ENACTMENTS OF JUSTINIAN.
|~ Book XIX ~|
( S. P. Scott, The Civil Law, V, Cincinnati, 1932 ).
1. Ulpianus, On Sabinus, Book XXVIII.
If the property sold is not delivered, the purchaser will be entitled to an action to recover the amount of his interest in having this done. This interest sometimes is greater than the price of the property itself, where it is worth more to the buyer than the value of the property, or what it was purchased with.
(1) If the vendor knew that the property was subject to a servitude, and concealed the fact, he cannot avoid an action on purchase, provided the buyer was ignorant that this was the case; for everything which is done in violation of good faith is included in an action on purchase. We understand the vendor to be aware of the encumbrance, and to conceal it, not only where he does not notify the purchaser, but also where he denies that the said servitude is due, when questioned on the subject. If you suggest, as an instance, that the vendor said: "No servitude is due, but in case one should unexpectedly appear, I will not be liable," I think that he will be liable to an action on purchase, because the servitude was owing, and he knew it. If, however, the vendor took measures to prevent the purchaser from ascertaining that a servitude was due, I hold that he will be liable to an action on purchase. And, generally speaking, I should say that, if he acted fraudulently in concealing the existence of the servitude, he should be held liable, but not after he has consented to furnish the security. These principles are correct, when the purchaser did not know that the servitudes existed, because he is not considered to have concealed anything where the other party is aware of it, nor should he be informed who is not ignorant of the facts.
2. Paulus, On Sabinus, Book V.
Where the dimensions of a tract of land are mentioned at the time of the sale, and the amount is not delivered, an action on purchase will lie. Full possession of property is not understood to be transferred to a purchaser, if any legatee or trustee appointed for its preservation is in possession of the same, or any creditors hold it. The same must be said where an unborn child is in possession, for the term full possession also applies to this case.
3. Pomponius, On Sabinus, Book IX.
The delivery of possession which should be made by the vendor is of such a nature that if anyone can legally deprive the purchaser of it, possession will not be understood to have been delivered.
(1) Where the purchaser stipulates for full delivery of possession, and brings an action on the stipulation, the profits will not be included in said action; because when anyone stipulates for the delivery of land, it is understood that full possession of the same must be delivered, and the delivery of the crops is not embraced in such a stipulation, as nothing more should be included in it than the mere transfer of the land; but an action on purchase for the delivery of the crops will lie.
(2) If I purchase a pathway, a driveway for cattle, a general right of way, or the right to conduct water through your premises, there is no delivery of mere possession; and therefore you should furnish me security that nothing will be done by you to prevent the exercise of my right.
(3) When a vendor of wine is in default with reference to its delivery, he should be condemned to pay the highest price for said wine, either at the time of the sale, or when the damages were assessed in court, and also its greatest value either at the place where the sale was made, or where the suit was brought.
(4) When the purchaser is responsible for the default, the value of the wine must be estimated at the time when the action was brought, and with reference to the lowest price of the same at the place where this was done. Default is said to occur where the vendor is prevented by no difficulty from delivering the wine, especially if he has always been ready to deliver it. Moreover, it is not necessary to consider the price of the wine at the place where suit is brought, but where the wine is to be delivered, for if wine is sold at Brindisi, even though the contract may have been made elsewhere, it must be delivered at Brindisi.
4. Paulus, On Sabinus, Book V.
If you sell me a slave, being aware that he is a thief or has committed some damage, and I am ignorant of the fact, even though you may have promised me double damages, you will be liable to me in an action on purchase to the amount of what my interest would have been in knowing the character of the slave; because I cannot bring an action against you on the ground of the stipulation, before I myself have actually lost something.
(1) Where the measurement of a field is found to be less than had been stated, the vendor will be liable for the amount of the deficiency; because where the measurement falls short, the quality of ground which does not exist cannot be ascertained. And not only will the purchaser be entitled to an action where the measurement of a field falls short in its entirety, but also with reference to any portion of the same; as, for instance, if it were stated that there are so many jugera in a vineyard, or an olive-orchard, and the amount is found to be less. Therefore, in these instances, an estimate should be made with reference to the good quality of the soil.
5. The Same, On Sabinus, Book V.
When an heir is charged by will to sell property belonging to the estate, and he does so, an action can be brought against him either on sale or on account of the will, for all the accessories belonging to the property purchased.
(1) Where, however, he, erroneously believing that he is charged with the sale of the property, sells it; it must be held that an action on sale cannot be brought against him, since he can be barred by an exception on the ground of fraudulent intent; just as if he, laboring under a mistake, having promised that he will deliver property subject to such a charge, can bar the other party if he brings an action, by pleading an exception based on fraudulent intent. Pomponius even holds that he can bring an action for an indeterminate amount, in order to obtain his release.
6. Pomponius, On Sabinus, Book IX.
A vendor will be liable to an action on sale, even if he was not aware that the measurement of the field was less than had been represented.
(1) If I should sell you a house for a certain amount, under the condition that you will repair another house belonging to me, I can bring an action on sale to compel you to repair it. If, however, it had only been agreed upon that you should repair said house, a purchase and sale, as Neratius says, is not held to have been made.
(2) Moreover, if I sold you a vacant lot for a certain price, and delivered it, on the condition that after you had built a house you will re-convey half of the same to me; it is certain that I am entitled to an action on sale to compel you to build, and also to make the transfer to me after the building has been completed; for so long as any condition relative to the property sold is not complied with by you, it is established that I am entitled to an action on sale.
(3) If you purchase ground for a burial-place, and a house is built by the vendor near said place, before any interment is made there, you can have recourse to an action against him.
(4) If you sell me a vessel of any kind, and state that it is of a certain capacity, or of a certain weight, if it is deficient in either respect, I can bring an action on sale against you. But if you sell a vase to me, and guarantee it to be perfect, and it should prove not to be so, you must make good to me any loss which I may have sustained on that account; but if it is not understood that you guarantee it to be perfect, you will only be liable for fraud. Labeo is of a different opinion, and thinks it should only be held that the party must guarantee that the vase is perfect, where the contrary had not been agreed upon; and this opinion is correct. Minicius states that Sabinus gave it as his opinion that a similar guarantee should be understood to be made where casks were hired.
(5) If I sell you a right of way, you can only notify me to prove my title to the same where the land for which you wish to acquire the servitude is yours; for it would be unjust for me to be liable, if you could not acquire the servitude because you were not the owner of the adjoining land.
(6) If, however, I should sell you a tract of land, and state that a right of way was attached to the same; I will certainly be liable on account of the right of way, because I am bound as the vendor of both these rights of property.
(7) If a son under paternal control sells and delivers property to me, he will be liable, just as if he were the head of a household.
(8) If the vendor has committed any fraudulent act with reference to the property sold, the purchaser will be entitled to an action of purchase on that ground. For it is necessary to consider any fraud in the trial of the case, and whatever the vendor has promised to furnish he must deliver to the purchaser.
(9) If the vendor knowingly sells property which is encumbered, or which belongs to another, and it is set forth in the contract that he binds himself for nothing on this account, it is necessary to take into consideration his fraudulent conduct which ought always to be absent in the transaction of a sale which is one of good faith.
7. The Same, On Sabinus, Book X.
When you sold me a tract of land of which the usufruct was reserved, you stated that the said usufruct belonged to Titius, when, in fact, it remained in your hands. If you should bring an action to recover possession of said usufruct, I cannot have recourse to you as long as Titius is living; and he is not in such a situation that even if the usufruct was his, he would lose it, for then, (that is to say, if Titius should forfeit his civil rights, or die) I could have recourse to you as the vendor. The same rule of law applies if you should state that the usufruct belongs to Titius, while, in reality, it belongs to Seius.
8. Paulus, On Sabinus, Book V.
If I should deliver to you a field free of all encumbrance, when, in fact, I ought to have delivered it as subject to a servitude; I will have the right to bring an action for the recovery of an unascertained amount, in order to compel you to permit the servitude which is due to be imposed.
(1) If I transfer a field subject to a servitude, which I should transfer to you as free; you will be entitled to an action on purchase, in order to release said servitude, which you ought not to be burdened with.
9. Pomponius, On Sabinus, Book XX.
If he who purchased stones on a tract of land refuses to remove them, an action on sale can be brought against him to compel him to do so.
10. Ulpianus, On Sabinus, Book XLVI.
It is not unusual for one person to be liable to two obligations with reference to the same matter, at the same time; for when one who has a vendor bound becomes heir of another to whom the same vendor is liable, it is established that there are two concurrent rights of action united in the same person, one which he has as his own, and the other which is derived from the estate; and the appointed heir, if he wishes for his own convenience to avail himself of the two actions separately, must bring his own against the vendor before he enters on the estate, and then, after he has done so, bring the one which is derived from the latter. If he should first enter upon the estate, he can only bring one action, but he can do this in such a way as to obtain the greatest advantage from both contracts. On the other hand, if one vendor should become the heir to the other, it is clear that he must guarantee the purchaser doubly against eviction.
11. The Same, On the Edict, Book XXXII.
He who makes a purchase can avail himself of the action on purchase.
(1) In the first place, it must be remembered that, in a case of this kind, there should only be introduced what can properly be the subject of a guarantee, for since this is a bona fide action, there is nothing more consistent with good faith than that what was agreed upon between the contracting parties should be carried out. If, however, nothing was specially agreed upon, they will then be liable to one another for whatever naturally comes within the scope of the transaction.
(2) First, the vendor must transfer the property itself, that is to say, deliver it; and the ownership of said property will pass to the purchaser, if, in fact, it belonged to the vendor. If it did not belong to him, the vendor will only be bound in case of eviction, provided the price was paid, or security furnished for the same. The purchaser, however, can be compelled to pay the purchase-money to the vendor.
(3) Both Labeo and Sabinus hold that the restitution of the price in case of a defective title is also embraced in the transaction of purchase; and we approve their opinion.
(4) The vendor should also guarantee the soundness of animals and he who sells beasts of burden usually promises that they will eat and drink as they should do.
(5) Where anyone thinking that he is purchasing a female slave as a virgin, when she is a woman, and the vendor knowingly permits him to make this mistake; an action for the restitution of the price will, however, not lie in this instance, but an action can be brought on purchase for the rescinding of the contract, and when the price is refunded, the female slave should be returned.
(6) Where a person purchases wine, and pays a certain sum by way of earnest, and afterwards it is agreed that the purchase shall be void; Julianus says that an action on purchase can be brought for the recovery of the earnest, and that an equitable action on purchase will also lie for the purpose of annulling the sale. I propose the following question, namely: Suppose a ring is given by way of earnest, and that the sale is concluded, the price paid and the property delivered, but the ring is not returned; what proceeding should be instituted? Should it be a personal suit for recovery, where something has been given for a certain purpose and the purpose has been accomplished; or ought an action on sale to be brought? Julianus says that an action on sale will lie. It is certain that a personal action for recovery can be brought, for the ring is now in the hands of the vendor without any reason.
(7) Neratius says that the vendor will be liable to the purchaser, if he sells him a slave as not being in the habit of running away, even if he is not aware of the fact.
(8) Neratius says that the same rule applies, even if you should sell a slave belonging to another, and that you are obliged to guarantee him to be free from liability to prosecution for theft, or damages of any kind; and that it has generally been held by all authorities that an action on purchase will lie, to enable the buyer to be furnished security to hold the slave without interference, and, also, that possession may be delivered to him.
(9) He also says that if the vendor does not deliver the slave, judgment shall be rendered against him for the amount of the interest of the purchaser; and if he does not furnish security, judgment must be rendered against him for the largest amount for which a vendor can be liable.
(10) Neratius also says that, in all these instances, security must be given for the greatest amount that can be recovered; that is to say, in case of subsequent action, the damages must be assessed after deduction has been made of the amount of the security.
(11) He also very properly holds that if security is not furnished for one article, when it has been done for others, judgment must be rendered without any deduction.
(12) He also says in the Second Book of Opinions: "Where a purchaser has judgment rendered against him in a noxal action, he can only recover in an action on purchase the least amount for which he could be released." He likewise holds that, if an action on stipulation was brought by the purchaser, whether the latter has defended the noxal action or not, for the reason that it was evident that the slave had committed damage, he can, nevertheless, proceed by an action on stipulation, or by one on purchase.
(13) Neratius also says that a vendor should, in delivering the property, place the purchaser in such a position that he will have the advantage in a contest for its possession. Julianus, however, in the Fifteenth Book of the Digest, states that the property should not be held to be delivered, if the better title to possession is not enjoyed by the purchaser. Therefore, an action on purchase will lie unless this advantage is conferred.
(14) Cassius says that a party who has obtained an assessment of damages founded upon a double stipulation cannot recover anything on account of other property, with reference to which it is customary to provide security in the case of sales. Julianus thinks that where there is no double stipulation, an action on purchase should be brought.
(15) Finally, he says in the Tenth Book on Minicius, "That if anyone sells a slave under the condition that he will pay double damages within thirty days if the title is not good, and that he shall not, after that time, be liable for anything," and the purchaser does not require the amount to be paid within the designated period, the vendor will not be liable, provided he ignorantly sold a slave belonging to another; for, in this instance, he is only compelled to guarantee the purchaser that the title will not be disputed by himself or by his heirs. Where anyone knowingly sells a slave belonging to another, he holds that the vendor is not free from fraud and therefore will be liable to an action on purchase.
(16) I think that the opinion of Julianus with reference to pledges is also perfectly correct; for where the creditor lawfully sells a pledge, and afterwards the purchaser is deprived of it by someone with a better title, he will not be liable, and he cannot be sued in an action on purchase for the recovery of the price; for this point has been settled by several Imperial Constitutions. It is clear that the vendor must give a guarantee against fraud; for he expressly binds himself in this respect, but even though he does not do so, and sells the property, being aware that he had no claim on it, or that it did not belong to the party who pledged it to him; he will be liable to an action on purchase, because we have shown that he should be responsible for bad faith.
(17) If anyone should sell property, and should state at the time that its accessories will pass to the purchaser, everything which we have said with reference to the sale of property will apply in this instance, except that the vendor will not be liable for double damages in case of eviction, but will only be required to maintain the purchaser in possession, and this not only applies to himself but to all others.
(18) Where a person who makes a sale agrees to maintain the purchaser in possession, let us see to what extent he becomes liable. I think that it makes considerable difference whether he promises that the purchaser shall not be disturbed either by him or by persons descended from him, or whether he agrees that his possession shall not be disputed by anyone whomsoever; for where he makes the promise for himself he is not held to warrant the title against others. Hence, if the property is recovered by someone with a better title, or a stipulation is entered into, the vendor will not be liable under the stipulation; or, if one should not be made, he will not be liable on the ground of purchase. Julianus, however, states in the Fifteenth Book of the Digest that, even if the vendor plainly states that the purchaser shall have undisturbed possession, so far as he and his heirs are concerned; the defence can be made that the party is not liable on purchase for the amount of the interest of the buyer, but will only be liable for the refunding of the price. He also says that the same rule applies where it is clearly stated in the contract of sale that no warranty is given against eviction, and, that in case eviction takes place, the vendor will be liable for the price paid, but not for any indemnity, as contracts made in good faith do not permit an agreement to be entered into by which the purchaser may lose the property, and the vendor retain the price; unless, as he says, anyone should consent to abide by all the agreements above mentioned, just as is the case where the vendor receives the money and the merchandise does not come into the hands of the purchaser; as, for instance, where we buy a future cast of a net by a fisherman, or whatever game may be taken in snares laid by a hunter, or any birds caught by a fowler; for even if nothing is taken, the purchaser will, nevertheless, be required to pay the price. The contrary, however, must be held with reference to the agreements above mentioned, unless the vendor knowingly sold the property of another; for then, in accordance with the opinion of Julianus quoted above by us, it must be held that he will be liable to an action on purchase, for the reason that he committed a fraudulent act.
