75. On Sale

1. Tullius buys a house from Marcus for the price of 60,000 lire, with the pact, however, that the house would be handed over only after a year, namely, when the time of a lease of the same house already made to others had elapsed; and then also the handing over of the price would be made.

The contract having been perfected, and a public instrument also having been made, after some months the whole house is burned by an accidental fire. Hence, the year having elapsed, Tullius refuses to stand by the contract.

2. Titirus, from the abundant flock of sheep which he had, sold one hundred sheep, to be handed over to the buyer after autumn, and then also he himself would receive the price. But by a fatal stroke of lightning the whole flock perished. But the buyer at the established time demands one hundred sheep from Titirus.

Q. What as to the case?

R. Tullius must altogether stand by the contract, and is held to pay the price. For by Roman Law, although, the thing not having been handed over and the price not yet paid, the seller keeps the ownership of the thing, and the buyer does not acquire a right in the thing, but only a right to the thing; nevertheless, if the thing perishes before delivery, and it was certain and determined individually, it perishes for the buyer; for the risk of the thing pertains to him no less than its increase. I. M. 1127. But by more recent law, Italian and French, the contract of sale having been perfected by consent furnished on each side, the ownership of the thing pertains to the buyer, and for him it perishes, or becomes worse, just as for him it increases and fructifies. I. M. 1128.

If Titirus had had only one hundred sheep, and had sold them individually, then, as in the preceding case, so in the present, the buyer would have had to sustain their destruction and pay the price. But since Titirus had an abundant flock of sheep, and from the whole flock of sheep sold only one hundred sheep, the sale then was not of a thing certain and determined individually, but of an indeterminate thing. But the risk of a thing indeterminate individually pertains to the seller. Hence, if from the whole flock one hundred sheep have survived, Titirus must hand them over to the buyer, the price being received. If fewer have survived, he must hand them over to the buyer also, the price being received but diminished in due proportion. If finally no sheep has survived, Titirus is indeed not held to buy one hundred sheep and hand them over to the buyer; for this was not the agreement made, but it was merely the sale of one hundred sheep from the whole flock; and since that flock perished without any fault of Titirus, delivery has become impossible; and therefore neither is their price to be paid by the buyer. I. M. 966, 1127, 1128; G. 908, 936-938.

3. A merchant buys several casks of wine, the price being established for each measure of wine; he gives earnest-money to the seller, and marks each cask with his seal. The casks are carried to his shop, and after a month he himself tastes the wine and finds sourness. The merchant then wishes to return the casks to the seller as if unbought. The seller refuses to receive them as sold, and says that the damage must be sustained by the buyer.

Q. What as to the case?

R. It is indeed certain that the sale of that quantity of wine, the price being established for each measure of wine, depended on the measuring of the wine; and consequently it was not made per aversionem. But that measuring ought not to have been lacking in the case, since those casks of wine were even carried to his shop. - As to tasting, there is no doubt that, if it was explicitly added as a suspensive condition of the sale and purchase, before it the sale and purchase is not understood to be perfected; and the buyer is held to taste. And if he does not wish to taste, it is the same as if he tastes and approves. If that condition was not explicitly added, it is tacitly present, because the question concerns a thing which is not customarily bought unless it has first been tasted and approved; and because such is the law, there is altogether no sale and purchase, and the buyer can withdraw and not taste. - But neither is there any doubt that someone can renounce that tasting, as when someone writes to an absent merchant that he should send him such a quality of wine. Tacitly he renounces tasting, and if truly that quality of wine has been sent, the sale and purchase is perfected.

Moreover, that merchant seems altogether to have renounced tasting; for the casks of wine were carried into his shop, and therefore, delivery of them having been made, the risk of the same no longer pertains to the seller, but to the buyer. For delivery is an argument of acceptance of the thing. Moreover, he marked the casks with a seal; concerning which indeed the Doctors doubt. For some say that this is done not that tasting be renounced, but lest other wine be introduced into the cask, or one cask be substituted for another; and therefore, the sale not yet being perfected, the risk is still the seller's. But others say that by the very fact that the buyer proceeds so cautiously and diligently in signing the casks, he is presumed to have tasted the wine or to have renounced tasting; since by the deed of thus preventing alteration and change of the wine, he shows that the wine pleased him, and that he has already approved it. And thus also it is said in L. 74 de Contrahenda emptione: "When the keys have been handed over, the possession of goods stored in warehouses seems to have been handed over, if the keys have been handed over at the warehouses: this being done, immediately the buyer obtains ownership and possession, even if he has not opened the warehouses; but if the goods were not the seller's, usucapion will immediately begin." - L. 1 de Peric. et comm. r. vend.; Troplong, della Vendita, n. 101 seqq.

