§ 1. ON SALE IN GENERAL

1118. DEFINITION. Purchase-sale is an onerous contract by which it is agreed that one party, the seller, hand over some thing for a price to be paid by the other party, the buyer.⁰⁴

For the substance of this contract three things are required: 1. mutual consent of buyer and seller; 2. some thing as merchandise; 3. money as price.

If a thing were given for a thing, this would be exchange; money for money, it would be exchange of money. If a thing were bought so that it might be sold with profit, there would be negotiation.

We treated above of the conditions of legitimate consent, and of the vices opposed to it (n. 1044 ff.); a few things which are proper to sale must be added here.

1119. PRINCIPLES. I. From the law of nature, purchase-sale is perfected by consent alone. For not the handing over of the thing itself, but the obligation of handing it over, belongs to the essence of this contract. - Hence, sale is perfected as soon as it has been agreed between the parties about the thing to be handed over and the price to be paid. Yet the parties can stipulate that the contract is not perfected unless solemnities are employed, for example writing or handing over made. For the external forum, an instrument is required for proof in many cases where another proof is not admitted (III, 795).

But the EFFECTS of consent alone, when the handing over of the thing has not followed, are not the same in all laws. In AUSTRIAN⁰⁵ and GERMAN⁰⁶ Law, ownership of the thing is transferred to the buyer by handing over alone; but meanwhile, with certain cases excepted, peril and utility remain with the seller. If it is a question of land, its registration in the land book is required in German Law for transferring ownership.

In FRENCH,⁰⁷ ITALIAN,⁰⁸ SPANISH,⁰⁹ and ENGLISH¹⁰ Law, ownership of the thing and its peril and benefit pass, by the consent alone of the parties, to the buyer, who therefore has a real action for obtaining possession of it. Yet if things are usually tasted beforehand, for example wine, or if they are handed over for trial, for example a horse, the sale is not perfected before the thing has been tasted or tried (cf. n. 1122, 3).

1120. II. Those alone can sell or buy who have power to furnish consent, and are not declared incapable by law. Now, apart from the general incapacities concerning which above (n. 1038), the following are proper to purchase-sale:

From Law universally in force,¹¹ all those upon whom it falls to protect the rights of others are declared incapable in part, such as parents, tutors, curators, administrators of communities. The reason for the incapacity is danger of prevarication to the detriment of pupils. Likewise, magistrates and other officials of the court are prohibited from buying litigious rights which must be defined before their own tribunal.

For the same reason, those who have ceded their goods are commonly prohibited from selling; and their sale is invalid by full right, unless it is a question of those things which, from n. 1023, are left to their discretion, and therefore the buyer is held to restitution. - Similarly, from FRENCH and SPANISH Law,¹² purchase-sale between spouses is prohibited, with a few cases excepted.

1121. III. Consent given earlier impedes later consent from being valid. The reason is that earlier in time is stronger in right. Hence it is not licit to sell a thing successively to two persons (Ami du Cl., 1910, p. 680; 1911, p. 346). - Yet if the thing has been handed over to the second buyer, it belongs to him, provided he bought in good faith and the purchase was made in a place where ownership of the thing is transferred by its handing over alone; and this has force both for movable and immovable things, because handing over confers right in the thing. On Germany, see n. 1119.

But in places where consent alone transfers ownership (cf. Spanish Code, 1743), it has force for movables alone, but on account of another reason, namely because, with respect to movable goods possessed in good faith, possession is to be held as title (cf. n. 936). Yet St. Alphonsus adds (III, 827): The second buyer, although he is of bad faith, is not held before the sentence to restore the thing to the first buyer, unless perhaps he himself induced the seller to sell the thing to him second. - As concerns the deceived buyer, he, in every Law, has an action against the seller for obtaining reparation of the damage inflicted on himself.

IT IS ASKED. What are the effects of EARNEST MONEY which are appended to the contract?

