Question XIII: Whether a sale with a pact of repurchase is lawful

I SAY first, that a sale with a pact of buying back is licit, even in favor of the seller alone. This is the common opinion. So Molina t. 2, disp. 375; Tanner. disp. 4, question 7, n. 51; Less. book 1 de Iust., book 5, chap. 21, dub. 14, n. 113; Fagundez book 5, chap. 43; and others as gathered in these authors, and Bassaeus n. 3; provided, however, first, that there be an intention of selling. Secondly, that the price of the thing be just. Thirdly, that the fruits belong to the buyer, as I shall say.

It is proved, because such a pact is nowhere found forbidden, nor is it prejudicial to anyone. Nor does C. ad nostram stand in the way, because there other bad conditions are brought forward.

Also, the thing sold with such a pact is worth less than if it were sold without it, nor is it to be increased in the redemption. So the Doctors commonly, as gathered by Fagundez n. 5; Tanner. n. 51. The reason is, because it is sold with a burden. Some indeed want it to be worth a third part less; others remit this to the judgment of a prudent man.

You ask first, To whom do the fruits belong that hang during that time?

They answer, They belong to the buyer, provided the sale is not usurious. See Fagund. and Bassaeus.

You ask secondly, When in the sale no term is set for buying back, what term is prescribed: Some say it is one of 30 years. Others say it can always be redeemed. See Fagundez n. 19; it is founded on l. si ita stipulatus, ff. de fid. instrum. And l. hac conditio, and l. 2, ff. de condition. et demonstrat., and Barthol. teaches there.

You ask first, In what the sale to the body differs from the sale to the measure.

A sale to the body takes place when the thing is sold by a designation and expression of the quantity in a confused way, as if I sell you such a farm contained within such boundaries, however many acres it may have; not designating that it has so many acres, as in Fagund. book 5, chap. 44.

A sale to the measure is when so many measures are designated, e. g. ten modia of wheat; or ten amphorae of wine, according to Fagund. chap. 44.

Therefore, when the form of the words of the contract begins from the measure, the sale is deemed to be to the measure. But when it begins from the body, it is said to be made to the body. See Fagundez chap. 44. Thus, therefore, if I sell you this whole cask of wine, however many pitchers it may contain, it will be a sale to the body. So chap. 44, n. 3 and 4 asserts. But chap. 47, n. 12 says it is a sale to the measure, as I said in question 11.

It helps, moreover, to know this distinction; for if the sale is made to the body, not only the risk of the thing, as well as the advantage, belongs at once to the buyer, but the whole thing also, at least by force of the contract, will be deemed sold for the price alone agreed at the beginning, whether it is found greater or smaller afterwards.

But if it was made to the measure, the whole thing is not deemed sold, but only the quantity expressed. See Fagundez chap. 44.

You ask secondly, What is the pact of the lex commissoria?

It is answered, That it is that by which the thing is sold under the condition that, if the price is not paid within such a time, the thing shall be as if not bought. So Molina t. 2, disp. 324 and 378; Fagundez chap. 45.

You ask thirdly: Whether the fruits of the thing sold, so long as it is not paid for, belong to the seller.

It is answered, That the fruits which hang on the thing sold at the time of the purchase belong, as to their value which they then have, to the buyer, unless it is otherwise agreed. This is the common opinion.

I say secondly, that as soon as the buyer has given the price to the seller, all the fruits which arise after the sale has been made, and their increments, belong to the buyer.

Note, That from contracts, especially from sale, there very often results a certain obligation which is called eviction, which is the loss of the just title by which one possessed a thing; as if I sold you a horse as my own which was in truth Peter's, and Peter takes it from you through a judge, and so evicts it; I, the seller, am bound by this eviction; for I am obliged to make good that horse to you, nor to leave you without indemnity for that eviction; and there belongs also to you, the buyer, against me the seller, not only an action for the price at which the horse was valued at the time of the eviction, but an action for interest and the damages that followed, l. si eum quaestio, Cod. de eviction., and leg. evicta re, ff. on the same title; and the Doctors, as gathered by Fagund. de contract. book 1, chap. 4, n. 19; Bassaeus, v. Venditio; Bonac. disp. 3, question 2, p. ult.

Truly, in all onerous contracts the party transferring dominion to the other is bound on both sides for the eviction of the thing, l. Libera, C. de sent: et interloc., and L. praedium, C. de evict.