Finally, since the merchant kept the casks with himself for a whole month and delayed in measuring and tasting the wine, who indeed can any longer doubt that the aforesaid merchant must sustain the damage of the sourness, since that defect of the wine could well have been contracted in his own warehouses in so long a space of time?

4. Asprenius, having entered a wine shop, bought for 30 lire a cask of wine, which the merchant said contained fourteen cadi. Asprenius marks it with gypsum, closes it with cork and pitch, and marks it with his seal. The cask is carried to his underground cellar. After a month Asprenius, measuring and tasting the wine, finds sixteen cadi. Must Asprenius undergo the damage of sourness, and besides pay the price of two other cadi?

R. The sale of the cask, as appears from the case, was made in bulk, and was not conditioned; and its price was certain and the thing sold determined. It is indeed true that the quantity of wine contained in the cask was added by the seller; nevertheless that declaration of the seller does not make a condition, but only a demonstration of the quantity sold purely and fully, which gives the buyer the right of demanding the demonstrated and declared quantity, but took away absolutely nothing from the certainty of the sale. Wherefore, that the contract be perfect, measurement was not necessary. Hence, since the seller sold the whole cask, although more cadi were contained in it than were declared by him, he has no right to demand a supplement of price. That declaration was wholly for the grace and favor of the buyer, not of the seller himself, insofar as the seller himself ought to have known well the capacity of the cask. It is not likely that the seller was ignorant of the measure of his own thing. "Nor do you permit yourselves to dwell on empty objections, so that he may plead to himself unknown strengths of places, who ought to have known the strengths, merits, and emoluments of a familiar thing." L. Quisquis de Rescind. vendit. Cod. And if in fact he was ignorant, this ignorance in a thing well known to himself, and in his own proper pact, merits no excuse. Wherefore, because the sale was perfected, Asprenius is held to undergo the damage of the sourness; because it was made in bulk, he does not owe the price of the two cadi. Cf. the preceding case.

5. Albertus sold a house to Bonaventura. Then after a few weeks he sold the same house to Bonavenia, who immediately transcribed the act of sale and purchase. After ten years, Albertus being dead, the two buyers learned that the same house had been sold twice, and they ask whose house it now is.

Q. What is transcription? - 2. What as to the case?

R. To the 1st. Transcription is the presentation of a copy of acts, so that they may be written in the registers of the Hypothecary Office of the place where the goods of which there is question are situated, or where the hereditary succession was opened. C. I. 955, 1938.

To the 2nd. The house belongs to Bonavenia. For first, one who in good faith acquired some immovable thing or a real right to an immovable thing prescribes it and makes it his own after ten years from transcription. C. I. 2137; I. M. 922. Moreover, transcription obtains force even against a third party, even if this one is prior in acquisition, if nevertheless he did not transcribe the contract. C. I. 1942; I. M. 934. Therefore Bonaventura has only a personal action against Albertus; but since he is already dead, he will be able to seek back from his heir the price paid, and also compensation of damages. C. I. 1225 seqq., 1462, 2076, 2094, 2097.

6. "Basilius, a pastor, for the price of 5 francs bought from a simple rustic an old panel of the Blessed Virgin Mary, glued together by long-standing smoke. The rustic rejoices, who could never have sold this image even at a much lower price. But the pastor hastens to place it, cleaned in whatever way, in the parish church. But a few days having intervened, behold, a most skilled English painter, when by chance he had entered the church and had looked at the image, immediately offers six thousand francs for it. For he recognized that it was a genuine work of Raphael. At first the pastor wonders and is stupefied! Nevertheless he judges that a more careful inquiry must be made concerning the price of the panel, and finally obtains from the buyer 20 thousand francs, but soon, anxious, he began to doubt whether he must restore the whole profit to the rustic or not.