12. Celsus, Digest, Book XXVII.
If I purchase the cast of a fisherman's net, and the latter refuses to cast his net, the uncertainty of the result must be taken into account in assessing the damages. If the fisherman refuses to deliver to me the fish which he has caught, an estimate should be made of what he did catch.
13. Ulpianus, On the Edict, Book XXXII.
Julianus, in the Fifteenth Book, makes a distinction with reference to rendering a decision in an action on purchase between a person who knowingly sold the property, and one who ignorantly did so; for he says that anyone who sold a flock which is diseased, or a defective beam, and did so ignorantly, must make the claim good in an action on purchase, to the extent that the buyer would have paid less if he had been aware of said defects. If, however, he was aware of them, and kept silent, and deceived the purchaser, he will be obliged to make good all the loss which the purchaser sustained from said sale. Therefore, if a building should fall down on account of the defect in the price of the timber aforesaid, its entire value must be estimated in assessing damages; or if the flock should die through the contagion of the disease, the purchaser must be indemnified to the extent of the interest he had in the sale of the property in good condition.
(1) Moreover, where anyone sells a slave who is a thief, or one who has the habit of running away, and does this knowingly, he should indemnify the purchaser to the amount of his interest in not being deceived. If, however, he was ignorant of this when he sold him the slave, he will be liable with respect to a slave who has the habit of running away to the extent of the lesser amount which the purchaser would have paid if he had known that he had such a habit; but he will not be liable at all, where the slave is a thief. The reason for this distinction is, that a fugitive slave cannot be kept in custody, and the vendor is held liable, as it were, on the ground of eviction; but we can restrain a slave who is a thief.
(2) A great deal is included in the clause which we mentioned, namely: "To the amount of the interest of the purchaser in not being deceived," as, for instance, if he had solicited others to run away with him, or had stolen property at the time he fled.
(3) What would be the case, however, if the vendor was not aware that the slave was a thief, and had given the assurance that he was frugal and faithful, and sold him at a high price? Let us see if he would be liable to an action on purchase. I think that he would be liable, but suppose that he was ignorant of the character of the slave? He ought not to assert so positively something that he did not know. There is then a difference between this instance and that where the vendor knew the character of the slave, for he who knows should warn the purchaser that he is a thief, but in the other instance, he should not be so ready to make a rash statement.
(4) Where the vendor committed a fraudulent act in order to sell the property at a higher price; for example, if he lied concerning the skill of the slave, or with reference to his peculium, he will be liable in an action on purchase, for the additional amount which he was paid for the slave on the assumption that he had private property, or was skilled in some trade.
(5) On the other hand, Julianus also says that Terentius Victor died leaving his brother his heir, and that a steward abstracted from the property of the estate certain articles, documents, and slaves, and after these were taken away, the estate was easily made to appear to be of little value; and the steward persuaded the heir to transfer to him his rights in the same. Would he be liable to an action on sale? Julianus says that an action on sale will lie only for the extent to which the estate would have been more valuable if the said property had not been removed.
(6) Julianus also says that the vendor is usually responsible for fraud, and he explains this by means of the following case. Where a vendor knew that the land which he offered for sale was charged with legacies to several municipalities, and stated in the advertisement that it was only indebted to one municipality, but afterwards inserted in the contract of sale that, if any tributes, taxes, or anything by way of imposts, or for the repair of highways, should be due, the purchaser must make payment, perform said acts, and be responsible; the vendor will be liable to an action on purchase as having deceived the purchaser. This opinion is correct.
(7) But as it was, in fact, suggested that certain guardians had acted in this way who sold property belonging to a ward, he says that the question is whether the ward should be held liable for the fraud of his guardians? If, indeed, the said guardians sold the property, there is no doubt whatever that they are liable to an action on purchase. Where, however, the ward sold the property by their authority, he will only be liable for the amount by which he profited by the transaction, and judgment should be rendered against the guardians for the remainder, without reference to limitation of time, because liability for fraudulent acts of his guardians does not attach to the ward after he arrives at puberty.
(8) When the buyer brings an action on purchase, the price should be tendered by him; and therefore, even though he only tenders a portion of the price, an action on purchase will not lie, for the vendor has a right to retain the property which he sold, by way of pledge.
(9) Wherefore, the question arises where part of the price is paid and the property is delivered, but is afterwards lost through proof of a superior title, can the purchaser proceed by an action on purchase to recover the entire price of the property, or merely what he paid? I think the better opinion is that he can recover only what he paid; otherwise, he would be met by an exception on the ground of fraud.
(10) Where a field is sold on which the crops have already matured, it is settled that they must also be delivered to the purchaser; unless some other agreement has been made.
(11) If, however, the field was leased, the rent must be paid to the party who leased it. The same rule applies to urban estates, unless some express agreement is made to the contrary.
(12) Where, however, the vendor had acquired any rights of action for injury committed against the property; for instance, for the prevention of threatened injury, or for the care of rainwater, or under the Lex Aquilia, or an interdict against clandestine or violent possession, they must be assigned to the purchaser.
(13) Again, where any profit has been obtained from the labor of slaves, or from transportation by beasts of burden, or ships, it must be turned over to the purchaser, as well as any increase of the peculium of the slaves; but not, however, where any gain has been acquired by means of the property of the vendor.
(14) Titius sold a tract of land containing ninety jugera, and it was stated in the contract of sale that there were a hundred jugera in said tract, and before the measurement was taken ten jugera were added to it by alluvial deposit; I concur in the opinion of Neratius, who held that if the vendor was aware of the deficiency when he sold the land, an action on purchase could be brought against him, even though ten jugera had been added to the tract; because he was guilty of fraud which was not removed by the addition. If, however, he made the sale ignorantly, an action on purchase will not lie.
(15) If you sell me a tract of land belonging to another, and it afterwards becomes mine by a good title, I will, nevertheless, be entitled to an action on purchase against you.
(16) With respect to those things, however, which it is customary to furnish with the property purchased, I think that the vendor will not only be liable for fraud but also for negligence; as Celsus states in the Eighth Book of the Digest that, when it is agreed that the vendor shall collect any rent which is past due, and pay it to the purchaser, in case of his failure to do so, he will not only be liable for fraud but also for negligence.
(17) Celsus also says in the same book: You sold your share of a tract of land which you held in common with Titius, and before you delivered possession you were compelled to join issue in an action in partition. If the tract of land was entirely adjudged to your fellow-owner, you can recover from Titius on this account the amount which you are obliged to pay to the purchaser; but if the entire tract is adjudged to you, he says that you can transfer it all to the purchaser, in such a way, however, that he must pay to Titius the amount for which judgment has been rendered against you in this matter, and that you must provide security against eviction with reference to the part which you sold; but so far as the remainder is concerned, you will only be responsible for fraud. For, indeed, it is only just that the purchaser should be placed in the same position as if the action for partition had been brought against him. If, however, the judge divided the tract between you and Titius by certain boundaries, there is no doubt that you must deliver to the purchaser whatever has been adjudged to you.
(18) Where a vendor has given anything to a slave who was sold before his delivery took place, this also must be turned over to the purchaser, as well as any estates, and all legacies acquired by the slave; nor shall any distinction be made with reference to him by whom these things were left. Moreover, whatever has been obtained by the labors of the slave must be delivered to the purchaser, unless the day of delivery has been deferred by agreement, in order that the proceeds of the labors of the slave may belong to the vendor.
(19) The vendor is entitled to an action on sale to recover from the purchaser all that the latter is obliged to give him.
(20) All the matters hereinafter stated are included in this action; first, the price for which the property was sold, as well as the interest on the same after the day of delivery, for when the purchaser enjoys the property, it is perfectly just that he should pay interest on the purchase-money.
(21) We must understand delivery of possession to take place to mean even where the possession is precarious; for we should only consider whether the purchaser has the power to gather the crops.
(22) Again, the vendor can also recover any expenses incurred with reference to the property sold, by bringing an action on sale; for example, if something was expended on the buildings which were disposed of; as Labeo and Trebatius both say that an action on sale can be brought on this ground. The same rule applies where expense has been incurred for the cure of a sick slave before his delivery, or where anything has been expended in instruction, which it is probable that the purchaser would wish to be so expended. Labeo goes still further, and says, that where anything has been expended on the funeral of a dead slave, it must be recovered in an action on sale, provided the slave died without any blame attaching to the vendor.
(23) Moreover, if, when the property was sold, it was agreed that a solvent debtor should be furnished by the purchaser, the vendor can proceed by an action on sale to compel him to do this.
(24) If it was agreed between the purchaser and the vendor of certain lands, that, if the purchaser or his heir should sell said lands for a higher price than he had paid, that he would refund to the vendor half the amount of the excess; and the heir of the purchaser should sell said lands at a higher price, the vendor can, by means of an action on sale, recover the amount of his share of the excess for which the property had been sold.
(25) If an agent should make the sale and furnish security to the purchaser; the question arises whether an action should be granted in favor of the owner, or against him? Papinianus, in the Third Book of Opinions, thinks that an equitable action on purchase can be brought against the owner in the same way as an Institorian Action, provided the owner directed the property to be sold. Hence, on the other hand, it must be said that an equitable action on purchase can be brought by the owner.
(26) Papinianus says in the same place, that he gave it as his opinion that, where it had been agreed upon that if the price was not paid at the appointed time, double the amount should be paid to the vendor, such a provision seemed to have been added in violation of the constitution, because it exceeded the lawful interest; and he also stated that the case of a conditional rescission of a sale was different from this one; for, in that instance, illegal interest is not agreed upon, and the terms of the contract are not considered dishonorable.
(27) Where anyone, acting in collusion with my agent, makes a purchase from him, can he bring an action on purchase against me? I think he can, to the extent of compelling me either to abide by the purchase, or annul it.
(28) Where anyone takes advantage of another under the age of twenty-five, we will grant him an action on purchase, to the same extent as that which we mentioned in the former instance.
(29) Where anyone makes a purchase from a ward without the authority of his guardian, the contract is only valid on one side; for he who makes the purchase is liable to the ward, but he does not make the ward liable to him.
(30) Where a vendor reserves a lodging, for instance, that it shall be permitted for a tenant to reside in the house, or that a tenant, who was a farmer, shall have a right to the crops for a certain time; Servius thinks the better opinion to be that an action on sale will lie. Finally, Tubero says that, if the said tenant causes any damage, the buyer, by bringing an action on purchase, can compel the vendor to proceed against the tenant in an action on lease, and pay the purchaser whatever he recovers.
(31) Where a house is sold or devised, we are accustomed to state that everything is included in the house which is considered to be part of the same, or is used for the benefit of it; as, for instance, the stone edge of a well.
14. Pomponius, On Quintus Mucius, Book XXXI.
That is to say by means of which use of the well is obtained.
15. Ulpianus, On the Edict, Book XXXII.
Well-ropes and basins, projecting gutters, and also the pipes connected with the latter, although they may project a considerable distance beyond the building, belong to the latter as well as the gutters. Fish, however, which may be in a reservoir, do not belong either to the house or to the land;
16. Pomponius, On Quintus Mucius, Book XXXI.
Any more than the chickens or other animals on the premises.
17. Ulpianus, On the Edict, Book XXXII.
Nothing belongs to the land unless it is attached to the soil. It must not be forgotten that many things form part of a building which are not attached to the same, as for instance, locks, keys, and bolts. There are also many things buried in the earth which do not belong to the land, or to a farm-house, for example, wine-vats and presses, for since these are rather considered implements, they also are attached to the buildings.
(1) Moreover, it is settled that wine, and crops which have been gathered, do not belong to the house.
(2) Where a tract of land is sold or devised, the manure-heaps and straw belong to the purchaser or the legatee, the wood, however, belongs to the vendor or the heir; for the reason that the former do not constitute part of the land, even though they may have been collected for the benefit of the same. With reference to the manure-heaps, a distinction is made by Trebatius, who holds that if they have been prepared for the purpose of fertilizing the ground, they belong to the purchaser, but if for the purpose of sale, the vendor is entitled to them, unless some other agreement has been made; and that it makes no difference whether the manure remains in a stable or has been placed in a heap.
(3) Any paintings attached to the wall, as well as any marble encrusted upon the same, belong to the house.
(4) Nets about the columns and couches around the walls, as well as hangings of haircloth, are not parts of the house.
(5) Moreover, anything which has been prepared for a house but has not yet been finished, even though it may be placed in the building, is, nevertheless, not considered to be a part of it.
(6) Where, in a sale, reservation is made of everything which has been taken out, or cut down; sand, lime, and other things of this kind are held to have been taken out, and trees which have been felled, charcoal, and other similar articles are considered to have been cut. Gallus Aquilius, however, whose opinion is given by Mela, states very properly that a provision with reference to articles which have been taken out and cut down is included, without effect, in a contract of sale; because if they are not expressly sold, an action can be brought to compel them to be produced; as a vendor is not required to give security with reference to any material which has been cut, or for stone or sand, any more than he is for other things which are more valuable.
(7) Labeo states, as a general proposition, that whatever is in a building for its perpetual use belongs to it, but that which is only for temporary use does not; as, for instance, pipes which are only attached to it for a time, do not belong to the house, but if they are fastened to it permanently, they form a part of it.
(8) Reservoirs lined with lead, wells, and the covers of the latter which are placed upon the land, but are not attached to it, it is settled belong to the house.
(9) It is also settled that small images, columns, and figures through the mouths of which water is accustomed to flow, belong to the house.
(10) Anything which has been removed from a building with the intention of being replaced, forms a part of it; but whatever has been prepared to be placed upon it does not.
(11) Stakes which have been prepared for a vineyard do not form part of the land before they have been placed in position, but they do belong to it if they have been purchased with the understanding that they shall be so placed.
18. Javolenus, On Cassius, Book VII.
Granaries, which are usually made of boards, belong to the building, if their foundations are in the earth; but if they are above ground, they should be classed as movable property.
(1) Tiles which have not yet been placed upon buildings, although they have been brought there for that purpose, are included in the class of personal property. A different rule applies to those which have been removed with the intention of being replaced, for they are accessories to the house.
19. Gaius, On the Edict of the Praetor, Title "Publicans."
The ancients, in speaking of purchase and sale, made use of these terms without distinction.
20. The Same, On the Provincial Edict, Book XXI.
The same rule applies to cases of leasing and hiring.
21. Paulus, On the Edict, Book XXXIII.
Where a female slave is sold with her offspring, and she proves to be sterile, or more than fifty years of age, and the purchaser was ignorant of the fact, the vendor will be liable to an action on sale.
(1) Where the vendor of a tract of land knowingly refrains from mentioning any tax which is due upon the same, he will be liable to an action on purchase. But, if he did not give notice of it through ignorance, because, for instance, the land belonged to an estate, he will not be liable.
(2) Although we stated above that, while we may agree with reference to the object of a sale, but differ as to its quality, a sale will take place; still, the vendor should be liable for the amount of the interest the purchaser had in not being deceived, even if the vendor also is ignorant of the facts; as, for example, where tables are sold as being made of cedar-wood, when in fact they are not.
(3) When the vendor is to blame for not delivering the property, all the interest of the purchaser in its delivery, which merely has reference to the property itself, should be taken into consideration; where, for instance, he could have profited by the sale of wine, this need not be taken into account any more than if he had purchased wheat, and, because it had not been delivered, his slaves suffered from hunger; for the value of the wheat, and not that of the slaves about to die of hunger, was the object of the claim. Nor does the obligation become greater, where proceedings are instituted subsequently, even though the wine may have increased in value. This is reasonable, because if the wine had been delivered, the purchaser would have possession of it; but where this has not been done, the vendor is at all events obliged to deliver at present what he should have delivered long before.
