Question XI: Whether a thing sold, not yet delivered, perishes to the buyer

I SUPPOSE that if the thing has already been delivered, it will perish to the buyer. See Molinam disp. 366. The reason is, because by delivery ownership has been transferred to the buyer. But a thing perishes to its owner and deteriorates, as the Doctors note, in l. Quod si ff. de periculo, et commod. rei vendit.

I ASSERT first, that if the thing has not yet been delivered, and is determinate, as this horse, this ox, etc., it perishes to the buyer. So the Doctors commonly, with Fagundez cap. 47.; for thus do the Laws dispose, and deservedly; for the right has already been acquired by the buyer, and the very sale of a determinate thing, the law of nations being regarded, is sufficient to transfer ownership to the buyer; for that it is not really transferred before delivery comes from the disposition of the civil law, which for certain reasons, to avoid lawsuits, so established; yet the civil law does not thereby wish to prevent the commodities and incommodities of the thing from belonging to the buyer.

I EXCEPT, however, first, if the thing perishes or deteriorates through the fault of the seller, for instance if through gross or light fault he does not guard the thing.

SECOND, if the seller was in default in delivering the thing sold; for then he himself is at fault, as D. Bonav. notes in speculo animae, cap. 2. ad finem. Then therefore it perishes to the seller, as is gathered from l. illud, ff. de periculo, et commodo rei vendit. and they teach, Less. l. 2. cap. 21. dub. 12. num. 96. Sylvester v. emptio, quaestione 3. Molina loc. cit. Fagundez num. 4. Bassaeus num. 23.

THIRD, if it has been so agreed in the contract; this is taken expressly from l. in venditione, ff. de per. et com. rei vend. and they teach, Molina loc. cit. Fagundez num. 6. Bassaeus loco cit.

FOURTH, when the thing is confiscated on account of the crime of the seller. Thus the authorities cited above hold.

FIFTH, if the seller in contracting said something whereby the buyer would believe the thing to be durable. Likewise if the seller knew the thing would not last, and did not warn the buyer, l. si vina, ff. de pericul. et commod. rei vend. See Molinam loc. cit. Fagundez num. 8. Bassaeum loc. cit.

I ASSERT second, that if the sale be made in genus, as the Jurists say, or if the thing sold be indeterminate, as the Theologians say — for instance, if from his flock ten sheep, from the herd two cows, without designating them — the flock or herd perishing, it perishes to the seller; Less. l. 2. cap. 21. dub. 11. num. 97. Molina loc. cit. Fagundez num. 10. cap 47. It is clear from Leg. In ratione, §. diligenter, ff. ad l. Falcidiam, and Leg. Incendium, Cod. si certum petatur.

The REASON is, because from such a purchase the buyer has acquired only the right that ten sheep be delivered to him, but no right in particular.

They commonly ADD third: when some thing to be measured is sold whole and entire, as this whole cask of wine, this whole granary of wheat, this whole cask of oil, for a certain number of regali for every measure: if they perish before they are measured, they perish to the seller; but once measured, to the buyer; Less. l. 2. cap. 21. dub. 12. num. 97. Molina loc. cit. and others with Fagundez num. 12.

However, Baldus, and Paulus de Castro ad l. 2. C. de per. et com. rei vendit. hold that such a sale is to the body, not to the measure, except when certain measures are sold by deceit or by the heap; and therefore it perishes to the buyer even before measurement. Others reject this, with Fagund. num. 12. and others there, and Bassaeo, num. 13. Yet Fagund. himself fights with himself, as I shall say, quaest. 13.