Q. Is the pastor held to restitution toward the rustic?

R. Basilius the pastor is by no means to be disturbed. For this panel, so precious, was not valued by either contracting party at more than the price of five francs, nor did fraud or deceit intervene in the contract." Thus Fr. Gury 925. But this reason does not seem convincing. For, from the same Fr. Gury 782, if someone sells at a cheap price a diamond stone, which he considers crystal, to a buyer who also himself thinks such to be its value, the contract is not valid; and nevertheless also in that case a thing so precious is not valued by either contracting party at more, and neither fraud nor deceit intervenes in the contract. Indeed, in that case of the ring the contract is not valid on account of substantial error, which nevertheless, says Fr. Gury 925, is denied in the other case of the panel, "because the error is not concerning the substance of the thing, but rather only concerning its price." But this is not true; for therefore there was an error, and so grave an error concerning the price, because there was an error concerning the very substance of the thing. An error concerning the substance of a thing is not merely an error of the material thing considered in itself, but an error of the thing as estimable by price. Otherwise, indeed, neither in the sale of that crystal stone would there have been substantial error. For the seller saw well that material stone; likewise the buyer saw it well; both erred only as to its preciousness, or its estimation in the ratio of price. For if they had known that it was a precious stone, namely not to be estimated at a common price, whether crystal, glass, or diamond does not matter, the owner certainly would not have sold it at a cheap price. Similarly, in the case of the panel, the rustic and the pastor see well that material panel, but they err as to its preciousness, or its estimation in the ratio of price. Indeed more, if truly that panel is a work of Raphael, in common opinion itself a greater error is certainly judged, as to the substance of the thing, in the case of the panel, than in the case of the stone, since that panel is of far greater estimation, from common opinion.

Nor indeed can the aforesaid sale, in the case, be held as valid from another head, as an aleatory contract by which each contracting party committed himself to the danger of lot. For, as is elicited from the very wonder and stupor of the pastor, after the truth of the thing was discovered, and from his very anxiety, there was no suspicion of the thing; and both the rustic thought that he was truly selling a common and cheap panel, and the pastor judged that he had bought an altogether common panel, the work of any obscure painter.

Fr. Gury, in the two following cases, n. 928, 930, in which the matter concerns old precious coins and an old gold coin, the value of which is unknown by the seller but not unknown by the buyer, says that the sale is invalid. And at n. 928 he says that there is a difference between that case of the coins and the preceding case of the panel, because in this case of the panel the contracting parties are equally in error concerning the value of the thing, but not so in the case of the coins. But that both contracting parties are equally in error, this indeed does not render a contract valid if the error is substantial, unless the contract is aleatory. On the contrary, the error of the seller alone does not render a contract invalid unless the error is substantial. Wherefore, if the contract is invalid when only the seller errs, it remains invalid even if the buyer also errs with him, unless, by common consent, they commit themselves to the danger of lot. Hence, when the matter concerns substantial error, this principle is not true, which again at n. 930 Fr. Gury affirms as to another contract of an old gold coin, namely, that the sale of extraordinarily precious things held for minimal value is probably valid, if each contracting party is ignorant of the true price of the thing. The sophism is in this, that there is not an error of the substance of the thing sold, but an error of its price. For truly, if from an error of price an extraordinarily precious thing is sold for minimal value, now the error of that price evidently shows of itself and includes an error concerning the very substance of the thing sold. For if there were not such an error, would anyone knowingly and willingly sell AN EXTRAORDINARILY PRECIOUS THING AT A MINIMAL PRICE? I. M. 1242.

7. Florentinus, a merchant, in a short time has become rich; while other similar merchants labor under great straits. Florentinus buys goods of the best quality and in great quantity. But he sells them at the lowest price, content with a modest profit in each sale; while on the contrary all the other merchants sell those goods of inferior quality and at a higher price.

Q. What as to the case?

R. Florentinus certainly is by no means guilty of injustice toward the buyers. Nor is he guilty of injustice toward the other merchants. For they themselves, if they wish, can use the same industry. Then, just as Florentinus can give his goods away, so also he can diminish their price. Wherefore Florentinus uses his own right. G. 968; I. M. 1294.

But what if Florentinus mixed other inferior goods with good goods, without the defect appearing; or handed over the best goods, and at the lowest price, but afterward detracted so much from weight and measure, that in reality he sold them at a middle or highest price? He would indeed act unjustly; for by lie and fraud he would induce one to buy at a higher price than was agreed. Wherefore he would be held to restitution. La-Croix 955; G. 940; I. M. 1148.