Resp. Earnest monies are defined as that money which sometimes the buyer, or tenant of a house, hands over to the seller, or lessor, as though by way of pledge for securing the contract. - Earnest monies are appended either to a promise of sale, or to the sale itself. If the former, each of the contracting parties can withdraw, namely he who gave the earnest monies by renouncing them, and he who accepted them by restoring double. - If the latter, earnest monies are generally an argument of sale, not indeed conditional, but already contracted; for they are usually given for part of the price, or as security of payment. Whence, none of the contracting parties can, with the other unwilling, withdraw from the agreement. Except if custom or a special agreement has established otherwise (III, 794; H. Ap., X, 166; Spanish Code, 1454; German Code, 336; Linz. Quart. Schr., 1905, p. 127).

Note. Conventional penalty, which is often annexed to a promise of sale, differs altogether from earnest monies. On this see 1955, where more abundantly on this question. Accommodate to our argument the principles established there for betrothals. Cf. Austrian Code, 609; German, 359.

The principles to be established refer to the thing to be sold, to be handed over, and to be secured.

1122. PRINCIPLES. I. So that there may be a valid and just contract of sale, its object must be a thing placed in human commerce, proper to the seller, determined, and physically or morally that which is sought.

1. It is required that it be placed in human commerce. Therefore any thing estimable by price can be sold, whether corporeal or incorporeal, as rights from a chirograph, credits, etc. (n. 852).

By special laws the sale of poison, of writing provoking to sedition, etc., is not licit. Such a sale, when the required circumstances are lacking, is illicit, as is clear. Recall the things said n. 1035, 2.

2. That it be proper to the seller. For the sale of another's thing is invalid with respect to transfer of ownership; yet with respect to a buyer of good faith it produces various juridical effects: for example, when the thing has been handed over, it confers on him possession apt for prescribing, and other benefits of a possessor of good faith (cf. n. 849, 937).

3. That it be determined, at least from the circumstances, so that the thing sold is truly individual and distinct from every other.

Hence, if wares are sold according to their weight, number, and measure, the sale is not perfected unless the quantity in weight, number, or measure has been determined. Therefore the thing stands at the peril of the seller. But if the sale is made by aversion, en bloc, when namely the whole merchandise effects as it were one determined body and is sold for a certain and defined price, the sale is perfected from the agreement itself, and from that point of time it stands at the peril of the buyer.

4. That it be physically or morally that which is sought. Otherwise there would be a substantial error, or at least such an error as would furnish a right to rescission. Recall the things said n. 1045.

The thing remains morally the same as that concerning which agreement was made if it is equally good, equally useful to the buyer. Then the contract is not made invalid, because the buyer is not frustrated of the end intended by himself.

1123. The obligations of the seller and the diligence of the buyer chiefly refer to THIS FOURTH CONDITION of the saleable thing. For the thing to be sold will then be physically or morally the object of a just contract if, with respect to substance, quantity, and quality, no fraud, no error, no vice, at least appreciable, intervenes.

Therefore let the following rules be given, for a more subtle explanation of the matter:

FIRST RULE. If the vice is concerning SUBSTANCE, for example if tin is sold for silver, water for wine, etc., the contract certainly is null, and the seller is held, at the will of the buyer, either to rescind the contract or to restore the excess of the price; and moreover to compensate the damages following from his deception, provided they were in some measure foreseen. Likewise, if quality has passed into substance, for example if the buyer expressly said: "I do not want wine, if it is not old" (III, 819).

Advert that here it is a question of a thing substantially vitiated relatively to human use and to the end for which it is bought. Whence it is probably not unjust to sell quid pro quo, as apothecaries are accustomed to do, provided that what is handed over is certainly of equal utility and the price is diminished; - likewise, to sell at the common price a thing which in itself is more perfect, but has another thing of worse condition mixed in; suppose better wine, which after mixture with water does not become worse than common wine; provided the buyer does not buy it for preserving, because wine mixed with water is easily corrupted (III, 820; H. Ap., X, 185).

SECOND RULE. If the vice is concerning QUANTITY, that is, concerning number, weight, or measure, the damage must be repaired; but the contract has force, except in the case in which deceit gave cause to it (cf. above n. 1047, 3).

