Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ II. On Sale Under the Spear, or by Bidding
- Sale under the spear is that which is made through a herald, and in which the thing is assigned to the last bid.
It is lawful, whether it is done with the owner consenting or unwilling, or by public authority, whether it is bought below the lowest price or sold above the highest; because the public power approves the just price publicly constituted from the concurrence of buyers. Hence if buyers concur, the thing becomes more estimable; if they do not concur, it is held cheaper. - St. Lig. n. 808. (Civil Code art. 1686.)
- Questions. - Q. 1. Whether the seller can withdraw his thing, once the bidding has begun, if a lower price is offered?
Resp. Negatively, per se. The reason is that buyers publicly called to the auction acquire a certain right to the thing for sale, insofar as a tacit stipulation is made that it yield to the one offering more. Nevertheless, the rigor of this doctrine seems to be tempered where perhaps a contrary custom is in force, by force of which the contracting parties consent in this. For it seems hard to condemn for injustice a universal practice which the learned and even the pious hold without any scruple. - Thus Billuart, etc.
Q. 2. Whether the seller can send fictitious bidders, so that the price of the thing may increase?
Resp. It seems that it must be denied. The reason is that this appears too fraudulent to be excused, since it tends to deceiving sincere buyers and therefore inflicts injury on them, while they are the cause that the price increases from fraud, and not from the natural concurrence of things, namely from the free concurrence of buyers 1. - St. Lig. n. 808. - Hom. apost. n. 175.
1 If the seller does not wish to sell his own thing at a lower price, let him expressly set beforehand the price which he wants; otherwise let him keep his own thing for himself and not commit it to an uncertain lot. This indeed can also be noted with respect to the preceding question.
- Q. 3. Whether he whose goods are sold in favor of creditors can send friends to buy them in his own name?
Resp. 1. Affirmatively, at least with attention to common usage, if the bidding is voluntary, because this seems to follow from the fact that the seller can withdraw his own thing.
Resp. 2. Affirmatively a fortiori, if the bidding is compelled, or if it is done by public authority; for he whose goods are sold ought not to be of worse condition. Otherwise, he himself is not properly the one selling, since the sale is made while he is unwilling. Therefore.
- Q. 4. Whether the buyer can make a pact with others that they not bid, or not offer more?
Resp. Negatively, at least in the case of a compelled subhastation. The reason is that the seller has a right that the buyers be perfectly free, and that the increase of the price not be impeded. - St. Lig. n. 808. 2.
2 But indeed, if it is lawful to ask friends not to bid or not to offer more, as is said below (in the following number), it scarcely appears why the same friends cannot lawfully agree among themselves concerning that matter. For these do not impede others from bidding; if they are not present, this surely happens per accidens, just as it also happens per accidens that some one person, with no one at the same time concurring and contending, acquires a thing at a cheap price. See Diana, Tom. 6, Tr. 3, Res. 72-73.
Yet many except the case if the buyers are joined in society, or as if joined, as brothers, friends, etc., because they make as it were one moral person, and it cannot be required that they bid against themselves. Others also probably except the case if a usage is in force that the seller withdraw his own thing when a lower price is offered to him; because if he himself can impede the price from being too small, equity also demands that he not complain that the buyers agree so that the price may not be too greatly increased. - Bouvier, etc.
- Q. 5. Whether the buyer can ask others not to bid?
Resp. Affirmatively, because in this the right of the seller is not violated, since the liberty of bidding is not taken away, and the buyer uses his own diligence in order to consult for himself. Nevertheless, the requests ought not to be importunate. - See St. Lig. ibid. - See Cases, n. 951 and following.