(4) If I sell you a tract of land on condition that I can lease it from you for a certain sum, I will be entitled to an action on sale, because this transaction is, as it were, a part of the price.
(5) Even though I sold you a tract of land on condition that you would not sell it to anyone but myself, for this reason an action on sale will lie if you should sell it to another.
(6) A man sold a house and reserved for himself a lodging therein as long as he lived, or in consideration of the payment of ten aurei every year. The first year, the purchaser preferred to pay the ten aurei, the second year, he furnished the lodging. Trebatius says that he had the right to change his mind, and could comply with either one of the conditions every year, and as long as he was ready to do so there would be no cause of action.
22. Julianus, Digest, Book VII.
If the vendor makes a false statement as to the quality of the land, but not as to its amount, he will still be liable to the purchaser. For suppose that he alleged that there were fifty jugera of vineyard and fifty of meadow, and it was ascertained that there were less than this in the vineyard, and more in the meadow, there would, nevertheless, be one hundred jugera in all.
23. The Same, Digest, Book XIII.
If anyone should manumit a slave, after he had sold him together with his peculium, he will be liable not only for the peculium which the slave had at the time when he was manumitted, but also for what he acquired afterwards; and he must, in addition, furnish security to restore anything which might come into his hands from the estate of the freedman. Marcellus says in a note that the vendor is compelled, in an action on sale, to deliver whatever the purchaser would have obtained if the slave had not been manumitted. Therefore, nothing is included which he would have acquired if the slave had not been manumitted.
24. Julianus, Digest, Book XV.
Where a slave in whom you had an usufruct purchases a tract of land, and, before the purchase-money is paid, you lose your civil rights, even though you may have paid the price, you will not be entitled to an action on purchase, because of your loss of civil rights, but you can bring suit against the vendor to recover money which was not due. It makes no difference whether you, or the slave, have made payment out of the peculium belonging to you, where this is done before your loss of civil rights, for, in both instances, you will be entitled to an action on purchase.
(1) I purchased your slave from a thief in good faith, not knowing that he had been stolen, and the said slave bought another with the peculium belonging to you, and delivered him to me; Sabinus says that you can bring a personal action against me to recover the latter slave. If, however, I have lost anything by the transaction, which he negotiated, I can, on the other hand, bring an action on the ground of the peculium against you. Cassius states that this opinion of Sabinus is correct, with which I also agree.
(2) Where one slave, having sold another, furnishes a surety, the latter should guarantee the validity of the sale by which he will be bound to the same extent as if he were giving security for a freeman; as an action is granted to the purchaser against the master for the purpose of recovering everything which he could have recovered if the sale had been made by a freeman; but the master cannot have judgment rendered against him for an amount above the value of the peculium.
25. The Same, Digest, Book LIV.
When anyone purchases a vintage which is not yet harvested, and is forbidden by the vendor to gather the grapes, he can avail himself of an exception against him if suit is brought for the purchase-money, and not for the recovery of the property which was sold, but not delivered. But if, after delivery has been made, the purchaser is forbidden to press the grapes which have been gathered, or to remove the new wine, he can bring an action for production, or for injury committed, just as if he were forbidden to remove any other property whatsoever which belonged to him.
26. Alfenus Verus, Digest, Book II.
If anyone, when he sold a tract of land, stated that there were a hundred casks on the premises, which were accessory to the same; even though there was but one cask there, he will, nevertheless, be compelled to furnish a hundred casks to the purchaser.
27. Paulus, Epitomes of Alfenus, Book III.
Whatever the vendor states is an accessory must be delivered sound and in good condition; as, for instance, where he says that a certain number of casks are an accessory to the land, he must furnish them whole and not broken.
28. Julianus, On Urseius Ferox, Book III.
You sold me certain lands, and it was agreed between us that I should perform some act, and that, if I did not do so, I should be liable to a penalty. The opinion was given that the vendor can bring an action on sale before suing for the penalty under the stipulation, and if he should recover an amount equal to that fixed as a penalty, he will be barred by an exception on the ground of fraud, if he brings an action on the stipulation. If you should recover the penalty by an action on the stipulation, you will be prevented by operation of law from bringing an action on the sale, unless the amount of the judgment is less than the interest of the vendor in having the agreement executed.
29. The Same, On Minicius, Book IV.
Where property has been left to someone under a condition, and the latter, ignorant of the fact, buys it from the heir, the purchaser can recover the price by an action on purchase, because he has not possession of the property as derived from the legacy.
30. Africanus, Questions, Book VIII.
A slave that you purchased from me together with his peculium, committed a theft against me before he was delivered to you. Although the property which he stole has been destroyed, I will, nevertheless, have the right to retain its value out of the peculium, that is to say, the act of the slave diminishes the peculium to the extent to which he has become my debtor on account of his crime. For even if he should steal something from me after his delivery, or I should not be entitled to an action for recovery from the peculium on that ground, or I should be entitled to it to the extent that the peculium was increased by the addition of the stolen property; I would still have a right, in the proposed case, to retain the peculium, and I could bring a personal action for recovery on the ground that I had paid more than was due, if the entire risk attached to you. In accordance with this, it must be held that if the said slave had stolen any money from me, and you, being ignorant of the fact that it had been stolen, should take and use it as a part of the peculium; I will be entitled to an action for recovery against you on the ground that property belonging to me had come into your hands without any consideration.
(1) If you should knowingly sell me property belonging to another, while I was ignorant of the fact, Julianus holds that I can properly bring an action on purchase against you, even before I am deprived of the property on the ground of a better title, for an amount equal to my interest in having it become mine; for although, on the other hand, it is true that the vendor is only liable for the delivery of the property to the purchaser, and not to transfer the title to him, still, for the reason that he should guarantee that he is not committing fraud, he who knowingly sells the property of another to one who is ignorant that it is not his, is liable. This rule is especially applicable if he should manumit a slave, or sell property which was to be given in pledge.
31. Neratius, Parchments, Book III.
If the property which I am obliged to deliver in accordance with the contract of sale is taken from me by force, although I am required to be responsible for its safe-keeping, it is still more proper that I should only be required to transfer to the purchaser my rights of action for the recovery of said property; because its safe custody is of very little advantage where violence is employed. I should assign to you not only the rights of action which relate to profit, but also such as have reference to loss, so that you may obtain all the gain as well as be responsible for the expense.
(1) I should assign to you not only what I myself have acquired by means of the said property, but also what the purchaser would have acquired if the slave had been delivered to him at once.
(2) Two of us purchased the same property from a party who was not the owner, the purchase and sale were concluded without bad faith. and the property was delivered. Whether we both made the purchase from the same person, or from two different ones, he must be protected who first acquired his right; that is to say, the one to whom delivery was first made. Where one of two parties makes a purchase from the owner of the property, he must by all means be protected.
32. Ulpianus, On the Edict, Book XI.
If anyone should buy oil from me, and accept it after having employed false weights in order to deceive me, or the purchaser is taken advantage of by the vendor through the use of weights that are too light, Pomponius says that the vendor will be entitled to an action to compel the purchaser to pay the value of the excess; which is reasonable. Hence the buyer will also be entitled to an action on purchase for the purpose of obtaining satisfaction.
33. The Same, On the Edict, Book XXIII.
Where several articles are purchased for a single price, an action on purchase and sale can be brought with reference to each one of them.
34. The Same, On the Edict, Book XVIII.
Where a tract of land is sold, and fraud is committed with reference to the quality of the jugera, an action on purchase will lie.
35. The Same, On the Edict, Book LXX.
Where anyone purchases a tract of land presumed to be free from rights of way, and he is forbidden to pass through it, and is defeated in court; he will be entitled to an action on purchase. For although no stipulation with reference to eviction was made, because the judgment rendered with reference to the servitude is not final, so far as the property itself is concerned, still it must be said that an action on purchase will lie.
36. Paulus, On Plautius, Book VII.
The vendor of a house should enter into a stipulation relative to threatened injury before he conveys it, for the reason that he is obliged to exercise proper care and diligence before he delivers the possession of the property, and it is a part of said care and diligence to make such a stipulation, and therefore if he neglects to do so he will be liable to the purchaser.
37. The Same, On Plautius, Book XIV.
Since, as it is only just that a purchaser in good faith should not be injured by the fraud of another, so it is unjust that the vendor himself should profit by his own fraud.
38. Celsus, Digest, Book VIII.
Where the vendor of a slave stated that his peculium consisted of ten aurei, that he would not deprive him of any of it, and that if it included more, he would surrender it all; if it is more than that, he must give it all, unless the intention was that he should only deliver the ten aurei; if it is less than that, he must pay the ten, and give a slave who is possessed of a peculium of that amount.
(1) Where the purchaser is to blame for the non-delivery of the slave to himself, Sextus Aelius and Drusus have stated that he can be compelled by arbitration to indemnify the vendor for the maintenance of the slave; and this opinion appears to me to be perfectly just.
(2) Firmus asked of Proculus whether the pipes which conduct water from a leaden reservoir under ground into a brazen vessel built around the sides of a house are to be considered part of the latter? Or are they to be considered as personal property, united and stationary, which do not belong to the house? He answered that the intention of the parties should be taken into account. But what if neither the purchaser nor the vendor had paid any attention to the subject, as very frequently occurs in cases of this kind? Would it not seem to be better if we should hold that what is inserted and enclosed in a building forms a portion of the same?
39. Modestinus, Rules, Book V.
I ask if anyone should sell a tract of land under the condition that all should be considered to be sold which he possessed within certain boundaries, and the vendor, nevertheless, well knew that he did not possess a certain part of said land, and did not notify the purchaser of the fact; would he be liable to an action on sale, since this general rule ought not to apply to those portions of the land which the party who sold them knew did not belong to him, and yet did not except them? Otherwise, the purchaser would be taken advantage of, who if he had known this, would perhaps not have purchased the property at all; or would have bought it at a lower price if he had been notified with reference to its true amount; as this point has been settled by the ancient authorities, with respect to a person who made an exception, in the following terms, "Any servitudes that are due, shall remain due." For persons learned in the law gave it as their opinion that, if a vendor, knowing that servitudes were due to certain persons, did not notify the purchaser, he would be liable to an action on purchase; for this general exception does not refer to matters which the vendor was aware of, and which he could and should expressly except, but to things of which he was ignorant, and concerning which he could not notify the purchaser. Herennius Modestinus was of the opinion that if the vendor in the case stated did anything for the purpose of deceiving the purchaser, he could be sued in an action on purchase.
40. Pomponius, On Quintus Mucius, Book XXXI.
Quintus Mucius stated the following case. The owner of a tract of land sold the standing trees on the same, and, after having received the money for the property, refused to deliver it. The purchaser asked what course he should take, and feared that the said trees would not be considered to belong to him. Pomponius replied that the trees standing upon the land were not separate from the latter, and therefore the purchaser could not bring suit to recover the trees as the owner of the same, but he would be entitled to an action on purchase.
41. Papinianus, Opinions, Book III.
In a contract of sale, nothing was stated with reference to the annual payment due for an aqueduct passing under a house at Rome. The buyer having been deceived would be entitled to an action on purchase on this ground; and therefore, if he should be sued in an action on sale for the price, the unexpected burden imposed upon him should be taken into consideration.
42. Paulus, Questions, Book II.
If the vendor of two tracts of land should make statements with reference to the measurements of each, and then deliver both for a single price, and the full amount should be lacking to one of the tracts, but the other should contain more; for example, if he stated that one of them contained a hundred jugera, and the other two hundred, it would be of no advantage to him if one of them was found to contain two hundred, and the other fell short ten. A decision on this point is given by Labeo. But can it be doubted that an exception on the ground of bad faith will be available by the vendor? For instance, if a very small portion of woodland was lacking, and the tract included a larger extent of vineyard than had been promised, would not he who availed himself of his perpetual right be guilty of fraud? For in the case where the amount of land is found to be greater than had otherwise been stated, this is not for the benefit of the vendor, but for that of the purchaser; and the vendor is liable whenever the measurement is ascertained to be short. Let us see, however, whether the vendor has no cause of complaint with reference to the same land, where the vineyard is found to include more than the meadow, and the measurement of the whole is correct. The same question may arise in the case of two tracts of land, as where anyone sells two slaves conditionally entitled to their freedom, for one price, and says that one was ordered to pay ten aurei when he should have paid fifteen; for he will be liable to an action on sale, even if the purchaser should have received twenty aurei from the two. It is more just, however, in all the above mentioned cases, for the profit to be set off against the loss, and if anything is lacking to the purchaser, either in the measurement or the quality of the land, he should be indemnified for the same.
43. The Same, Questions, Book V.
When Titius died, he left Stichus, Pamphilus, and Arescusa in trust to Seia, and directed that all of them should be given their freedom after the lapse of a year. As the legatee was unwilling to accept the trust, and still could not release the heir from the claim which she had against him, the heir sold the said slaves to Sempronius, without mentioning that their freedom had been bequeathed by the terms of the trust. The purchaser, after having made use of the labor of the aforesaid slaves for several years, manumitted Arescusa; and when the other slaves, having ascertained the intentions of the deceased, demanded their freedom granted under the trust, and brought the heir before the Praetor, the slaves were manumitted by the former on the order of the Praetor. Arescusa answered that she was unwilling to have the purchaser for her patron. When proceedings were instituted by the purchaser in an action on purchase to recover from the vendor the price paid for the slaves including Arescusa; an opinion of Domitius Ulpianus was read, in which it was held that if Arescusa declined to have the purchaser for her patron, her act was justified by a rescript of the Imperial Constitutions, but that the purchaser, after her manumission, could not recover anything from the vendor. I remember that Julianus held, with reference to this opinion, that the right to an action on purchase continued to exist even after the manumission, and I ask which opinion is correct? In this proceeding it was petitioned in the name of the purchaser, that the expenses which he had incurred in the instruction of one of the slaves should be refunded to him. I also ask, since Arescusa refused to have the purchaser as her patron, by whose act she was liberated, and whether she could have either the legatee who did not liberate her, or the heir as her patron, for the other two slaves were manumitted by the heir. I answered that I have always approved the opinion of Julianus, who thought that the right of action was not extinguished in this way by manumission. But with reference to the expenses which the purchaser incurred in the instruction of the slave, there is a point to be considered, for I think that an action on purchase will be sufficient in a case of this kind, since not only is the price involved, but all the interest of the purchaser in not being deprived of the slave by eviction. It is clear that if the expense incurred in the case you suggest exceeds the price to such an extent that the vendor would not have thought that it would amount to so much; as, for instance, if we suppose that the slave was purchased for a small sum and instructed as a charioteer or an actor, and the owner was afterwards deprived of him by eviction, it would seem to be unjust for the vendor to be liable for a larger amount.
44. Africanus, Questions, Book VIII.
And suppose that the vendor was only in moderate circumstances, he cannot be compelled to pay more than double the price.
45. Paulus, Questions, Book V.
Africanus states that Julianus held the same opinion, and this is just, as the amount to be paid will be diminished if the value of the slave has depreciated while in the hands of the purchaser, when he is recovered by a better title.
(1) The following is held to be more convenient, namely, if you should sell me a vacant lot belonging to another, and I should build upon it, and the owner of the property should recover it by eviction; for since the latter, in bringing an action to recover said property, can be barred by an exception on the ground of bad faith unless he pays the cost of the buildings, the better opinion is that the vendor is not responsible for this. It must also be held in the case of a slave that, if he is recovered under a better title, while he is still in slavery and not after he has been set free, the owner must make good any outlay and expenses incurred on his account. If the buyer is not in possession of the building or the slave, he will be entitled to an action on purchase. In all these instances, if anyone knowingly sells property belonging to another he will, unquestionably, be liable.