Yet if the seller could not obtain the just price, for example on account of an unjust legal rate or an unjust monopoly of buyers, it is not improbable that the seller can diminish from the measure only so much as is required so that he may perceive the lowest just price; for thus he justly frees himself from unjust vexation. Yet hallucination in this matter is to be guarded against (III, 822; H. Ap., X, 186).

THIRD RULE. If the vice is concerning QUALITY, for example if wine is corrupted, cloth burned, one must distinguish, with account had of the circumstances. For the seller is either questioned in species or in general, or is not questioned. 1. When questioned in species whether the thing has a certain defect, the seller is held to manifest whatever vice; otherwise the sale is null, on account of error which, by reason of the circumstances, easily becomes substantial; or at least the sale is rescindable at the will of the buyer, on account of the deceit which the seller used. 2. When not questioned, or questioned only in general, he is held unequally according as the vice is patent or occult, notable or light (III, 823).

a) If the vice is patent, so that it can generally be known by anyone with common diligence, for example if a horse is one-eyed, he is not held from justice to manifest the defect; for then the thing itself speaks. Therefore he can leave the buyer, with the peril of erring, to his own judgment.

Except if the ignorance of the buyer is manifest, for example because he is inept, a child, etc.; for then, in relation to him, the vice is truly occult (H. Ap., X, 187).

b) If the vice is occult and at the same time notable, that is, if the vice, not knowable by common diligence, renders the saleable thing harmful, useless, or notably less useful for the end for which, in present circumstances, it is commonly accustomed to be bought, - the seller is held from justice to disclose it; for otherwise the buyer is not considered to consent to the purchase, or at least to the price of the purchase. Wherefore, either the contract is rescindable at his will, or at least it must be reduced to equality.

But when a vice is to be held as notable must be determined from various circumstances of time and place, from custom, and from the Law itself, which recounts various vices of this kind.⁰¹ But if the seller protests that he does not wish to render account of any defect, but wishes to sell the thing as it is, he is held to nothing; for then the contract is considered aleatory. Hence, deservedly tolerated is "the custom which prevails somewhere, especially in great markets, that animals be sold in this way, even if the vices are most occult. The reason is that, for taking away lawsuits, on account of the common good, this can be sufficiently rendered honorable by custom; provided, it must be understood, that the thing is not sold beyond at least the highest just price for which the thing is worth, with account had of that occult vice" (III, 823; Spanish Code, 1493).

c) If the occult vice is light and of small moment, the seller is not held from justice spontaneously to declare it, provided he preserves a proportioned price. For then buyers are not reasonably unwilling, because otherwise negotiation would become too difficult, with detriment of society.

For the rest, no buyer is for that reason induced into error, since an artful manner of acting of this kind is sufficiently known to all; as it is known to all that merchants are accustomed somewhat to paint their wares and to expose the better ones exteriorly (Linz. Quart. Schr., 1885, p. 101).

Note. Sometimes, when an obligation of justice does not exist, there can be an obligation of charity of warning the buyer, lest by carelessness or ignorance he be the author of damage to himself or to others, for example that wine not be preserved long if it is not apt for this, etc.

1124. II. The seller is held to hand over the thing sold; that is, to remit it into the power and discretion of the buyer. But this obligation can cease from a legitimate cause, for example because the buyer does not pay the price to be paid before handing over, or because there supervenes a reason of doubting whether he can pay.⁰² But the obligation of handing over imports the obligation of preserving the thing well meanwhile.

Moreover, the seller is held to hand over to the buyer the thing and its accessories: 1. in the place and manner concerning which agreement was made in the contract; 2. at the prefixed time; otherwise the buyer has a right to rescission of the contract and to reparation of damages, unless the delay proceeded from the deed of the buyer, or from fortuitous chance, or greater force; 3. in the state in which it was at the time of sale; otherwise what was agreed upon would not altogether be handed over; 4. according to the measure expressed in the contract.⁰³

The fruits of the thing sold and not handed over belong to him who is held to bear its peril (III, 798). Cf. the things said n. 1119 and the things to be said n. 1131.

