§ III. On Sale under the Spear, or on Public Auction

999. • By the name of sale under the spear, in the stricter juridical sense, there is understood only that sale by which, from the edict of a judge, certain things for sale, for example the goods of a debtor unequal to paying, are publicly exposed to be bought by those offering more. Yet commonly by the same name there is usually designated in general any sale in which the thing to be sold is proclaimed by a crier, whose bidding is admitted, and the thing is adjudged to the last bidding. Everywhere they also call this sale public auction, because on the part of buyers it is perfected by bidding, so that the later bidder increases the price offered by the former.

1000. • Sale under the spear, or public auction, is in use everywhere among nations, is approved by legitimate authority, and of itself contains nothing unjust. Whence without doubt it is licit in conscience; yet with this law, that the price be observed which in such a sale can be judged just. But in a public auction, with the holy Doctor Alphonsus, that price can be judged just which is determined by the public concurrence of bidding buyers; even if it descends below the lowest vulgar price, or is elevated above the highest vulgar price; provided frauds are truly absent, which, alas, in this species of sale intervene rather frequently, both on the part of the officials, and on the part of the sellers themselves, and on the part of the buyers coming together:

1001. • On the part of the criers fraud principally intervenes: if they adjudge the thing to be sold to someone more quickly than usual, with detriment to the seller; or if they begin the sale before the time, so that, buyers being lacking, the thing is sold at a lesser price.

1002. • On the part of the sellers themselves fraud principally intervenes: 1° If they positively conceal the vices of the thing, or expose one thing for another, or a defective thing as whole, unless nevertheless in that case, in the usual manner, the defective thing is simply sold as it is.¹ Likewise 2° of itself speaking, i.e. with attention to the original character of public auction, if they bid by themselves or suborn others as fictitious bidders; or if they withdraw the thing when a lesser price is offered. Nevertheless accidentally, namely: by reason of the contrary practice, nowadays almost universal, we think that it is possible to pronounce somewhat more mildly; because by reason of this practice the public auction itself seems to have put on as it were another nature; so that the seller would now imprudently be condemned who would withdraw the thing thus, or would bid himself by himself; since it is permitted not irrationally to presume that buyers, knowing this and prepared to do the same in a similar occasion, renounce their right, and therefore no injury is done to them.

1003. • On the part of buyers fraud principally intervenes: 1° If they impede others by force or deceit, for example by lies or other unjust means, so that they do not increase the price; but not if they simply ask others by non-importunate prayers, as is commonly practiced. 2° If they procure that the bidding be ended more quickly than is fair, and the thing be adjudged to them before the time. Likewise 3° of itself speaking also, if buyers agree among themselves not to bid or not to offer more; except nevertheless, according to many, the case in which buyers were joined in society, or quasi-joined as brothers, friends, etc.; since in this hypothesis they make as it were one moral person, and it would be harder to exact from them that they bid against one another. But accidentally, - namely: where the practice assigned above is in force, that sellers themselves by themselves or by others bid, and withdraw their thing when a lesser price is offered; - I would not dare to accuse of injustice even buyers who agree among themselves by pact that they cannot bid beyond a moderate price; for if the seller, by bidding and withdrawing the exposed thing, can impede the price from decreasing too much, equity also seems to demand that he not complain that buyers agree lest the price be increased too much. But whether by the same title, that the seller withdraws the thing, etc., the buyer can still be excused who gives or promises money to the rest so that they abstain from bidding, and thus the thing can be bought by him at a moderate price, is a very arduous question, concerning which Authors everywhere are silent, while fewer, touching it in passing, stand for a negative response, to which also the more common sense and practice of the fearful seem to give support. Indeed mindful of the wise warning of St. Antoninus: that no one is to be condemned of sin unless it is sufficiently clear concerning it, before the fact I deter the aforesaid buyer from a suspect manner of acting of this kind, but after the fact I do not presume to condemn him absolutely. As regards the case, not rarely occurring, in which someone has accepted money from the buyer under the condition of not bidding, while in reality he had no intention of bidding; it does not seem that the money must be restored to the buyer, since at least the right of bidding, which he abdicated, is worthy of a price. Cf. n. 857, 1°. But let all these things be said for the sole hypothesis that the seller can withdraw his thing, etc., and by no means for the case in which the seller is not able to do that in fact or in law, as happens, for example, in judicial sale under the spear.

1004. To be noted. - For judging the diverse arts and machinations which nowadays are practiced in public auctions, it is necessary chiefly to attend to these two things, taken collectively:

a) To the very nature of such a sale, namely that public auction is as it were an aleatory contract, to whose justice it pertains that as to the advantages to be hoped for and the disadvantages to be feared, the condition of the seller on the one side and the condition of the buyers on the other side be of itself equal; so that fraud is judged to be present where the order of this sale is subverted by either party in such a way that this due equality vanishes; and then:

b) To the practice commonly in force somewhere; for although common practice, even of the more fearful, does not necessarily furnish an unanswerable argument for the justice of a contract, nevertheless regularly it furnishes a founded presumption of that justice, which the confessor certainly ought not to reprove unless its falsity is sufficiently clear, as we have already warned above with St. Alphonsus. Yet the reins would be loosened too much for buyers if, as a practical principle, it were assumed that sellers, knowing the arts accustomed to be committed, voluntarily subject themselves to the same by this very fact, that they have proposed their things to be sold by the mode of public auction.