(2) There still remains the third point, that is to say, who shall be the patron of the freedwoman Arescusa, who refused to accept the purchaser as such? It is held, and not without reason, that she ought to become the freedwoman of the person by whom she is sold, that is to say, of the heir, because he himself is liable to an action on purchase. This only applies where Arescusa does not select the purchaser as her patron, for if she does, she will remain his freedwoman, and he will not be entitled to an action on purchase, because he has no longer any interest since he has her as his freedwoman.
46. The Same, Questions, Book XXIV.
Where anyone sells property belonging to another, and, in the meantime, becomes the heir to the owner of said property, he will be compelled to conclude the sale.
47. The Same, Opinions, Book VI.
Lucius Titius, having received money in payment for materials sold under a fixed penalty, with the understanding that if they were not delivered in good condition within a designated time, the penalty could be collected, died, after a part of the materials had been delivered. Then, since the testator has become liable for the penalty, and his heir will not produce the remaining materials, can he be sued for the penalty and interest, especially when the purchaser had borrowed the money at a very high rate of interest? Paulus answered that, under the contract as stated, the heir of the vendor could be sued for the penalty, and that, also, in an action on purchase, the court would take into consideration the interest from the day when the vendor began to be in default.
48. Scaevola, Opinions, Book II.
Titius, the heir of Sempronius, sold a tract of land to Septicius as follows: "I sell you the field which belonged to Sempronius, together with any rights enjoyed by Sempronius in the same, for so much money." He delivered the mere possession of said land, but did not point out the boundaries of the same. The question arose, whether he could be compelled in an action on purchase to show by documents belonging to the estate what rights the deceased had in said land, and to point out its boundaries? I answered that everything should be done under this written contract, which the parties understood to have been intended. If this cannot be ascertained, the vendor must produce the documents relating to the land, and point out its boundaries, for this is consistent with the good faith of the contract.
49. Hermogenianus, Epitomes of Law, Book II.
Where anyone, for the purpose of deceiving the purchaser, produces a false tenant who is in collusion with him, he will be liable to an action on purchase; nor can he defend himself by stating that he assumes the responsibility for the tenant, and the rent for five years, if, by this means, he contrived more readily to conceal the fraud.
(1) Where the principal of the price has been paid, although this has been done after default, interest on it cannot be claimed, because it is not included in the obligation, but depends upon the decision of the Court.
50. Labeo, Later Epitomes by Javolenus, Book IV.
Good faith does not tolerate that, where a buyer, through the indulgence of some law, is not compelled to pay the price of the property purchased before it is delivered to him, the vendor shall be compelled to deliver it, and relinquish possession of the same. Where, however, possession has already been delivered, the result will be that the vendor will lose the property; for example, where the purchaser opposes the vendor, who claims the property, with an exception on the ground of sale and delivery; and hence the case will be the same as if the claimant had not either sold or delivered the property to him.
51. The Same, Later Epitomes by Javolenus, Book V.
Where the purchaser and the vendor are both in default with reference to the delivery and acceptance, the result will be the same as if the purchaser alone was responsible. For the vendor cannot be held to be in default with reference to the purchaser, when the latter himself is also guilty of delay.
(1) Where you purchased a tract of land under the condition that you would pay the purchase-money on the Kalends of July; even though, when the time had expired, the vendor was at fault for the money not being paid to him, and afterwards you were to blame for not paying it; I stated that the vendor could avail himself of the condition stated in the contract, as against you; because in making the sale it was the intention of the parties that if the purchaser was in default for non-payment of the money, he would be liable for the penalty mentioned in the contract. I think this opinion to be correct, unless the vendor was guilty of fraud in the transaction.
52. Scaevola, Digest, Book VII.
A creditor held a tract of land which was encumbered to him, and also had in his possession receipts for taxes previously paid by the debtor which had been deposited with him; and he sold the land to Maevius on the condition that the purchaser should pay any taxes which might become due. The said land was sold by the collector of taxes of the district in which it was situated, on account of the taxes that had already been paid; the same Maevius bought it and paid the amount. The question arose whether the buyer could sue the vendor in an action on purchase, or in any other action, and compel him to surrender the receipts for the payments above mentioned. The answer was that the buyer could proceed, by an action on purchase, to compel the documents in question to be produced.
(1) A father having given to his daughter, by way of dowry, a certain tract of land whose value had been appraised, the said land was found to be encumbered to a creditor. The question arose whether a son, who had accepted the estate of his father, would be liable to an action on purchase to obtain a release from the creditor, and furnish the property free of encumbrance to the husband, as the daughter, content with her dowry, had declined to accept her share of the estate. The answer was that he would be liable.
(2) It was agreed between the vendor and the purchaser of an office in the army, that the salary due to the former should be paid to the purchaser. The question arose as to the amount which the purchaser should demand, and what the vendor should pay to the purchaser in a transaction of this kind? The answer was that the vendor should assign the extraordinary right of action which he held on this account.
(3) A party who had a house on the sea-shore built a wall so that the shore, as well as the house, was enclosed by it, and then sold the house to Gaius Seius. I ask whether the shore which was enclosed with the house by the vendor also belonged to the buyer by the right of purchase? The answer was that the house would be sold in the same condition in which it was before the sale was concluded.
53. Labeo, Probabilities, Book I.
Where it is stated in a contract that the rent of a house shall belong to the purchaser; whatever the said house is rented for should be paid to the purchaser. Paulus says that this is not altogether true, for if you rent an entire house to one tenant for a certain sum, and the tenant sublets it for a larger amount, and, in selling the house, you state that the rent is to be paid to the purchaser, that only is included which the tenant owes you for the entire house.
(1) If you sold a tract of land in which you have a burial-place and do not expressly except it, you will have no security on this account. Paulus says that this opinion is, by no means, just, provided a public highway runs by the side of the burial-place.
(2) If, where a house is sold, lodgings in the same are reserved for the occupants under the terms of the sale, such a reservation is properly made with reference to all the occupants of said house, with the exception of the owner. Paulus, however, says that if you had given free lodgings to anyone in the house which you sold, and you should make the reservation in such a way that the occupants, or any one of them, will have rent to pay at a certain time, you will not properly provide for this; for it is necessary to make an express reservation with reference to them. Therefore, the purchaser can, with impunity, prevent the occupants from lodging in the house.
54. The Same, Probabilities, 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 says that this opinion is by no means correct; for if the slave had been accustomed 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 been accustomed to compel your slave to go down into a vault, or into a sewer. The same rule of law applies if you were accustomed 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.
(1) Where it is stated in the contract that there were eighty casks buried in the ground, which were accessory to the land, and there are more than this; the vendor must give to the purchaser the above mentioned number, making his selection from all the others as he wishes, provided he delivers such as are sound. Where there are only eighty of them, they belong to the purchaser, just as they are; and the vendor will not be obliged to pay him anything for those that are not perfect.
55. Pomponius, Epistles, Book X.
a slave who has been purchased or promised is in the power of the
enemy, Octavenus thinks that the better opinion is that the sale and
stipulation are valid, because it is a transaction entered into between
the purchaser and the vendor; for the difficulty exists rather in
furnishing what was agreed upon, than in the nature of the transaction,
for even if the delivery of the slave should be ordered by the judge,
it should be deferred until it can take place.
Leasing and hiring is a natural transaction common to all nations, and it is contracted not by words but by consent, just like purchase and sale.
2. Gaius, Daily Events, Book II.
Leasing and hiring resembles purchase and sale, and is established by the same rules of law. For as purchase and sale is contracted by an agreement as to the price to be paid, so also is leasing and hiring understood to be contracted where an agreement is made as to the rent.
(1) Purchase and sale is held to bear such a resemblance to leasing and hiring that, in some instances, it is customary to make the inquiry as to whether the transaction is one of purchase and sale, or one of leasing and hiring; for example, if I have a contract with a goldsmith to make me some rings of a certain weight, and of a designated form, and he agrees to make them for three hundred aurei; is this a purchase and sale, or a leasing and hiring? It is held that it is only a single transaction, and is rather a purchase and sale than a leasing and hiring. If, however, I furnish him the gold, and compensation for his work is agreed upon, there is no doubt that this is a leasing and hiring.
3. Pomponius, On Sabinus, Book IX.
Where a tract of land is leased, and the tenant receives the implements for its cultivation after they have been appraised, Proculus says that the intention of the parties is that the tenant should have the implements, as being purchased; just as when any property, after having been appraised, is given by way of dowry.
4. The Same, On Sabinus, Book XVI.
A lease, or a precarious tenancy is made in the following terms, namely: "As long as he who leases or gives the property may be willing," and it is terminated by the death of the owner of the property.
5. Ulpianus, On the Edict, Book XXVIII.
If I rent you a lodging and afterwards remit the rent, an action on leasing and hiring will lie.
6. Gaius, On the Provincial Edict, Book X.
Where anyone has rented property, he is not required to surrender what he recovered on account of said property in an action for theft.
7. Paulus, On the Edict, Book XXXII.
If I rent you a house belonging to another for fifty aurei, and you rent the same house to Titius for sixty, and Titius is forbidden by the owner to occupy it; it is established that you can bring an action on hiring against me, to recover sixty aurei, because you yourself are liable to Titius for sixty.
8. Tryphoninus, Disputations, Book IX.
Let us see whether neither sixty nor fifty aurei should be paid, but an amount equal to the interest the tenant has in the enjoyment of the property leased, so that the second lessor can only recover the sum that he owes to the party who rented the property from him; and since the profit of the lease is to be computed according to the amount of the higher rent, the result is that the sum recovered should be greater. The first lessor will still have a right to claim the fifty aurei which he would have collected from the first tenant, if the owner had not forbidden the last tenant to occupy the house. This is our practice.
9. Ulpianus, On the Edict, Book XXXII.
If anyone rents me a house or a tract of land which has been purchased in good faith, and he is evicted from the same without fraud or negligence on his part; Pomponius says that the lessor will, nevertheless, be liable to an action on lease, in order that the lessee may be enabled to enjoy the property rented to him. It is clear that if the owner will not allow him to occupy the premises, and the lessor is ready to furnish him another house which is just as convenient, he says that it would be perfectly just for the lessor to be released from his obligation.
(1) What Marcellus stated in the Sixth Book of the Digest may be added, namely: "If an usufructuary rents a tract of land subject to an usufruct, for five years, and dies; his heir will not be liable to permit him to enjoy the same, any more than a lessor would be liable to a lessee after a house has been destroyed by fire. But whether the lessee will be liable to an action on the lease to collect the rent during the time he was in the enjoyment of said property, is a question asked by Marcellus; just as he would have been compelled to pay, if he had leased the services of a slave subject to an usufruct, or a lodging. He states that the better opinion is that he will be liable; and this is perfectly just. He also asks if the lessee should incur any expense on account of the land through the expectation of enjoying it for five years, whether he can recover the same. He says that he cannot do so, because he should have foreseen that this would take place. But what if the usufructuary had not leased the land to him as such, but as the owner of the same? He will certainly be liable, for he deceived the lessee; and this the Emperors Antoninus and Severus stated in a Rescript. They also stated that, where the house has been destroyed by fire, the rent must be paid for the time that the building stood.
(2) Julianus says in the Fifteenth Book of the Digest, that, where anyone leases land on the condition that if anything should happen to it through the exertion of irresistible force, he will be responsible for the same; he must abide by the contract.
(3) Where, in the terms of a lease of land, the lessee was notified to be careful about fire, and some accident caused a conflagration, he will not be compelled to make good the loss. But where damage is caused by the negligence of the lessee, for which he was responsible, he will be liable.
(4) The Emperor Antoninus, together with his father, stated in a Rescript with reference to a flock of goats, which a party had hired, and which had been stolen from him, "If it can be proved that the robbers drove away the goats without any fraud on your part, you will not be compelled to be responsible for the occurrence in an action on lease, and you can recover any rent for the time following the theft as being money paid which was not due."
(5) Celsus also states in the Eighth Book of the Digest that want of skill should be classed with negligence. Where a party rents calves to be fed, or cloth to be repaired, or an article to be polished, he must be responsible for negligence, and whatever fault he commits through want of skill is negligence, because he rents the property in the character of an artisan.
(6) If you lease me a house belonging to another, which has been bequeathed or given to me, I am not liable to you for the rent in an action on lease. Let us see, however, whether anything is due for the time which has elapsed before the bequest was made. I think that the rent should be paid for that time.
10. Julianus, On Urseius Ferox, Book III.
And I can properly bring an action on hiring, or for the purpose of compelling you to release me from the contract.
11. Ulpianus, On the Edict, Book XXXII.
Let us see whether the tenant is liable for the negligence of his slave, and of those to whom he has sublet the property, and also to what extent he is responsible; shall he surrender the slave by way of reparation, or will he be liable in his own name; and, with reference to those to whom he has sublet the premises, must he only assign to the owner any rights of action which he may have against them, or will he be accountable just as if the negligence was his own? It is my opinion that he is responsible in his own name for the negligence of his sub-tenants, even though nothing had been agreed upon with reference to this: provided, however, he committed negligence in subletting the property to such persons, either his own slaves or tenants. Pomponius approves this in the Sixty-third Book On the Edict.
(1) If it was agreed upon at the time of the lease that the tenant could not have fire, and he, nevertheless, has it, he will be liable, even though an accident may cause a conflagration, because he had no right to have it. The rule is different where he is permitted to have fire which will not cause injury, for, in this instance, he is allowed to have it provided it causes no damage.
(2) The lessee must also be careful not to injure the property, or any right attaching to the same, nor to permit this to be done.
(3) Where a party hired his services for the transportation of wine from Campania, and then, a controversy having arisen between himself and another, he sealed the casks with his own seal and that of the other person, and placed the wine in a warehouse; he will be liable to an action on hiring to return the possession of the wine to his employer, without any dispute, unless the employee was guilty of negligence.
(4) It was agreed upon between a lessor and a lessee that hay should not be placed in a building in a city. It was, nevertheless, placed there, and a slave, having afterwards set fire to the hay, killed himself. Labeo says that the lessee is liable to an action, because he himself was the cause of the disaster, by bringing in the hay in violation of the terms of the lease.
12. Hermogenianus, Epitomes of Law, Book II.
Moreover, even if some stranger had kindled the fire, the lessee would be liable for the damage caused.
13. Ulpianus, On the Edict, Book XXXII.
The question is also asked, where the driver of a vehicle, while trying to pass others, overturns one, and injures or kills a slave, what course must be pursued? I think that an action on hiring will lie against him, for he should have been more careful. Moreover, a praetorian action under the Lex Aquilia will be granted him.
(1) If the master of a ship should receive a cargo to be taken to Minturn?, and, as his ship was unable to ascend the river, he should transfer the merchandise to another which was lost at the mouth of the river; in this instance, the first master will be liable. Labeo says that if he was not guilty of negligence, he will not be liable; but if he acted against the consent of the owner, or transferred the cargo at a time when he should not have done so, or loaded it in a vessel which was less seaworthy than his own; an action on hiring can be brought against him.
(2) Where the master of a ship takes it into a river without a pilot, and, a storm having arisen, he cannot manage the ship and loses it; the owners of the cargo will be entitled to an action on hiring against him.
(3) If anyone leases a slave for the purpose of instructing him, and takes him to a foreign country where he is either captured by the enemy, or loses his life, it is held that an action on hiring will lie, provided he did not hire him for the purpose of taking him into a foreign country.