How the matter must be arranged if one or another of the aforesaid conditions is lacking must be taken from civil Law.

1125. • III. The seller is held to furnish the buyer security of the thing, that is, to make him secure concerning peaceful possession of the thing and concerning its utility.⁰⁴ The reason is that, from the very nature of the contract, the seller does not acquire a right in the price unless he has placed the merchandise in the power and discretion of the buyer. But this is not done, at least perfectly, when the buyer, on account of causes existing before the sale, is disturbed in possession of the thing through eviction; or when, on account of occult vices, he finds it inept for its natural end, or the end expressly declared to the seller; which vices in Law are called redhibitory vices (III, 800). These things must be explained more fully.

1126. Questions. QUAER. 1. What is EVICTION, when and how is the seller held concerning it?

Eviction is the legitimate disturbance of the buyer in possession of the thing bought, which either totally or partially is vindicated by the true owner, or by another having right in it. Thus, for example, Paul sells his field to Peter; James proves that this field is his own, or is burdened by a hypothec, and the judge decrees that the said field must be returned to James: in this case eviction is had with respect to the buyer, who is despoiled of the thing bought by himself.

The seller is held concerning eviction if the cause of eviction, existing at the time of sale, was not declared to the buyer. But the seller can stipulate that he not be held concerning it. Yet this is not admitted in favor of a seller of bad faith, because "pacts which contain a shameful cause are not to be observed."⁰⁵ But if "by the malice or fault of the judge, or by the force of another, or by negligence of the buyer, the thing is evicted, the seller is held to nothing; for fortuitous peril belongs to the buyer" (III, 800, fin.).

By the law of nature, a seller of good faith is held to return the price accepted, insofar as he has been made richer. A seller of bad faith is held to preserve the buyer altogether unharmed.

By Positive Law, a seller of bad faith is always held to render the buyer unharmed. The same obligation also lies on a seller of good faith, except nevertheless the case in which the contrary was agreed. But no reparation of damages is owed to a buyer of bad faith.

QUAER. 2. What are REDHIBITORY VICES, and how is the seller held concerning them?

Redhibitory vices are called occult defects, not known to the buyer, existing at the time of sale, which wholly impede the natural use of the thing, or the use declared to the seller, or so diminish it that the buyer would not have bought it, or would have bought it for less, if he had had knowledge of them. Of this kind are, for example, mange of sheep, asthma of horses, rancidity of pigs, etc.

The seller is held concerning redhibitory vices, even if he was ignorant of them. He is obligated, at the will of the buyer, either to rescind the contract or to restore part of the price, according to the estimation of experts. Yet there is a great distinction between a seller of good faith and a seller of bad faith, as you will easily gather from the things said n. 936 and n. 941.

Note. The obligations of the buyer, with respect to merchandise, we shall explain below (n. 1131).

1127. NOTIONS. I. On price in general. The price of a thing is the expression of its saleable value through a certain sum of money. It is said: of saleable value, that is, of the aptitude which the thing has for being exchanged with others in human commerce.

Price, in general, ought to have three conditions: 1. that it consist in money; otherwise it would be exchange; - 2. that it be serious, that is, not simulated, nor derisory; otherwise it would be donation; - 3. that it be determined by the contracting parties, at least radically, or by someone to whom determination has been committed (III, 794).

II. On just price. A just price is that which is rightly estimated to equal the value of the saleable thing. - One is legal, which is taxed by law or by a magistrate. Another is vulgar or natural, or here and now current, which, the circumstances having been considered, is determined by common estimation. Another is conventional, which is determined by the free pact of the contracting parties.

Now: 1. A legal price excludes every variety, because it is defined by law. But the law itself can cease, or a just reason here and now excusing can be given.

2. But a vulgar price admits variety, because the judgments of men vary concerning the value of the same thing. Thus the price is accustomed to grow by reason of the abundance of buyers, or abundance of moneys, and scarcity of wares; on the contrary, it is accustomed to decrease by reason of scarcity of buyers or moneys, and by reason of abundance of wares. Hence, a vulgar price, within the limits of the just, is distinguished in such a way that it is: a) highest or rigorous, above which the thing is not accustomed to be estimated; b) lowest or pious, below which the thing is generally not estimated; c) middle or moderate, which stands between each.

