Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. On the Nature of Sale and Purchase
- The contract of sale and purchase is defined: the exchange of price with merchandise, or conversely; or: an onerous contract of giving a determinate and just price for merchandise, or conversely. Thus each law, Roman and Gallican. Principles. I. From Roman Law. Sale is perfected by the consent alone of the parties, unless the parties agree concerning the making of a writing. But the dominion of the thing does not pass to the buyer unless delivery has been made. Indeed, dominion of the thing, even of a thing handed over to the buyer, is not transferred until the price is paid by the buyer, or offered, or at least either suretyship or credit concerning it is furnished. Hence before that, there belongs to the buyer only a right to the thing, but not in the thing. St. Lig., nn. 795 and 796.
II. From Gallican Law. 1. Any sale is perfected by the consent alone of the parties, without any legal formality. Therefore three things are required and suffice, namely the thing, the price, and consent. Consequently a writing is required only for proof. Hence dominion is transferred immediately and before the delivery of the thing. Nevertheless, an exception is made when the matter concerns things which are sold according to measure, or are customarily tasted; for then the sale is not perfect unless the thing has been measured or tasted. 2. When the sale exceeds the sum of 150 francs, so that it can be proved in the external forum, it requires an authentic or private writing (art. 1341).
- Questions. QUESTION 1. Is the seller bound to disclose the defects of the thing?
I answer. A distinction must be made; for defects are: 1. substantial, or only accidental; 2. hidden, or manifest; 3. besides, either the seller is questioned concerning them, or not. Hence:
I say 1. The seller in every case is bound to disclose all substantial defects of the thing, both in itself and relative to the known end of the buyer, or all those things which make the thing another thing, or render it harmful or notably useless; otherwise he is held concerning the price. Thus from every law.
I say 2. The seller, when questioned, is bound to disclose all hidden defects, even if they do not render the thing harmful or useless; for otherwise he would commit fraud. Therefore if the fraud was the true cause of the purchase, the contract is rescindable. But if the fraud was only incidental, so that the buyer, the defect having been known, still would have bought, but not at so much, the seller must restore only as much as the buyer would have bought it for less; because otherwise almost no sale could be made. But if the seller is not questioned, and the hidden defect does not render the thing useless, he must diminish the price in proportion to the defect. The reason is that otherwise the thing would be sold for more than it is worth.
I say 3. The seller is not bound of himself to show accidental defects of the thing which are of themselves manifest, provided he diminishes the price according to the proportion of the defect. The reason is that then no injury is done to the buyer, neither by reason of the price, which is diminished, nor by reason of the defect, which, if the buyer has not seen it, he ought to impute to himself. Except, however, unless the buyer is very ignorant, because with respect to him the defect is considered hidden. Except also if the seller is specially questioned concerning such a defect. St. Lig., n. 823.
- QUESTION 2. Is the seller held for all damages following from a defect of the thing sold?
I answer. He is not held except for foreseen damages, because he could not undertake an obligation concerning those things which he did not foresee even confusedly, as is clear from what has been said in the Treatise on Justice, n. 658.
QUESTION 3. To what is the seller bound with respect to the delivery of the thing?
I answer. 1. He must hand over the thing and its accessories to the buyer in the place and manner concerning which agreement was made in the contract; 2. he must hand over the thing at the appointed time at the appointed time; otherwise the buyer can seek rescission of the contract or indemnity 1; 3. he is bound to hand over the thing free from another's possession and from other unusual burdens.
1 The Author in this place sets forth the dispositions of Gallican law. For Roman law merely condemns to interest, but not to rescission of the contract.
- Q. 4. To what is the seller bound, if the thing perishes before or after delivery?
Resp. 1. He is bound to nothing if the thing perishes before delivery by a fortuitous event. The reason is, from Gallican law, because a thing perishes for its owner, that is, for the buyer. Thus also, unless it shall have been otherwise agreed, it must be held from Roman law, although the seller keeps the ownership of the thing until it shall have been delivered 2. - St. Lig. n. 828.
2 The risk of the thing belongs to the buyer from Roman law, both because every advantage of the thing also follows him, and because immediately from the perfected sale the seller begins to be debtor of the species (A. would have said, of the thing in its individuality), whom it pleased the law to free by the destruction of the thing. See Voet (Book 18, Title 6, n. 1).
Resp. 2. If the thing perishes before delivery through the fault of the seller, he is bound concerning the price and the expenses of the contract 3, because he ought to have guarded the thing as his own.
3 The seller is bound not only to those things, but also to that which is of interest. See Voet (Book 18, Title 6, n. 2). Note this same thing with respect to the following Resp. 3.