(4) Julianus also says in the Eighty-sixth Book of the Digest that if a shoemaker, being dissatisfied with a boy employed by him should strike him on the neck with a last so hard as to destroy his eye, an action on hiring can be brought by his father; for although masters are permitted to inflict light punishment, still, this is immoderate. We have stated above that an action under the Lex Aquilia will also lie. Julianus denies that an action on injury can be brought, because the party did not commit the act for the purpose of causing injury, but in the course of instruction.
(5) Where a precious stone has been given to an artisan for the purpose of being set or engraved, and it is broken; if this was caused by any defect in the stone, an action on hiring will not lie, but where it occurred through want of skill, it can be brought. It must be added to this opinion, "unless the workman assumed the risk," for then, even if the accident was caused by a defect, an action on hiring will lie.
(6) If a fuller should receive clothing to be cleaned, and mice gnaw it, he will be liable to an action on hiring, because he ought to have provided against this. If a fuller changes cloaks, and gives one to one person which belongs to another, he will be liable to an action on hiring, even though he did so ignorantly.
(7) A tenant left the premises on the approach of an army, and the soldiers afterwards removed the windows and other things from the house; if the tenant did not notify the owner when he left, he will be liable to an action on hiring. Labeo says that if he could have resisted, and did not do so, he will be liable; and this opinion is true. But if he could not notify the landlord, I do not think he would be liable.
(8) Where anyone rents measures, and a magistrate orders them to be destroyed; if they were false, Sabinus makes a distinction where the lessee was aware of the fact, and where he was not. If he knew that they were false, an action on hiring will lie, otherwise not. If the measures were correct, he will only be liable where he was to blame for the act of the Aedile. This opinion is also held by Labeo and Mela.
(9) Two lessees can be held liable for the entire amount involved.
(10) Where it is included in the contract for the hire of labor, that if the article is not completed by a certain time it may be given to someone else, the first lessee will not be liable to an action on hiring unless the article is given to someone else under the same contract; nor can this be done until the day fixed for its completion shall have passed.
(11) Where, after the term of his lease has elapsed, the tenant remains on the premises, not only is a renewal of the lease held to have been made, but also any pledges which have been given as security are still considered to be encumbered. This, however, is only true where another party had not encumbered the property at the time of the original lease, otherwise his fresh consent will be necessary. The same rule applies where lands have been leased to the government. What we have stated, namely, that the tenant is held to have made a new lease through the silence of both parties, must be understood to mean that where they were silent, the lease is renewed for a year, but this does not apply to ensuing years, even though the term of the lease should, in the beginning, have been five years. Moreover, if no contrary agreement was made during the second year after the end of the term of five years, the lease will be considered to be renewed for that year, as the parties are held to have consented for the year during which they kept silent. This rule must also be observed afterwards for every ensuing year. Another rule is applicable to urban estates, however, for a tenant is liable for all the time he occupies the premises, unless a certain term fixing the duration of the lease is mentioned in the written instrument.
14. The Same, On the Edict, Book LXXI.
Where anyone rents land for a certain time, he remains a tenant even after it has expired; for it is understood that where an owner allows a tenant to remain on the land he leases it to him again. A contract of this kind does not require either words, or writing to establish it, but it becomes valid by mere consent. Therefore, if the owner of the property should become insane or die in the meantime, Marcellus states that it cannot be held that the lease is renewed; and this is correct.
15. The Same, On the Edict, Book XXXII.
The action on hiring is granted to the lessee.
(1) Moreover, the action will, to a certain extent, lie in the following cases; for instance, where the party is unable to enjoy the property which he has leased, perhaps because possession of an entire field or of a portion of the same has not been given him; or a house, or a stable, or the place where flocks must be kept, has not been repaired; or where something is not furnished which was agreed upon under the terms of the lease; an action on hiring will lie.
(2) Let us consider whether the lessor is obliged to do anything for the lessee, where bad weather has caused the latter loss. Servius says that the lessor must indemnify the lessee for any violence which could not be resisted; as, for instance, that caused by the overflow of rivers, by birds of different kinds, or by any similar accident, or where an invasion of enemies takes place. If any defect should arise with reference to the property itself, the loss must be borne by the tenant; as, for example, where wine becomes sour, or the crops are ruined by weeds. If, however, an earthquake occurs, and destroys all the crops, the loss will not be sustained by the tenant, for he cannot be compelled to pay the rent of land in addition to the loss of the seed. Where, however, the olive crop has been spoiled by fire, or this has taken place through the unusual heat of the sun, the owner of the land must bear the loss; but if nothing extraordinary happens, the tenant will be responsible for it. The same must be said where an army that was passing by removed anything in mere wantonness. But if a field should be so ruined by an earthquake that nothing remains of it, the loss must be borne by the owner, for he is obliged to furnish the land to the lessee in such a condition that he can enjoy it.
(3) Where a tenant alleged that a fire had taken place on the land, and asked that the rent be remitted; it was stated in a Rescript, "If you cultivated the land, you are entitled to reasonable relief on account of the occurrence of an unexpected fire."
(4) Papinianus says in the Fourth Book of Opinions that where a landlord has remitted the rent to a tenant for one year on account of sterility, and there was a great yield during the following year, the landlord has lost nothing on account of remitting the rent, and he can even claim the rent for the year which he remitted. He gave the same opinion with reference to the loss under a perpetual lease. If, however, the landlord remitted the rent for a year on account of sterility, as a gift, the same rule will apply, as this is rather an agreement than a donation. But what if he remitted the rent because of sterility during the last year of the lease? It is held to be more correct that, if the preceding years were fruitful, and the landlord was aware of the fact, he should not call the tenant to account for the one which was sterile.
(5) It is stated in a Rescript of the Divine Antoninus that no attention should be paid to a tenant who complains of the smallness of the crops. It is also stated in another rescript, "You are claiming something unusual, when you ask that the rent shall be remitted to you on account of the age of the vines."
(6) Again, where a certain individual, in the case of the loss of a vessel, demanded what he had paid for transportation on the ground that it was a loan; it was stated in a Rescript by the Emperor Antoninus that the Imperial Procurator had not improperly demanded the freight from the owner of the vessel, since he had not performed his duty in transporting the property. This rule must likewise be observed in the case of all other persons.
(7) Wherever there is any ground for the remission of rent for the above-mentioned reasons, the lessee cannot recover any interest to which he may be entitled, but he will be released from the payment of rent in proportion to the time. Finally, it has been already stated that the loss of the seed must be borne by the tenant.
(8) It is clear that if the owner of the property does not allow the lessee to enjoy it, either because he himself has leased it, or for the reason that someone has leased the property of another acting as his agent, or as if it was his own, he must indemnify the lessee to the extent of his interest. Proculus held this opinion where a party pretended to be an agent.
(9) Julianus says in the Fifteenth Book of the Digest that sometimes an action on hiring is brought for the purpose of releasing the parties to the contract; as, for instance, where I leased land to Titius, and he died after appointing a ward his heir, and, as the guardian had caused the ward to reject the inheritance, I leased the said land to another party at a higher rent; and afterwards the ward obtained possession of the estate of his father. In an action on hiring, he can recover nothing more than to be discharged from liability on his contract, for I had a good reason for again leasing the property:
16. Julianus, Digest, Book XV.
Since, at the time, no right of action was granted me against the ward.
17. Ulpianus, On the Edict, Book XXXII.
He also says that the ward is entitled to an action against his guardian, if he ought not to have rejected the estate.
18. Julianus, Digest, Book XV.
There will also be included in this action any profits which the ward could have obtained from the lease of the land.
19. Ulpianus, On the Edict, Book XXXII.
But you should add to the opinion of Julianus that if I was in collusion with the guardian I would be liable to an action on hiring to the extent of the interest of the ward.
(1) Where anyone rents defective casks, not knowing that they are such, and the wine afterwards leaks out, he will be liable to the amount of the party's interest, and his ignorance will not be excusable. This opinion was held by Cassius. The case is different if you rented a tract of land for pasturage in which poisonous herbs grew; for, in this instance, if any of the cattle died, or were depreciated in value, and you knew of the existence of the herbs, you must indemnify the lessee to the amount of his interest; and if you were ignorant of their existence, you cannot collect the rent. This was also held by Servius, Labeo, and Sabinus.
(2) We must consider where anyone leases a tract of land what implements he must furnish the lessee, and if he does not do this, whether he will be liable in an action on lease. A letter of Neratius to Aristo upon this point is extant which states that casks must be furnished the tenant, as well as a wine-press and an olive-press, equipped •with ropes, and if they are lacking, the owner must provide them, and he must likewise repair a press if it is out of order. If any of the implements become damaged through the fault of the tenant, he will be liable to an action on lease. Neratius says that the tenant is also required to provide the vessels which we use for pressing the olives. If the oil is pressed out by means of baskets, the owner must furnish the press, the windlass, the baskets, the wheel, and the pulleys by which the press is raised. He must also furnish the brazen kettle in which the oil is washed with warm water, as well as the other necessary utensils for handling the oil, together With the wine-casks, which the tenant must cover with pitch for present use. All these things shall be provided in this manner, unless some other special agreement has been made.
(3) Where the landlord inserted in the lease that he should be entitled to a specified amount of grain at a certain price, and he refuses to accept it, and is unwilling to make any deduction from the rent, he can bring an action to recover the entire amount; but the result will be that, in the discharge of his duty, the judge must take into account the interest which the lessee had in delivering the grain, rather than in paying money by way of rent. The same must likewise be held where an action on the lease is brought.
(4) What action will lie where a tenant adds a door or anything else to a house? The better opinion is that held by Labeo, namely, that an action on lease will lie to permit the tenant to remove it; provided, however, that he gives security against threatened injury, lest he may render the house of less value in some respect when he removes what he added, but only that he will restore the building to its original condition.
(5) If a tenant should bring a metal chest into a house, and the owner subsequently makes the entrance smaller; it is a fact that an action on lease, as well as one for the production of property will lie against the owner, whether he was aware or ignorant of the fact. It is the duty of the judge to compel him to furnish a passage to enable the tenant to remove the chest, of course at the expense of the landlord.
(6) If anyone should lease a house for a year, and pay the rent for the entire term, and, six months afterwards, the house falls down, or is consumed by fire; Mela very properly says that he will be entitled to an action on lease for the recovery of the rent for the remaining time, but not to one for the recovery of money which was not due; for he did not pay more by mistake, but that he might be benefited with reference to the lease. The case is different where anyone leases property for ten aurei and pays fifteen; for if he paid this sum by mistake, being under the impression that he had rented the property for fifteen aurei, he will not be entitled to an action on lease, but can only sue for the recovery of the money; for there is a great deal of difference between one who pays by mistake, and one who pays the entire rent in advance.
(7) Where anyone makes a contract for the transportation of a woman by sea, and afterwards a child is born to her on the ship, it has been established that nothing is due on account of the child; for the transportation was not more expensive, nor did the child consume anything which was provided for the use of those navigating the vessel.
(8) It is clear that an action on hiring can also pass to an heir.
(9) Where a certain copyist leased his services and the party who had contracted for them died; the Emperors Antoninus and Severus stated the following in a Rescript, in answer to an application of the copyist: "Since, as you allege that you are not to blame for not having furnished the services for which you were hired to Antoninus Aquilia, it is only just that, if you did not receive any salary from another during the year, the contract should be carried out."
(10) Papinianus states in the Fourth Book of Opinions that, where an envoy of the Emperor dies, his attendants must be paid their salaries for the remainder of their time of service; provided the said attendants were not, during that time, in the employ of others.
20. Paulus, On the Edict, Book XXXIV.
A lease, like a sale, can be made under a condition.
(1) It cannot, however, be contracted by way of donation.
(2) Sometimes the lessor is not bound, but the lessee is; as, for instance, where the buyer rents a tract of land until he pays the purchase-money.
21. Javolenus, Epistles, Book XI.
When I sold a tract of land, the agreement was that, until the entire amount was paid, the purchaser should lease it for a certain rent. When the money is paid, should a receipt be given for the rent? The answer was that good faith requires that what was agreed upon should be done, but that the purchaser should not be responsible to the vendor for a larger sum than the rent of the property would amount to during the time when the money was not paid.
22. Paulus, On the Edict, Book XXXIV.
Moreover, where it is inserted in the contract that if the price is not paid, the property shall not be purchased, an action on lease will lie.
(1) As often as any work is given to be performed, it is a lease.
(2) Where I contract for the construction of a house, with the understanding that the person I employ is to be responsible for all of the expense, he transfers to me the ownership of all the material used, and still the transaction is a lease; for the artisan leases me his services, that is to say, the necessity for performing the labor.
(3) Just as in a transaction of purchase and sale it is naturally conceded that the parties can either purchase or buy something more or less, and hence mutually restrain one another, so the rule is the same in leasing and hiring.
23. Hermogenianus, Epitomes of Law, Book II.
And, therefore, a contract of lease when once made cannot be rescinded under the pretext that the compensation was too low, where no fraud by the opposite party can be proved.
24. Paulus, On the Edict, Book XXXIV.
Where it is included in the contract of lease that the work shall be approved by the owner, it is considered that this means in accordance with the judgment of a good citizen. The same rule is observed where recourse is to be had to the judgment of any other person whomsoever; for good faith demands that such judgment should be afforded as befits a good citizen. Judgment of this kind has reference to the quality of the work, and not to the extension of the time prescribed by the contract, unless this itself was included in the agreement. The result of which is that where the approval of the work has been obtained by the fraud of the party employed, it is of no effect, and an action on lease can be brought.
(1) Where a tenant rents a tract of land, the property of a subtenant is not bound to the owner, but the crops remain in the condition of a pledge, just as if the first tenant had gathered them.
(2) Where a house or a tract of land is rented for the term of five years, the owner can at once bring an action against the tenant, if he abandons the cultivation of the soil, or vacates the house.
(3) He can, also, bring suit with reference to those things which the tenant ought to do without delay; as, for instance, some labor which he should perform, like the planting of trees.
(4) Where a tenant is unable to enjoy the property, he can legally bring an action at once for his entire term of five years, although the owner may have allowed him to enjoy it for the remaining years, as the owner will not always be released for the reason that he permitted the tenant to enjoy the property for the second or third year. For where the tenant has been ejected under the lease, and has betaken himself to another farm, he will not be able to cultivate both, nor will he be compelled to pay the rent, and he can recover the amount of the profit which he would have obtained if he had been unmolested; for permission to enjoy the property comes too late where it is offered at a time when the tenant, being occupied with other matters, cannot take advantage of it. If the landlord prevents his enjoyment of the property, and then changes his mind, the affairs of the tenant are held to be unaltered; and the delay of a few days does not lessen the obligation to any extent. Again, a party can properly bring an action on lease, to whom certain articles have not been furnished in accordance with the agreement, or where he is prevented by the owner from enjoying the property, or where this is done by a stranger whom the owner can control.
(5) If a landlord rents a tract of land for several years, and charges his heir by his will to release the tenant, and the heir does not permit the latter to enjoy the property for the remainder of his term, an action on lease will lie. If he allows him to do so, but does not remit the rent, he will be liable to an action under the will.
25. Gaius, On the Provincial Edict, Book X.
Where rent has been promised in general terms, to be decided by a third party, a lease is not held to have been made. But where it is stated that the amount of the rent shall be estimated by Titius, the lease will be valid subject to this condition; and if the party mentioned fixes the rent, it must, by all means, be paid in accordance with his estimate, and the lease will become operative. If, however, he refuses to do this, or is unable to fix the rent, the lease will be of no effect, just as if the amount of the rent had not been determined.
