound, they quote Trebatius as declaring that no action could be taken on the basis of the edict, if the woman had been born barren. But if her health had failed, and in consequence such a defect had resulted that she could not conceive, in that case she appeared to be unsound and there was ground for returning her. 11 With regard to a short-sighted person too, one whom we call in Latin luscitiosus, there is disagreement; for some maintain that such a person should be returned in all cases, while others on the contrary hold that he can be returned only if that defect was the result of disease. 12 Servius indeed ruled that one who lacked a tooth could be returned, but Labeo said that such a defect was not sufficient ground for a return: "For," says he, "many men lack some one tooth, and most of them are no more diseased on that account, and it would be altogether absurd to say that men are not born sound, because infants come into the world unprovided with teeth."

D. 21.1.11. Paulus, On Sabinus, Book XI.

He who has lost a tooth is not diseased, for the greater portion of mankind have lost some teeth, and are not for that reason considered diseased, especially since we are born without teeth, and are not less sound on that account, until we have them; otherwise no old man would be considered healthy.

A Case

Marcus bought a slave from Titius. The slave was dully delivered. A week later he started running around and giving prophesies. Can Marcus sue for Defects? What if he only had a limp? what if he turned out to be a wanton?

Special Provisions:The versality of the contract

in favour of the seller: in diem addictio

lex commissoria

in favour of the seller & buyer: pactum de retroemendo

in favour of the buyer: emptio ad gustum

pactum displicentiae

In Diem AddictioPaulus sells to Quintus the Slave Stichus for 100. The parties agree that if Paulus finds a better offer until the 1st of January, he will be able to accept it. Stichus gets killed in a road-accident on the 31st of December. What is the legal standing of the Parties?

Cf. D. 18.2.2.2. Ulpianus, On Sabinus. Book XXVIII. Whenever land is sold for a certain period, it should be determined whether the sale is absolute, or under some condition, and inquiry should be made whether it is not undoubtedly conditional. It seems to me to be the better opinion that the interpretation of the contract depends upon what was the intention of the parties, for if it was understood that the sale should be annulled if more advantageous terms were offered, the purchase is absolute, and will be rescinded if the condition takes place. If, however, the intention was that the purchase should be perfected if better terms were not offered, the purchase will be a conditional one.

Pactum displicentiaeD. 19.5.20. Ulpian, On the Edict, Book XXXII. It is asked at Labeo’s "If I give you horses that I have for sale to be tried, under the condition that you will return them within three days if they do not please you, and you, being a performer in the circus, ride said horses and win the prize, and then refuse to buy them; can an action on sale be brought against you?" I think the better opinion is that an action should be brought for the construction of the contract, for it was agreed upon between us that you should take said horses for the purpose of trying them gratuitously, and not that you should enter them in a race. (1) The following question is asked at Mela’s: "If I let you have some mules for the purpose of trying them, with the understanding that if they please you you will buy them, but if they do not please you that you will pay me a certain sum for each day, and the mules are stolen by brigands within the time given for the trial; what must be made good, the price, or the rent?" Mela says that it makes a difference whether the purchase had already been concluded, or was to be concluded afterwards, for if the transaction was complete, suit can be brought for the price; but if not, it can only be brought for the rent. He does not mention, however, what actions are available, but I think that if the purchase was perfected, an action on sale will lie; but if this were not the case, that one can be brought like that granted against the circus-performer.