Resp. 3. If the thing perishes after delivery from an intrinsic defect which existed at the time of delivery, he is likewise bound to restore to the buyer the price received and to pay the expenses of the contract, if there are any 4. The reason is that he sold a useless thing, or a thing of no value; therefore there was in the buyer an error concerning the substance of the contract; therefore the contract is null by defect of consent and of the matter itself, which was appreciable by no price.
4 Here also must be recalled what we noted in the note to the preceding n. 883. Compare Voet (Book 19, Title 1, n. 21).
- Q. 5. What are the special obligations of the buyer, or to what is he bound by reason of the price, its interest, or expenses?
Resp. 1. He is bound to pay the price in the place, time, and manner determined in the contract; otherwise the seller can seek rescission of the contract, or, if he prefers, compel payment of the price.
Resp. 2. He is bound to pay interest for the unpaid price from the day on which he possesses the thing, if the thing is fruit-bearing, although accidentally it may have produced no fruits from the time of sale, unless the seller has given the buyer a delay for paying; because it is not equitable that the buyer have both the thing and the price at the same time. But if the thing is not fruit-bearing, he is not bound to pay interest, unless he has been in culpable delay and it has not been otherwise agreed.
Resp. 3. He is bound to pay the expenses made for carrying away the thing sold, for writings 5 or authentic acts; likewise for the expenses necessary for the preservation of the thing from the day of sale, unless it shall have been otherwise agreed.
5 What A. says concerning expenses for writings is proper to Gallican law, but not to Roman law, which provides nothing of this kind.
- Q. 6. Whether the purchase of a movable thing sold to another, but not yet delivered to him, is valid 6?
6 The question here usually is not really about the validity of each sale, but which buyer is to be preferred. See Lugo (Disp. 26, Sect. XI), who most rightly set up the question in the title itself: To whom is the thing owed, which was sold, the same thing, to two buyers at an interval?
Resp. 1. Affirmatively, if the thing is delivered to the second buyer, provided this one was in good faith. Thus from every law. But then the seller is bound concerning damages, if any have been inflicted on the former owner. - St. Lig. n. 827.
Resp. 2. Negatively, if the buyer was in bad faith, or if the thing has not yet been delivered to the second buyer. The reason is clear from the very terms of the law, from which the second buyer in good faith cannot prevail over the first except by reason of possession. - St. Lig. ibid.; Civil Code 1141.
- Q. 7. What force do earnest monies add to a sale?
Resp. 1. If they are attached only to the promise of sale, they do not confirm the contract, but each one of the contracting parties can withdraw. But in this case, if the one who handed over the earnest monies to the other withdraws, he simply loses them; on the contrary, if the one who received them withdraws, he must restore double, that is, the earnest monies received and, besides, a value equal to them.
Resp. 2. If they are attached to the sale itself, they do not make it conditional, but are an argument that the sale has been contracted; for they are computed as part of the price, or are given as security for payment; whence none of the contracting parties can withdraw when the other is unwilling. But in doubt whether they were added to the promise of a contract or to the contract itself, the lesser must be stood by, or they are judged to have been added only to the promise of sale. From Gallican law a promise of sale is not distinguished from the sale itself.
Q. 8. Whether, and how, incorporeal rights, certain or uncertain, or litigious, can be sold?
Resp. to the 1st. Incorporeal rights, such as notes, credits, usufructs, a right to an opened inheritance, if they are certain, can be sold or transmitted to another by any other title, just like other rights. Their delivery, moreover, is made by remitting the notes or other authentic writings.
Resp. to the 2nd. Litigious rights, or rights concerning which lawsuits are moved, can likewise be sold according to the proportion of the probability of a favorable outcome. - Thus all.
- Q. 9. When is the seller bound concerning eviction of the thing?
Resp. 1. He is bound concerning eviction as often as the buyer is juridically disturbed from possession of the thing bought 7. Except unless it shall have been otherwise agreed in the contract. The reason is that the seller then cannot transfer ownership of the thing (1626).
7 Understand this of a buyer disturbed from possession of the thing after the judicial taking away of the thing from a preceding right, either of ownership or of pledge, on the part of the claimant.
Resp. 2. He is also bound to refund the price to the buyer when it is discovered that the thing sold certainly belongs to a third party here and now claiming it; for the reason is the same: the seller could not transfer ownership of the thing which he himself did not have. But he is not bound to this in conscience before the sentence of a judge, unless it is wholly certain to him that the thing really belongs to that third party; nor is he bound easily to give faith to others asserting that it is so, since presumption favors him, and no sentence of a judge has otherwise intervened. - Recall what was said concerning eviction in the Treatise on Justice, n. 638.