(1) Where a man has leased anyone a tract of land to be cultivated, or a house to be occupied, and, for some reason or other, he sells the land or the house, he must see that the purchaser permits the tenant to enjoy the land or occupy the house, in accordance with the terms of the same contract; otherwise, if he is prevented from doing so, he can bring an action on lease against the vendor.
(2) Where a neighbor, in building a house, cuts off the light from a room, the landlord will be liable to the tenant. There is certainly no doubt that the tenant can give up the lease in a case of this kind; and also, where an action is brought against him for the rent, compensation must be taken into account. We understand that the same rule applies where the landlord does not repair any doors or windows which may have been damaged or destroyed.
(3) The lessee should do everything in accordance with the terms of the lease, and, above all things, he should be careful to perform the labors on the farm at the proper time, lest cultivation out of season cause the soil to be deteriorated. He should also take care of the buildings in order to prevent them from being damaged.
(4) He will also be considered to be to blame if his neighbor, through enmity, cuts down the trees.
(5) If he himself cuts them down, he will not only be liable to an action on lease, but also to those under the Lex Aquilia and the Law of the Twelve Tables with reference to cutting trees by stealth, and to the interdict based on a violent or clandestine act. It is, undoubtedly, a part of the duty of the judge who hears the case on lease, to see that the lessor abandons the other actions.
(6) Superior force, which the Greeks call "Divine Power," should not cause any loss to the tenant where the crops are injured in an unusual degree, otherwise, he must endure any moderate damage with untroubled mind, where he is not deprived of any extraordinary profit. It is evident, however, that we are speaking of a tenant who pays his rent in cash; on the other hand, where he divides the crops, as in the case of a partnership, he must also share the loss and gain with the owner of the land.
(7) Where anyone takes charge of the transportation of a column, and it is broken when it is raised, or while it is being carried, or when it is unloaded, he will be responsible for the damage, where this happened through his fault, or that of any of the workmen whom he employs. He will not be to blame, however, if all precautions are taken which a very diligent and careful man should take. We, of course, understand that the same rule applies where anyone agrees to transport casks or lumber, as well as other things which are to be conveyed from one place to another.
(8) If a fuller or a tailor should lose clothing, and satisfy the owner of the same, the latter must assign to him his rights of action to recover the property.
26. Ulpianus, Disputations, Book II.
Where anyone has hired his services to two employers at the same time, he must satisfy the one who has first employed him.
27. Alfenus, Digest, Book II.
It is not always necessary to make a deduction from the rent in the case where tenants have been put to a little inconvenience, with reference to a part of their lodgings; for the tenant is in such a position that if anything should fall on the building, and by reason of this the owner be compelled to demolish a portion of the same, he ought to bear the slight inconvenience resulting therefrom; but, in doing so, the owner must not open that part of the house of which the tenant is accustomed to make the most use.
(1) Again, the question is asked, if a tenant should leave on account of fear, will he be obliged to pay the rent, or not? The answer is that, if he had good reason to be afraid, even though there was not actually any danger, he will not owe the rent; but if there was no just cause for fear, it will still be due.
28. Labeo, Later Epitomes by Javolenus, Book IV.
Where, however, the tenant still makes use of the house, he must pay the rent.
(1) Labeo thinks that the rent is due, even if the house is out of repair.
(2) The same rule of law applies where the tenant has the power to lease the house and pay the rent. If, however, the landlord does not give the tenant authority to rent the house in which he lives, and he, nevertheless, does rent it, Labeo thinks that he must indemnify him for all that he has paid without fraudulent intent. But if the tenant was occupying the house gratuitously, a deduction should be made in proportion to the unexpired time of the lease.
29. Alfenus, Digest, Book VII.
The following was inserted in the contract of a lease: "The lessee shall neither cut down trees, nor girdle nor burn them, nor permit anyone to girdle, cut down, or burn the same." The question arose whether the lessee should prevent anyone whom he saw doing something of this kind, or whether he should keep such a watch upon the trees that no one could do this. I answered that the word "permit" includes both significations, but that the lessor seemed to have intended that the lessee should not only prevent anyone whom he saw cutting down trees, but should also be careful and take such precautions that no one could cut them down.
30. The Same, Digest of Epitomes by Paulus, Book III.
A man who rented a house for thirty aurei, sub-let the separate rooms on such terms that he collected forty for all of them. The owner of the building demolished it, because he said that it was about to fall down. The question arose what the amount of damages should be, and whether the party who rented the entire house could bring an action on lease. The answer was that if the building was in such a bad condition that it was necessary to tear it down, an estimate should be made, and the damages assessed in proportion to the amount for which the owner had leased the premises, and that the time when the tenants were unable to occupy them should also be taken into consideration. If, however, it was not necessary to demolish the house, but the owner did so because he wished to build a better one, the judgment must be for the amount of the interest which the tenant had in his sub-tenants not being compelled to leave the premises.
(1) An aedile rented baths in a certain town for the term of a year, in order that they might be used gratuitously by the citizens. The baths having been destroyed by fire after three months, it was held that an action on lease could be brought against the proprietor of the baths, that a part of the price should be refunded in proportion to the time during which the baths were not available.
(2) Inquiry was made as to the action to be brought where a man hired mules to be loaded with a certain weight, and he who hired them injured them with heavier loads. The answer was that the owner could legally proceed either under the Lex Aquilia or in an action on lease, but that, under the Lex Aquilia, he could only sue the party who had driven the mules at the time; but, by an action on lease, he could properly proceed against him who hired them, even if someone else had injured them.
(3) A man who contracted for the building of a house stated in the agreement: "I will furnish the stone necessary for the work, and the owner shall pay to the contractor seven sesterces for each foot, and as much for the stone as for the labor." The question arose whether the work must be measured before, or after it was completed. The answer was that it should be measured while it was still unfinished.
(4) A tenant received a house under the condition that he would return it uninjured, except so far as damage might result through violence or age. A slave of the tenant burnt the house, but not accidentally. The opinion was given that this kind of violence would not appear to have been excepted; and that it was not agreed that the tenant should not be responsible if a slave burnt it, but that both the parties intended that violence exerted by strangers should be excepted.
31. The Same, Epitomes of the Digest by Paulus, Book V.
Several persons loaded the ship of Saufeius with grain without separating it; Saufeius delivered to one of them his grain out of the common heap, and the vessel was afterwards lost. The question arose whether the others could bring an action against the master of the ship with reference to their share of the grain on the ground that he had diverted the cargo. The answer was that there are two kinds of leases of property, one of them where the article must itself be returned, as where clothing is entrusted to a fuller to be cleaned, or where something of the same kind must be given back; as, for instance, where a mass of silver is given to a workman to be made into vases, or gold is given to be made into rings. In the first instance, the property still belongs to the owner; in the second, he becomes the creditor for its value. The same rule of law applies to deposits, for where a party has deposited a sum of money without having enclosed it in anything, or sealed it up, but simply after counting it, the party with whom it is left is not bound to do anything but repay the same amount of money. In accordance with this, the grain seems to have become the property of Saufeius, and he very properly gave up a portion of it. If, however, the grain of each of the parties had been separately enclosed by means of boards, or in sacks, or in casks, so that what belonged to each could be distinguished, it could not be changed; for then the owner of the wheat which the master of the ship had delivered could bring an action for its recovery, and, therefore, the authorities do not approve of actions on the ground of the diversion of the cargo in this case, because the merchandise which was delivered to the master was either all of the same kind and at once became his, and the owner became his creditor (for it is not held that there was a diversion of the cargo since it became the property of the master); or the identical article which was delivered must be restored, and in this instance, an action for theft would lie against the master, and hence an action on the ground of the diversion of the cargo would be superfluous. Where, however, the merchandise was delivered with the understanding that the same kind should be returned, the party receiving it would only be liable for negligence, as liability for negligence exists where the contract is made for the benefit of both parties, and no negligence can exist where the master returned to one of the owners a portion of the grain, since it was necessary for him to deliver his share to one of them before the others, even though he would be in a better condition than the others by his doing so.
32. Julianus, On Minicius, Book IV.
A man who leased a tract of land to be cultivated for a term of several years died, and devised the said land. Cassius denied that the tenant could be compelled to cultivate the land, because the heir had no interest in it. If, however, the tenant desired to cultivate it, and was prevented from doing so by the party to whom the land had been left, he would be entitled to an action against the heir, and the loss must be borne by the heir; just as where anyone sells something and bequeaths it to another before he delivers it; for, in this instance, the heir will be liable both to the purchaser and to the legatee.
33. Africanus, Questions, Book VIII.
Where a tract of land which you have leased to me is confiscated, you will be liable to an action on lease to permit me to enjoy it, even though it is not your fault that I cannot do so; just as it is held if you contract for the building of a house, and the ground on which it is to be erected is destroyed, you will, nevertheless, be liable. For if you should sell me a tract of land, and it should be confiscated before delivery, you will be liable to an action on purchase; and this is true to the extent that you must return the price, and not that you will be obliged to indemnify me for anything more than my interest in having the vacant tract of land delivered to me. Hence, I think that the rule also applies to a lease, so that you must return the rent that I have paid for the time I was not able to enjoy the property, but you cannot be compelled to do this by any other action on lease; for if your tenant is prevented from enjoying the land either by you, or by another party whom you have the power to hinder from doing so, you must indemnify him to the extent of his interest in enjoying the property, and in this his profit is also included. If, however, he is hindered by anyone whom you cannot control, on account of his superior force or authority, you will not be liable to him for anything but to release the rent which has not been paid, or to refund that which has been paid.
34. Gaius, On the Provincial Edict, Book X.
Just as if this had happened through an attack of robbers.
35. Africanus, Questions, Book VIII.
This distinction corresponds to that which was introduced by Servius, and has been approved by almost all authorities; that is to say, where a landlord prevents a tenant from enjoying the use of the house by making repairs upon it, it must be considered whether or not the house was demolished through necessity; for what difference would it make whether the lessor of a building is compelled to repair it on account of its age, or where the lessor of land is compelled to endure injury from a party whom he cannot prevent from inflicting it? It must be understood, however, that we make use of this distinction with reference to a person who has leased his land to be enjoyed, and has transacted the business in good faith; and not to one who has fraudulently leased land belonging to another and is unable to resist the owner of the same, when he prevents the tenant from enjoying it.
(1) When we hold land in common, and it is agreed upon between us that we shall have the renting of the same during alternate years for a certain amount, and you, when your year has expired, purposely destroy the crop of the ensuing year, I can proceed against you by means of two actions, one based on ownership, and the other on the ground of a lease; for my share is involved in the action on ownership, and yours only in the action on lease. Then, it is asked, will it not be the fact that, so far as my share is concerned, the loss sustained by me on your account must be made good by means of an action in partition? This opinion is correct, but, nevertheless, I think that that of Servius is also true, namely: "That where I make use of either one of the above-named actions the other will be destroyed." This question we may ask more simply, if it is suggested that, where it has been agreed upon between two parties who have separate tracts of land belonging to them, each shall have a right to lease the land of the other, with the understanding that the crops shall be delivered by way of rent.
36. Florentinus, Institutes, Book VII.
Where work is to be done under a contract, it is at the risk of the contractor until it is accepted. But, indeed, if it has been contracted for to be paid by feet or measure, it will be at the risk of the contractor, until it is measured; and in both instances the risk must be borne by the employer if he was to blame for the work not being accepted or measured. If, however, the work should be destroyed by superior force, before being accepted, it will be at the risk of the employer, unless some other agreement has been made. The contractor is not obliged to be responsible to the employer for anything more than he could have accomplished by his care and labor.
37. Javolenus, On Cassius, Book VIII.
If a work is destroyed by superior force before it has been accepted by the employer, he must bear the loss, if the work was of such a character that he should have accepted it.
38. Paulus, Rules.
A man who has hired his services is entitled to compensation for the entire time for which he was employed, if he was not to blame for failing to do the work.
(1) Advocates, also, are not compelled to return their fees, if they are not to blame for not trying a case.
39. Ulpianus, On the Edict, Book II.
A lease does not usually change the ownership of property.
40. Gaius, On the Provincial Edict, Book V.
He who receives compensation for the safe-keeping of any property is responsible for the custody of the same.
41. Ulpianus, On the Edict, Book V.
Julianus, however, says that an action cannot be brought against one person for an injury committed by another; for by what degree of care can he prevent unlawful damage from being caused by someone else? Marcellus, however, says that this can sometimes be done where the party could have taken such care of the property that it could not have been injured, or where he himself, having charge of it, committed the damage. This opinion of Marcellus should be approved.
42. Paulus, On the Edict, Book XIII.
If you steal a slave that has been leased to you, one of two actions is available against you: the action on lease, and the one for theft.
43. The Same, On the Edict, Book XXI.
If you wound a slave that has been leased to you, the action under the Lex Aquilia or the one on lease can be brought on account of the wound, but the plaintiff must be content with one or the other of these; and this is a part of the duty of the judge before whom proceedings based on the lease are instituted.
44. Ulpianus, On the Edict, Book VII.
No one can lease a servitude.
45. Paulus, On the Edict, Book XXII.
If I lease you a house and my slaves cause you any damage, or commit a theft, I am not liable to you on the lease, but in a noxal action.
(1) If I lease you a slave to be employed in your shop, and he commits a theft, it may be doubted whether an action on hiring will be sufficient in this instance; for it is far from being in accordance with the good faith implied by the contract that you should suffer any loss on account of the property which you have hired; or should it be stated that, in addition to the right of action based on the hiring, there is also one on the ground of the crime of theft, and that this offence gives rise to a peculiar right of action of its own? This is the better opinion.
46. Ulpianus, On the Edict, Book LXIX.
Where anyone leases property for a coin of trifling value the lease is void, for this resembles a donation.
47. Marcellus, Digest, Book VI.
When it is ascertained that a purchaser or a lessee has sold or leased the property to several other parties, in such a way that each of them is responsible for the entire amount, they can only be compelled to pay their shares where it is established that they are all solvent; although, perhaps, it would be more just that, even where they are all solvent, the claimant should not be deprived of the right of suing any one of them that he wishes, if he does not refuse to assign the rights of action which he has against the others.
48. The Same, Digest, Book VIII.
If I contract with anyone to perform some labor which I myself have agreed to do, it is settled that I will be entitled to an action on lease against him.
(1) Where a party refuses to restore to me a slave, or any other movable property which I have leased to him, judgment shall be rendered against him for the amount of damages sworn to by me in court.
49. Modestinus, Excuses, Book VI.
Where guardians or curators have been appointed, they are forbidden to rent any property belonging to the Emperor before they have rendered their accounts. And if anyone, concealing the fact, should appear for the purpose of renting lands belonging to the Emperor, he shall be punished as a forger. This decision the Emperor Severus also sanctioned.
(1) As a result of this, persons who are administering a guardianship or a curatorship are forbidden to rent anything from the Treasury.
50. The Same, Pandects, Book X.
Where anyone ignorantly leases property to a soldier, believing him to be a civilian, it is settled that he can collect the rent from him, for since he was not aware that he was a soldier, he is not guilty of violation of military discipline.
51. Javolenus, Epistles, Book XI.
I leased a tract of land under the condition that, if it was not cultivated in compliance with the terms of the lease, I should have the right to lease it again to another, and that the tenant should indemnify me for any loss which I might sustain. In this instance, it was not agreed that, if I rented the land for more money, the excess should be paid to you; and, as no one was cultivating the land, I, nevertheless, leased it for more. I ask whether I should give the amount of the excess to the first lessee. The answer was that, in obligations of this kind, we should pay particular attention to what was agreed upon between the parties. It is held, however, that in this instance, it was tacitly agreed that nothing should be paid if the land was rented for more money; that is to say, this provision was inserted in the agreement only for the benefit of the lessor.