How great that breadth of vulgar price is can scarcely be defined. - Yet commonly it is admitted that the price of cheap and necessary things has less breadth than that of precious and superfluous things. Thus, for example, wine or something similar which is worth five lire can be sold for six or bought for four; or if it is worth ten, it can be sold for twelve and bought for eight; if it is worth one hundred, it can be sold for one hundred five and bought for ninety-five. But a house or villa which was sold for 20,000 can after a year be bought for 12,000, and conversely (III, 803, 804).

3. Conventional price has for its object precious things, paintings, gems, horses, etc.; extraordinary things, singing, music, etc.; or things whose value is commonly unknown. Whence it too can admit variety, according as fluctuation of estimation happens on the part of experts or lovers.

1128. PRINCIPLES. I. One must stand of itself from commutative justice by the legal price. For to civil authority belongs the right of establishing whatever regards public commerce. Individual sellers besides, since the rate is determined in their favor, acquire strict right that another not entice buyers by selling the thing for a lesser price (III, 803).

Yet sometimes it is licit to exceed the legal price, namely: a) if it is not observed by the greater part of the people, with the prince knowing and not punishing; - b) if, circumstances having changed, the rate becomes unjust; c) if an excellent thing is sold, because the prince, in taxing the price, regards only the value of ordinary merchandise. Indeed, it is licit to sell for a lesser price if the rate was established lest things be sold more dearly.

Note. A magistrate who knows that the legal price is going to be increased can indeed provide for himself without evident injustice, but cannot warn others (Lehmkuhl, I, 1328).

II. When legal price is lacking, one must stand by the vulgar price, so that to sell above the highest and to buy below the lowest is unjust. The reason is that that is the just price at which the thing is commonly estimated among men; but if this is not preserved, equality is lacking, which pertains to the nature of commutative justice (cf. Salmant., c. 2, n. 94).

Lesion, in the external forum, does not give place to rescission of sale: in France, unless the deception is beyond half of the just price; in Spain, unless it is beyond the fourth part,1 and only in a double case: when namely the contract was entered upon either by a tutor or by a mandatary who represents an absent person; elsewhere, for example in Germany,⁰¹ otherwise. Yet in the internal forum, any notable lesion obliges to restitution. If the lesion happened in good faith, the one injuring is held at least to restore that in which he has been made richer, that is, in which he spared his own goods, lest he become rich from another's goods (cf. n. 935).

From these things conclude: Since the just vulgar price rests on common estimation, those do not act unjustly who, for gold or ivory which are offered by barbarians, give glass or cloth, or other things common among us. For these cheaper things have great value for barbarians.

III. Conventional price, according to diverse adjuncts, will be just or unjust. And indeed:

1. If each of the contracting parties is ignorant of the true value of the thing, for example judges a precious gem to be glass, the contract is invalid, as resting on substantial error; whence the price must be restored.

2. If each doubts concerning the true price, the purchase will be just, so that, if the buyer afterwards resold the thing more dearly, nothing is to be allotted to the former seller. For both, by agreeing about the price, expose themselves to equal peril.

3. If only one knows the true price of the thing, the purchase will be unjust if experts would commonly easily recognize the value of the thing: for then, with respect to this thing, there is present a price quasi-vulgar among experts. - Except if recognition of the value of this thing is to be attributed to the singular expertise, and therefore industry, of the buyer.

1129. Corollaries. I. It is licit to use industry for selling at the highest vulgar price or buying at the lowest. But it is never licit to use fraud or deceit (Ami du Cl., 1904, p. 476; 1906, p. 765): for anyone has a strict right not to be positively deceived. But once the price within the limits of the just has been determined by agreement, neither can recede from it, since each has assumed the peril upon himself (Lehmkuhl, I, 1327).