8. When ecclesiastical goods exposed by the State domain were put up for public sale, under the hammer, Amandus took part in the bidding for them, that he might make extraordinary profit from it. But Alexius, present there, that he himself might be able to acquire the aforesaid goods, offers Amandus a conspicuous sum of money, that he withdraw from the bidding. Amandus accepts the money, and Alexius buys the goods.

Q. What as to the case?

R. 1. Amandus incurs no censure, since he buys nothing, occupies nothing, usurps nothing, and also cooperates in nothing. Moreover, if one who actually takes part in the bidding is immune from censure if the goods are not adjudged to him, S. Poenit. 15 Apr. 1873, much more is he immune who withdraws from the bidding. But Alexius incurs the censure, unless he has sought due permission from ecclesiastical authority. I. M. v. 2. n. 1202.

2. Amandus can keep the money received. For it certainly is not to be given to the Church, since it does not come from the ecclesiastical goods themselves, or from their sale, but from another contract entered into only on the occasion of that sale. Nor indeed is it to be given to the Church on account of harm done to it; for Amandus cooperates in no way in this damage, since he in no way cooperates efficaciously in the purchase. Whence it is that Alexius alone, the buyer, is held concerning the damage of the Church. And here it must be noted that, if Alexius resells these goods and profits thence, he is held to restore also this profit, since it comes from the goods themselves and from their sale, S. Poenit. 1 June 1869.

3. But if Alexius has obtained permission from the Holy See to buy those goods, Amandus then is held to restore the money to Alexius. For Alexius in such a case represents the owner himself, who has the right of vindicating to himself his own thing, without being able to be hindered by another extraneous person. M. E. v. 3. p. 1. p. 73.

9. Antoninus bought a house with a garden for the price of 100,000 lire. The house was valued at 80,000 lire; the garden was valued at 20,000 lire. After three years from the completed purchase, Antoninus suffers eviction of the garden. But, since the price of the garden was increased, so that it is now worth 40,000 lire, he himself demands this sum from the seller, who consents to pay only 20,000 lire.

Q. What as to the case?

R. Antoninus has the right that the thing bought and evicted be compensated to him according to the valuation which the same thing has at the time of eviction. C. I. 1489. Wherefore he can by right demand 40,000 lire for the evicted garden. - But what, in the case, because Antoninus would have wished to buy neither the house nor the garden if he had foreseen the eviction of the garden alone? Then it would be free for him to dissolve the contract, and to use the redhibitory action, by restoring the whole thing to the seller, and demanding from him the price paid. C. I. 1492; I. M. 1133.

10. Bertulfus sold a house to Cornelius for the price of 20,000 lire. Cornelius made many expenses in restoring it. When the restoration was completed, he had to sustain a lawsuit with a certain Maglorius, by whom finally, by sentence of the judge, he was evicted. Cornelius claims against Bertulfus. But the latter wishes to restore nothing to Cornelius, saying that the sale was made absolutely, and that in the contract no mention at all was made of eviction to be furnished.

Q. What as to the case?

R. Cornelius has the right that he be rendered altogether indemnified by Bertulfus, even if no mention at all was made in the contract of eviction to be furnished. C. I. 1482. Indeed more, although it had been agreed that the thing was in no way to be secured, nevertheless, if eviction occurs, the price must be restored by the seller, unless the buyer at the time of sale knew the danger of eviction and took it upon himself.

An agreement concerning the thing not to be secured exempts the seller only from compensation of damages. C. I. 1484, 1485. But since in the case no contrary agreement was made, Bertulfus is held to restore the whole price of the house sold, even if its value had been diminished, or the house itself had been deteriorated, unless Cornelius had received something from that deterioration itself. C. I. 1486-1488. But from the case it appears that the value of the house was rather increased; in such a case Bertulfus must pay also this excess of the price of sale, although this increase of price happened independently of every act of the buyer. C. I. 1489. Likewise from the case it appears that the house was improved. Wherefore Bertulfus is held also to compensate the necessary and useful expenses made by the buyer; indeed also voluptuary expenses, if he himself was in bad faith. C. I. 1490, 1491. Moreover, he must compensate Cornelius for all fruits, if Cornelius was compelled to restore them to the owner of the thing. He must also compensate all expenses which Cornelius had to make for the contract of purchase, for sustaining the lawsuit with the owner of the thing, and any other damages which perhaps Cornelius suffered. C. I. 1486; I. M. 1131, 1133, 1137.