(1) I hired work to be done under the condition of paying a certain amount every day for said work to the party employed. The work being badly done, can I bring an action against him on the lease? The answer was, if you hired this work to be done on condition that the party employed to do it should be liable to you for its being properly performed, even though it was agreed upon that a certain sum of money should be paid for each piece of work, the contractor will still be responsible to you if the work was badly done. For, indeed, it makes no difference whether the work is performed for one price, or whether payment is made for each portion of the same, provided the whole of it must be performed by the contractor. Therefore, an action on lease can be brought against him who performed the work badly, unless payment was arranged for separate portions of it, so that it might be performed according to the approval of the owner; for then the contractor is not considered to guarantee to the owner the excellence of the entire work.
52. Pomponius, On Quintus Mucius, Book XXXI.
If I lease you a tract of land for ten aurei, and you think that I am leasing it to you for five, the contract is void. If, however, I think that I am leasing it to you for less, and you think that you are leasing it for more, the lease will not be for a larger sum than I thought that it was.
53. Papinianus, Opinions, Book XI.
Where a surety appears for a tenant of public lands before an officer having charge of the same, and which the said officer has leased to the tenant, he will not be liable to the government; but the crops, in this instance, will remain as a pledge.
54. Paulus, Opinions, Book V.
I ask whether a surety who appears for a lessee will also be liable for interest on rent which has not been paid, or whether he can take advantage of the constitutions by which it is provided that those who pay money for others are only obliged to be responsible for the principal that is due. Paulus answered that even if the surety bound himself for everything relating to the lease, he also will be obliged to pay interest; just as the tenant is compelled to do, where he is in default for the payment of the rent. For, in contracts made in good faith, even though interest may not so much arise from the obligation, as it is dependent upon the decision of the judge, still, where the surety renders himself responsible for everything relating to the contract of the lessee, it seems but just that he also should bear the burden of interest, if he obligated himself as follows: "Do you bind yourself to the amount of a judgment justly rendered?" Or in these words: "Do you promise to indemnify me?"
(1) It was agreed by the lessor and the lessee of a tract of land that the tenant, Seius, should not be ejected against his will during the term of the lease, and if he was ejected, the lessor, Titius, should pay him a penalty of ten aurei; or, if the lessee, Seius, should desire to withdraw during the term of the lease, he should be compelled to pay ten aurei to the lessor, Titius, and the parties reciprocally stipulated with reference to this. I ask, as the lessee, Seius, did not pay the rent for two consecutive years, whether he could be ejected without Titius fearing to incur the penalty. Paulus answered that although nothing was stated in the penal stipulation with reference to the payment of the rent, still, it is probable that it was agreed that the tenant should not be ejected during the term of the lease, if he paid the rent, and cultivated the land, as he should do; so that if he understood to bring suit for the penalty, and had not paid the rent, the lessor could avail himself of an exception on the ground of bad faith.
(2) Paulus gave it as his opinion that, where anyone assigns a slave to his tenant after estimating his value, he will be at the risk of the tenant; and therefore, if he should die, his value, as appraised, must be made good by the heir of the tenant.
55. The Same, Sentences, Book II.
Where a granary has been broken into and plundered, the owner will not be liable, unless he was charged with the safe-keeping of its contents. But the slaves of the person with whom the contract was made can be demanded for the purpose of being tortured, on account of the knowledge of the building which they possess.
(1) Where a tract of land is leased and the lessee makes some addition to the same, by means of his labor, which is either necessary or useful, or erects a building, or makes some improvement which had not been agreed upon, he can proceed by an action on lease against the owner of the property for the recovery of the amount which he has expended.
(2) Where a lessee, contrary to the provisions of his lease, abandons the land without just or reasonable cause before his term has expired, he can be sued in an action on lease for the payment of the rent for the entire term, and for the indemnification of the lessor to the extent of his interest.
56. The Same, On the Duties of the Prefect of the Night-Watch.
Where the proprietors of magazines and warehouses desire them to be opened on account of the nonappearance of the lessees, and their failure to pay the rent during the term of the lease, and wish to have an inventory of the contents made by the public officials whose duty it is to do so, they shall be heard. The time to be considered in cases of this kind should be two years.
57. Javolenus, On the Last Works of Labeo, Book IX.
A man who owned a house leased an empty space adjoining the same to his next neighbor. The said neighbor, while building upon his own ground, threw the dirt for the excavation upon the said vacant space, and heaped it up higher than the stone foundation of the lessor; and the earth, having become wet by constant rains, weakened the wall of the lessor with moisture to such an extent that the building collapsed. Labeo says that only an action on lease will lie, because it was not the heaping up of the earth itself, but the moisture arising therefrom that subsequently caused the injury, but that an action on the ground of unlawful damage will only lie where the damage has not been produced by some outside cause. I approve this opinion.
58. Labeo, Later Epitomes by Javolenus, Book IV.
You leased an entire house for a gross sum, and then sold it under condition that the rent of the tenants should belong to the purchaser. Even though the lessee may have sub-let the said house for a larger amount, it, nevertheless, will belong to the purchaser, because the lessee owed it to you.
(1) It was stated in a contract for labor that it should be performed before a certain day, and then, if this was not done, the lessee should be liable to an amount equal to the interest of the lessor. I think that this obligation is contracted to the extent that a good citizen would fix the damages with reference to the time; because the intention of the parties seems to have been that the work should be completed within the time during which it could be done. A certain individual rented a bath in a town for forty drachmae a month, and it was agreed that he should be furnished a hundred drachmae for the repair of the furnace, the pipes, and other portions of the bath, and the lessee demanded the hundred drachmae. I think that they were owing to him, if he gave security that the money would be expended for repairs.
59. Javolenus, On the Lost Works of Labeo, Book V.
Marcius was employed to build a house by Flaccus. After the work was partly done the building was destroyed by an earthquake. Massurius Sabinus says that if the accident took place through some force of nature, as for instance, an earthquake, Flaccus must assume the risk.
60. Labeo, Last Epitomes by Javolenus, Book V.
Where a house is rented for several years, the lessor must not only permit the lessee to occupy it from the Kalends of July of each year, but also to sub-let the same during the term of his lease, if he desires to do so. Therefore, if the said house remains in a dilapidated condition from the Kalends of January to the Kalends of July, so that no one can occupy it, and it cannot be shown to anyone; the lessee will not be obliged to pay any rent to the lessor. Nor, indeed, can he be compelled to occupy the house, if it has been repaired after the Kalends of July, unless the lessor was ready to furnish him another house suitable for his residence.
(1) I think that the heir of a lessee, even though he may not be a tenant, will, nevertheless, hold possession for the owner of the property.
(2) If a fuller loses your clothing, and you have the means to recover it, but do not wish to avail yourself of them; you can, nevertheless, bring an action on lease against the fuller. The judge, however, must decide whether it will not be better for you to bring an action against the thief and recover your property from him; of course, at the expense of the fuller. But if he should consider this to be impossible, he must then render judgment in your favor against the fuller, and compel you to assign your rights of action to him.
(3) An agreement having been entered into, a house was contracted for under the condition that it should be subject to the approval or disapproval of the owner, or his heir. The contractor, with the consent of the other party, made certain changes in the work. I have it as My opinion that the work did not seem to have been performed in compliance with the terms of the contract, but since the changes had been made with the consent of the owner, the contractor should be released.
(4) I directed you to make an estimate of the amount you would ask to build a house, and you answered me that you would build it for two hundred aurei. I gave you the contract for a certain sum, and I afterwards ascertained that the house could not be built for less than three hundred aurei. I had already paid you a hundred, a part of which you had expended, and I then forbade you to proceed with the work. I held that if you continued to do the work, I would be entitled to an action on lease against you, to compel you to refund to me the remainder of the money.
(5) You remove a harvest, while the tenant is looking on, when you are aware that it belongs to someone else. Labeo says that the owner can sue you for the grain, and that the tenant has a right, under his lease, to bring an action against the owner to compel him to do so.
(6) The lessor of a warehouse had posted upon it that he would not receive deposits of gold, silver, or jewels at his own risk, and afterwards he, knowingly, allowed articles of this kind to be left in said warehouse. Hence, I stated that he would be liable to you just as if the clause in the notice had been erased.
(7) You employed a slave of mine who was a muleteer, and you lost a mule through his negligence. If he hired himself, I hold that I must make good the damage to you on the ground of property employed for my benefit, but only to the extent of the peculium of the slave. If, however, I myself leased him, I will not be responsible to you for anything else than fraud and negligence. But if you leased a muleteer from me without the designation of his person, and I deliver to you the one by whose negligence the animal perished, I say that I must be responsible to you for negligence, because I selected the slave who caused you loss of this kind.
(8) You hired a vehicle to carry your baggage and make a journey, and when a bridge was crossed, and the keeper demanded toll, the question arose whether the driver should pay toll for his carriage alone. I think that, if he knew when he hired his vehicle that he would cross the bridge, he should pay the toll.
(9) I hold that the lessee of an entire warehouse should not be responsible to the proprietor of the same for the custody of property, for which the proprietor himself should be liable to those who rented of him, unless it was otherwise agreed upon in the lease.
61. Scaevola, Digest, Book VII.
A tenant, although it was not included in the terms of his lease that he should plant vines, nevertheless, did plant them on the land, and, on account of the yield of the same, the field was rented for ten aurei more every year. The question arose whether the owner could sue the tenant, who had been ejected from the land for non-payment of rent, on the ground that rent was due; or whether he could recover the expense profitably incurred by planting the vines where an exception on the ground of fraud was filed. The answer was that he could either recover the expense, or that he would be liable for nothing more.
(1) A man leased for a certain sum a vessel to sail from the province of Cyrene to Aquileia, it being loaded with three thousand measures of oil and eight thousand bushels of grain. It happened, however, that the vessel, while loaded, was detained in said province for nine months, and the cargo was confiscated. The question arose whether the freight agreed upon could be collected by the owner of the vessel from the party who hired it, in accordance with the contract. The answer was that, in conformity to the facts stated, this could be done.
62. Labeo, Probabilities, Book I.
you make a contract for digging a canal, and complete it, and, before
it is accepted, it is destroyed by accident, the risk will be yours.
Paulus says that, even if the accident occurred through some fault
of the ground, the party hiring the work to be done must be responsible;
but if it happened because the work was defective, you must bear the
The action for the estimation of the value of property was invented for the purpose of removing doubt. For when property which had been appraised was given to another to be sold, it was doubtful whether an action on sale based on the estimated value would lie; or whether one on lease would be available, as I seemed to have leased the property for the purpose of sale; or whether one on hiring could be brought, since I hired the services of the party to sell it, or whether recourse could be had to an action on mandate? It, therefore, seemed to be betto be delivered as rent was required to be specifically indicated, and not merely a share of what might be produced.
(1) The estimate of property, however, is made at the risk of the person who receives it, and hence he must either restore the property itself in an undamaged condition, or pay the amount of the appraisement agreed upon.
2. Paulus, On the Edict, Book XXX.
action is an equitable one, and involves compensation.
Just as it is one thing to sell, and another to buy, and as a difference exists between purchaser and vendor, so the price is one thing, and the property another. In an exchange, however, it cannot be ascertained which is the purchaser and which the vendor. Exchanges differ greatly, for a purchaser is liable to an action on sale, unless he pays the purchase-money to the vendor; and it is sufficient for the vendor to bind himself in case of eviction, to deliver possession and be free from fraud, and therefore, if the property sold is not lost by a better title, he owes nothing. In an exchange, however, if the property of each party is regarded as the price of that of the other, the title to each article must pass, but if it is considered as merchandise, neither is required to transfer the ownership. But, while in a sale there must be both property and a price, it cannot be ascertained in an exchange which is the property, and which is the price, nor does reason permit that the same thing shall be at once the property sold and the price of what is purchased.
(1) Wherefore, if one of the articles which I have received or given is afterwards taken away through a better title, it is held that an action in factum should be granted.
(2) Moreover, purchase and sale is contracted by the mere will of the parties consenting to the same; an exchange, however, gives rise to an obligation by the delivery of the property. Otherwise, if the property was not delivered, we hold that an obligation could be contracted by mere consent, which is only applicable to agreements of this kind which have their own specific designations, as purchase, sale, lease, and mandate.
(3) Therefore Pedius says that where a party gives property which belongs to another an exchange is not contracted.
(4) Hence, where delivery is made by one party, and the other refuses to deliver his property, we cannot institute proceedings for the reason that it is to our interest to have received the article concerning which the agreement was made; but there will be ground for a personal suit for recovery to compel the property to be restored to us, just as if the transaction had not taken place.
2. The Same, On Plautius, Book V.
says that an exchange resembles a sale in a case where a guarantee
must be given that a slave is sound, and free from liability to arrest
for theft or damage committed, and that he is not a fugitive who must
be surrendered on this account.
It sometimes happens that existing and common actions will not lie, and we cannot find the proper name for the proceeding; so we readily have recourse to those designated in factum. In order that examples may not be wanting, I will give a few.
(1) Labeo states that a civil action in factum should be granted to the owner of merchandise against the master of a ship, where it is uncertain whether he leased the ship, or hired the services of the master, for the transportation of his goods.
(2) Likewise, where anyone delivers property to another for examination in order to establish the price of the same, a transaction which is neither a deposit nor a loan for use, and the party does not show good faith, a civil action in factum can be brought against him.
2. Celsus, Digest, Book VIII.
For when common and ordinary causes of action are lacking, proceedings must be instituted under that available for the explanation of the terms of the contract.
3. Julianus, Digest, Book XIV.
It is necessary to have recourse to this action wherever contracts exist, the names of which have not been stated by the Civil Law:
4. Ulpianus, On Sabinus, Book XXX.
For it arises from the nature of things, that there are more business transactions than terms to designate them.
5. Paulus, Questions, Book V.
My natural son is in your service, and your son is in mine. It is agreed between us that you shall manumit mine, and that I shall manumit yours. I did so, but you did not. The question arose as to under what action you will be liable to me. In the consideration of this point every kind of transaction relative to the delivery of property must be taken into account which is shown in the following example, namely: I either give to you that you may give to me, or I give to you that you may perform some act, or I perform some act that you may give to me, or I perform some act for you that you may perform another for me. In these cases it may be asked what obligation arises.
(1) If, in fact, I give money that I may receive some property in return, the transaction is one of purchase and sale. If, however, I give an article in order to receive another, for the reason that it is not held that an exchange of property is a purchase, there is no doubt that a civil obligation arises on account of which an action can be brought, not to compel you to return what you have received, but that you may indemnify me to the extent of my interest in receiving the article which was the subject of the contract; or if I prefer to receive my property, an action can be brought to recover what was given, because property was given on one side but not on the other. If, however, I gave you certain cups in order that you might give Stichus to me, Stichus will be at my risk, and you will be responsible only for negligence. This is the explanation of the agreement, "I give in order that you may give."
(2) But where I give in order that you may perform some act, and the act is such that it can be hired; for example that you may paint a picture, and money is paid, it will be a hiring, just as a purchase was made in the former instance. Where the transaction is not a hiring, a civil action either arises with reference to my interest, or a suit for the recovery of the property will lie. But if the act is such that it cannot be the subject of a contract for hire, as, for instance, that you manumit a slave, whether a certain time is added within which he must be manumitted, and when he could have been manumitted the time elapsed during the lifetime of the slave; or whether the time had not elapsed, but a sufficient period had passed when he could and should have been manumitted, an action can be brought for his recovery, or one for the construction of the contract. What we have already stated is applicable to these cases. If, however, I gave you a slave in order that you might manumit your slave, and you did so, and the one that I gave you is lost through a better title; if I gave him to you knowing that he was the property of another, Julianus says that an action based on fraud should be granted against me. If I was ignorant of the fact, a civil action in factum can be brought against me.