Hence: 1. The seller sins against justice if, before the agreement has been made, he deceitfully induces the buyer to pay a greater price than otherwise he would justly have given;3 likewise if, after the agreement has been made concerning the lowest or middle price, he secretly obtains for himself the highest, by deceiving the buyer in the counting of money, in weight, or in measure (Konings, n. 964).

2. The buyer similarly sins against justice if he knowingly buys below the lowest price, by asking the ignorant seller to condone what it is worth beyond this; because such condonation, since it proceeds from ignorance, is null. - But otherwise if, when questioned concerning the value of the thing, he simply remains silent and pays the lowest price; because thus he uses neither force nor deceit (III, 819).

3. The practice of certain merchants is to be reproved, who expose their wares for sale at a very cheap price so that they may turn buyers away from other merchants, but afterwards diminish the weight or measure, etc. Indeed such sellers become guilty of injustice toward other merchants, and are held to restitution for damage inflicted on them; because each has a right not to be impeded by deceit or fraud from hoped-for gain or from gain to be made legitimately (Lugo, disp. 26, n. 135).

But advert for practice: a) Commonly faith is not given to the lies of sellers affirming and swearing that they obtained the saleable thing for themselves at such a price, or sold it to others at such a price, so that thus they may draw the buyer to the highest price; nor to the lies or perjuries of buyers affirming that they bought the thing for so much from others, or that others offered it to them for so much, so that thus they may bring the seller to the lowest price. b) Yet if it were established to someone that faith is given to his lies, etc., and that these truly are the cause of a greater or lesser price, then he would not be excused from the fault of deception and injustice (III, 805). - Cf. Linz. Quart. Schr., 1910, p. 593; Gopfert, II, n. 115, Reclamewesen.

II. He who privately knows that the price of merchandise is going to be increased or diminished soon can sell or buy it at the current price, after the example of blessed patriarch Jacob, provided fraud and lesion of charity are absent. For the future value is not to be regarded, but the present value, which indeed is not varied from some particular knowledge, but from common estimation. Cf. St. Thomas, 2. 2, q. 77, a. 3, ad 4.

We said: a) Provided fraud is absent; for a sale or purchase would be unjust if someone, for example, through public journals, were to spread false rumors about the price soon to be diminished or increased, etc., as is frequently in use today, especially concerning public censuses. - b) Let lesion of charity be absent; for sale or purchase would be illicit if the other contracting party would be cast into grave necessity; or also, if the thing which could easily be sold to several, or bought by several, is sold to one only, or bought by one, who therefore is going to suffer the whole damage alone; or if, when it can be sold to him who is going to consume it immediately, it were sold to another who is going to preserve it. Therefore, excepting cases of this kind, charity does not seem to press. For strictly speaking, he does not injure charity who uses his right, justly taking counsel for his own affairs, although another by accident suffers damage from this (III, 824; H. Ap., X, 188).

III. When an extrinsic title stands, it is licit to sell above the highest price or buy below the lowest. The reason is that that extrinsic title, which is joined to the thing to be sold or bought, causes the accustomed value of the thing to increase or decrease.

1. The extrinsic titles on account of which it is licit to SELL above the highest price are the following:

a) Profit certainly or probably ceasing from alienation of the thing, or damage emerging, or any other inconvenience of the SELLER estimable by price; for a seller of this kind sells not only his bare thing, but also his benefit, or the damage which he suffers. - But advert that the buyer must be forewarned concerning these titles, as also concerning the following, so that he can, if he wishes, provide otherwise for himself.

b) Special affection which the seller reasonably experiences toward his own thing; for from this arises, in selling, an inconvenience estimable by price. But here advert that the special affection of the buyer is not, as the affection of the seller is, a title of selling for more; because, as is commonly taught with St. Thomas (2. 2, q. 77, a. 1), no one can sell what is not his own (cf. Lehmkuhl, I, 1330). Yet several moderns contradict, on account of the received custom, they say, of increasing the price of a thing which is going to bring special benefit to the buyer (Scavini, II, 393; Gousset, I, 840).

c) The mode of selling; for if things are sold in small quantity and by retail, a greater price can be exacted, on account of the greater cares and expenses which then are usually expended for preserving them. Besides, if they are sold at auction, with public power approving this, whatever price is determined by the bidders without fraud is considered just (III, 807-809). Cf. below n. 1134.