(3) If I perform some act in order that you may give me something, and after I have performed the act, you refuse to give it; a civil action will not lie, and therefore one on the ground of bad faith will be granted.
(4) If I perform some act in order that you may perform another, this includes several transactions. For if you and I agree that you can collect a claim from my debtor at Carthage, and that I can collect one from yours at Rome, or, that you may build a house on my land, in order that I may build one on yours, and I build mine, you fail to build yours; it is held that, in the former example, a mandate is given, as it were, without which money cannot be collected in the name of another. For even though expenses should be incurred on both sides, still, we are each doing a service for one another, and a mandate founded on an agreement may extend beyond its natural limits. For I can direct you to be responsible for the safe-keeping of the property, and, order that, in collecting the debt, you shall not spend more than ten aurei. Where we both spend the same amount, there can be no cause for dispute, but if only one performs the act, so that in this instance a mandate seems to have been given, for example, that he should refund to one another the expenses incurred by each, I give you no mandate with reference to your own property. It will, however, be safer both in the construction of houses and in the collection of debts, to hold that an action should be granted for the interpretation of the contract, which resembles an action on mandate, just as in the former cases a resemblance exists between the action on hiring and the one on sale.
(5) Hence, if these things are true, where it has been agreed upon by both parties to perform reciprocal acts, the same can be said with reference to the question proposed; and it necessarily follows that judgment must be rendered against you to the extent of my interest in the slave that I manumitted. Should a deduction be made because I now have a freedman? This, however, cannot be taken into consideration.
6. Neratius, Opinions, Book I.
I sold you a house on condition that you would repair another. The opinion was given that there was no sale, but that a civil action could be brought for an uncertain amount of damages.
7. Papinianus, Questions, Book II.
If I gave you ten aurei in order that you might manumit Stichus, and you failed to do so; I can at once bring an action praescriptis verbis to force you to pay the amount of my interest; and if I have no interest, I can bring an action against you to compel you to restore the ten aurei.
8. The Same, Questions, Book XXVII.
Where a master, after having stated the value of his slave, delivered him up to be put to torture when he was accused of theft, and he was not found guilty, and he to whom he was delivered would not return him, a civil action can be brought against him on this ground; although, under certain circumstances, a party to whom a slave has been delivered can retain him. For he can retain a slave if the owner prefers to receive the money instead, or where he has been caught committing a crime; for then the amount at which he has been appraised must be paid by his master. But the question, however, arises, by what action the money can be recovered, if the master chooses to receive the appraised value of the slave? I stated that, although what was agreed among the parties was not prescribed by the terms of a stipulation, still, if the intention of the contract was not obscure, an action praescriptis verbis could in this case be brought, and that it should not be held that a mere agreement without consideration had been made, since it could be proved that the property was given under a certain condition.
9. The Same, Opinions, Book XI.
Where anyone is released from liability on condition that he will delegate his obligation to Titius, as debtor, and he does not comply with the condition of the contract, he will be liable to an action for an uncertain amount of damages. Hence it is the duty of the judge, not to see that the old obligation is restored, but that the promise shall be fulfilled, or judgment be rendered.
10. Javolenus, Epistles, Book XIII.
A certain man bequeathed the usufruct of a third of his estate. The property of his heir was sold by his creditors, and the woman to whom the bequest was made received, in the place of the usufruct, the amount of the appraisement of the third part of the estate, and, through ignorance, the ordinary stipulation was omitted. I ask whether suit can be brought by the heir of the woman for the money which was given her, instead of the enjoyment of the usufruct, and if so, what kind of a suit? I answered that an action in factum should be granted.
11. Pomponius, On Quintus Mucius, Book XXXIX.
For the reason that the number of actions is not sufficient in every instance, recourse, in general, is had to those in factum. So far as actions prescribed by the laws are concerned, where one is just and necessary, the Praetor supplies it, if no provision for the case has been made by legislation. This he does under the Lex Aquilia, by granting actions in factum adapted to the purpose, which the utility of said law requires.
12. Proculus, Epistles, Book XI.
Where a man sold certain lands to his wife, and an agreement was entered into at the time that, if the marriage was dissolved, the wife should transfer to her husband the said lands for the same price, if he desired her to do so, I think that an action in factum ought to be granted, and that this rule should also be observed with reference to other persons.
13. Ulpianus, On Sabinus, Book XXX.
If I give you property to be sold for a certain price, with the understanding that if you sell it for more you can keep the surplus, it is held that neither an action on mandate, nor one on partnership will lie, but that one in factum should be brought, as in the case of voluntary agency; for the reason that a mandate should be gratuitous, and a partnership is not held to be formed with reference to a person who does not admit you as a partner in the sale, but reserves a certain portion of the proceeds for himself. Julianus states in the Eleventh Book of the Digest: "If I give to you the ownership of an unoccupied tract of land belonging to me, on condition that after having built a house thereon, you will convey to me a share in the same; this transaction is not a sale, because I receive a part of my own property instead of the price; nor is it a mandate, because it is not gratuitous, nor a partnership, for the reason that no one, in entering into a partnership, ceases to be the owner of his own property." But if I give you said land for the purpose of instructing a boy, or to pasture a flock, or for the support of a boy with the understanding that if it should be sold after the lapse of a certain number of years, the purchase-money shall be divided between us; this is a very different transaction from that relative to the unoccupied land, because in this case he who formerly owned the property does not cease to be the proprietor of the same, and therefore an action on partnership will lie. If, however, I should transfer to you the ownership of a young slave, the same rule will apply, as in the case of the land, because the ownership ceases to vest in the former proprietor. What, then, is the rule? Julianus thinks that an action in factum should be granted, that is to say, one for the interpretation of the contract. Hence, if the party does not transfer the ownership of the land, but permits you to build upon it with the understanding that either the land, or the price of the same, if sold, shall be divided, this will be a partnership. The same principle applies where the proprietor transfers the ownership of a portion of the land, reserving that of the remainder, and permits a house to be built under the same condition.
14. The Same, On Sabinus, Book XLI.
Where anyone throws merchandise belonging to another into the sea for the purpose of saving his own, he will not be liable to any action. If, however, he does this without any reason, he will be liable to an action in factum; and if he should do so with malicious intent, he will be liable to an action on that ground.
(1) If anyone should strip a slave belonging to another, and he dies of cold, an action on the ground of the theft of his clothing as well as one in factum on account of the slave can be brought; the right to proceed criminally against the thief remaining unimpaired.
(2) If anyone should throw into the sea a silver cup belonging to another, Pomponius, in the Seventeenth Book on Sabinus, says that neither an action of theft, nor one on the ground of unlawful damage will lie, but that one in factum can be brought.
(3) Where acorns fall upon my land from a tree belonging to you, and I permit my cattle to feed upon them, Aristo says that he knows of no legal action whereby I can proceed, because suit with reference to the pasturage of the cattle cannot be brought under the Law of the Twelve Tables, as they did not pasture upon your premises, nor one for trespass, nor one for unlawful damage. Hence an action in factum should be brought.
15. The Same, On Sabinus, Book XLII.
Persons who know where fugitive slaves are concealed should inform their masters, and this does not render them guilty of theft; for it is usual for them to receive a reward for doing so, if they disclose the hiding place of said slaves, and the gift in this instance is not deemed unlawful; therefore, the party who receives the reward need not fear a suit for its recovery, because he received it for a good reason, and not for one which is dishonorable. Where, however, nothing was paid, but an agreement was entered into with reference to the information, that is to say, that a certain sum should be given to the party if he disclosed the hiding-place of the slave, and the latter is apprehended, let us see whether an action can be brought. In fact, this is not an agreement without consideration, from which it may be held that an action will not arise, but it includes a certain transaction, and therefore can become the ground for a civil action; that is, one praescriptis verbis, unless someone may say that, in this case, a suit on the ground of fraud will lie, where bad faith can be established.
16. Pomponius, On Sabinus, Book XXII.
You permitted me to dig chalk on your land on condition that I would fill up the place from whence I took it. I took away the chalk, but did not fill up the excavation. The question arose, what action are you entitled to? It is certain that a civil action for an unascertained amount of damages will lie. Where, however, you sold me the chalk, you can proceed by an action on sale. If, after taking out the chalk, I should fill up the excavation, and you do not allow me to remove the chalk, I will then have a right of action for production against you, because it belongs to me, as I dug it with your consent.
(1) You gave me permission to sow grain on your land, and to remove the crop. I sowed it, but you did not allow me to remove the grain. Aristo says that a civil action will not lie, and it may be a question whether an action in factum should be granted, but that one on the ground of bad faith will certainly be available.
17. Ulpianus, On the Edict, Book XXVIII.
If I give you a gratuitous lodging in my house, can I proceed against you on the ground of a loan for use? Vivianus says that I can; but it is safer to bring suit for the construction of the contract.
(1) If I give you a jewel the value of which has been appraised, on condition that you will restore it to me, or pay me the price of the same; and it should be destroyed before the sale was concluded, who must bear the loss? Labeo says, and Pomponius also holds that if I, as the vendor, ask you to dispose of it, the risk will be mine, but if you ask me to do so, it will be yours; and if neither one asks the other but we merely make an agreement, you will only be liable for fraud and negligence, and, in this instance, an action praescriptis verbis will certainly lie.
(2) Papinianus states in the Eighth Book of the Questions: "If I gave you an article for the purpose of examining it, and you allege that you have lost it, an action for the construction of the contract will lie only if I am ignorant where the article is. For if I know that it is in your possession, I can bring an action of theft, or one for the recovery of the property, or one for its production. Hence, if I have given the article to anyone to be examined, or for his own benefit, or for the benefit of both of us, I hold that he must be responsible to me for fraud and negligence, because of the advantage accruing to him; but not for its loss. Where, however, I have given the article to him for my own advantage, he will only be responsible for fraud, because this transaction closely resembles a deposit."
(3) Where my neighbor and myself each have an ox, and it is agreed between us that I shall lend mine to him for ten days, and that he shall lend me his for the same space of time, for the purpose of doing our work; and either of the oxen should die while in possession of the other party, an action on loan for use will not lie, because the loan was not gratuitous, but proceedings for the construction of the contract can be instituted.
(4) Where, when you intended to sell me clothing, I requested you to leave it with me that I might show it to others more skilled in such matters than myself, and it was destroyed by fire, or by some other irresistible force; I will not be in the least responsible to you for its value. From which it is manifest that I am liable only for the want of ordinary care.
(5) Where anyone receives rings to be held as security for a wager, and does not surrender them to the one who wins it, an actio praescriptis verbis can be brought against him. The opinion of Sabinus, who thinks that, in this instance, an action for recovery, and one on the ground of theft, will lie, should not be adopted. For how can he bring an action on theft with reference to property whose possession or ownership he has never enjoyed? It is clear, however, that if the wager was dishonorable, the successful party can only recover his own ring.
18. The Same, On the Edict, Book XXX.
If I deposit a sum of money with you for you to give to Titius if he brings back my fugitive slave, and you do not give it to him because he did not restore said slave, and you fail to return me the money, the best method is to proceed by an action for the construction of the contract, since the pursuer of the fugitive slave and myself did not deposit said money, as is done in sequestration.
19. The Same, On the Edict, Book XXXI.
You asked me to loan you money, and as I did not have it, I gave you certain property to be sold that you might make use of the proceeds. If you did not sell said property, or you did sell it and did not take the price received as a loan, it is safer to proceed, as Labeo says, by an action for the interpretation of the contract, as if there had been a certain agreement entered into between us.
(1) If I should mortgage a tract of land for your benefit, and it should afterwards be agreed upon between us that you will furnish me a surety, and you do not do so; I say that the better plan will be to bring an action for the interpretation of the contract, unless some compensation is involved, for if it is, an action on lease will lie.
20. The Same, On the Edict, Book XXXII.
It is asked by Labeo, "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 by Mela: "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 robbers within the time given for the trial; what must be made good, the money and the mules, or the mules alone?" 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 mules. 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.
(2) If when you wish to purchase silver plate, and a silversmith brings some to you and leaves it, and, as it does not suit you, you give it to your servant to be returned, and it is lost without fraud or negligence on your part; the loss must be borne by the silversmith, because it was sent for his benefit as well as yours. Labeo says that it is certain that you are responsible for the negligence of those to whom the articles have been committed for safe-keeping and delivery; and I think that an action for the construction of the contract will lie in this instance.
21. The Same, Disputations, Book II.
Wherever an ordinary action or exception will not lie, a praetorian action or exception will be available.
22. Gaius, On the Provincial Edict, Book X.
If I give you clothing to be cleaned or repaired, and you undertake to do the work gratuitously, an obligation on mandate arises; but if compensation has been given or agreed upon, the transaction is one of leasing and hiring. If, however, you did not undertake it gratuitously, and compensation was neither given at the time nor promised, but the transaction was entered into with the understanding that afterwards payment should be made to the amount agreed upon between us; it is settled that an action in factum should be granted, as in the case of a new transaction, that is to say a suit for the interpretation of the contract.
23. Alfenus, Epitomes of the Digest of Paulus, Book III.
Two persons were walking along the Tiber; one of them having asked the other to show him his ring, he did so, and, while he was examining it, it fell from his hands and rolled into the Tiber. The opinion was given that an action in factum was available.
24. Africanus, Questions, Book VIII.
Titius lent Sempronius thirty aurei, it being agreed upon between them that, on the return of the money, Sempronius should pay the taxes which Titius owed, the interest being computed at six per cent; and in case the interest amounted to more than the taxes, Sempronius should return the surplus of said interest to Titius, and where the taxes were more than the interest, the excess should be deducted from the principal; but if the amount of the taxes should exceed both principal and interest, Titius should make good the amount to Sempronius; and no formal stipulation with reference to the matter was made between the parties. Titius asked for an opinion as to what action he could bring in order to recover from Sempronius the remainder of the interest, after payment of the taxes. The answer was that interest on the money lent was not actually due unless a stipulation had been entered into concerning the same; but in the case stated it should be considered whether the transaction should not be held to be a mandate agreed upon between the parties, rather than a loan at interest, unless the interest collected exceeded six per cent. The action for the recovery of the principal would not, indeed, be based on money loaned; for if Sempronius had either lost the money without bad faith, or had kept it unemployed, it must be said that he would not be at all liable on that ground. Wherefore, it is the safer plan for an action in factum to be granted for the construction of the contract, especially where it is also agreed that if the amount of the taxes exceeds the interest it should be deducted from the principal, which goes beyond the provisions of the law and the terms of the contract for money loaned.
25. Marcianus, Rules, Book III.
Where anyone furnishes the services of his slave, who is an artisan, to another, in exchange for those of a similar slave belonging to the latter, for the same length of time, proceedings can be instituted by an actio praescriptis verbis, just as in the case where a party gives cloaks in return for tunics. Nor is this inapplicable, if services which were not due should be rendered by mistake, as these cannot be recovered; for in giving one thing in return for another we contract an obligation under the Law of Nations, but where something is given which is not due, either restitution should be legally demanded, or an equal amount of the same thing should be returned, and by neither of these methods can the services above mentioned be recovered.
26. Pomponius, On Sabinus, Book XXI.
If I gave you some cups with the understanding that you were to return them to me, an action on loan for use will lie. If, however, I gave them to you on condition that you would deliver to me their weight in silver, whatever that might be; a demand for the recovery of this weight must be made by means of an action for the construction of the contract, as well as one for silver of the same fineness as that of which the cups were composed. But, if it was agreed that you should return the cups, or an amount of silver equal to their weight, the same rule will apply.