2. The titles on account of which it is licit to BUY below the lowest price are numbered as three:

a) Damage emerging from the present purchase, or profit ceasing, or any other inconvenience of the BUYER estimable by price. Whence, with right preserved, you can buy more cheaply a thing from which little utility will come to you. But the seller is to be warned of this from charity.

b) Voluntary offer; hence you can buy for less wares voluntarily offered by sellers running through streets and houses. For the adage bears: Voluntary wares become cheap; and this more probably, says St. Alphonsus, by a third part; and the reason is that this voluntary offer commonly argues either fewness of buyers and abundance of wares, or danger of a hidden defect, etc. But if things become saleable and are offered on account of poverty, it is probable that, also in this case, not otherwise than voluntary wares, they become cheap; and therefore can be bought more cheaply, provided it is not a question of things which are commonly bought and offered, as grain, oil, and similar things. Yet he who buys more cheaply from a poor man pressed by necessity easily sins against charity, if he buys the thing for his own utility, not for the favor of the poor man.

c) The mode of buying; for wares can be bought for less: if they are bought together in great quantity, since the seller by this mode is freed from many cares, expenses, and inconveniences; - or if they are sold at auction, on account of the reason stated above; - or finally if they are exposed for sale among dealers in old things; because things of this kind, even if perhaps precious, are considered to have lost their original price, and to receive another from custom or the agreement of the contracting parties; or at least they suffer the greatest breadth of price, as we already noted (n. 1127). See with respect to these things the Holy Doctor (III, 801, 802; H. Ap., X, 174).

1130. Questions. QUAER. 1. Whether DELAYED or ANTICIPATED payment of the price is a legitimate cause of selling for more, or buying for less?

Resp. Affirmatively, if there intervenes a title excusing from usury, as profit ceasing, damage emerging, peril in exacting the price. Thus it is certain that a thing can be sold more dearly if the price is to be handed over at the time when the thing is going to be worth more, provided it would have been preserved by the seller until that time. On the contrary, it can be bought more cheaply if it is to be handed over at a time when it is going to be worth less (III, 810; H. Ap., X, 178).

Indeed, today this seems to be admitted simply, without inquiry being made about other titles. The reason is both because common estimation thus bears, and because, while the use prevails, not reproved by the Church, of perceiving the legal or vulgar rate from a loan, anticipation or delay of payment is truly estimable by price. And on account of this same reason, chirographs and credits can be bought more cheaply if they are paid by anticipation (III, 829). Public censuses and other titles, concerning which great negotiation takes place today in the mercantile forum (a la bourse), can similarly be bought and sold at the current price, even if that price does not correspond to the inscribed price. For from common estimation, titles of this kind are equated with ordinary wares, whose price grows or decreases according to the diversity of circumstances.

QUAER. 2. Whether chirographs and credits, on account of difficulty of OBTAINING payment, can be bought for less?

St. Alphonsus responds (l. c.): "He who is not the cause of that difficulty licitly buys for less, according as the difficulty or uncertainty of payment is lesser or greater; because with such peril and difficulty they are worth less. - Likewise, a credit uncertain or of difficult exaction can licitly be bought for less, even if it is easy for the buyer to exact it entirely: because price is taken from common estimation, not from the particular circumstance of the buyer."

1131. The obligations of the buyer, once the price has been established, refer both to the price and to the merchandise itself.

1. WITH RESPECT TO THE PRICE. a) He is held to pay the price in that place and time at which the thing is handed over to him, unless it was otherwise agreed, or unless, no caution having been furnished by the seller, there is reason to fear lest he himself be cast down from possession of the thing. b) He must pay interest of the price if by pact it must be paid, or if the thing sold and already handed over is fruitful, or if he himself was in culpable delay. c) He is held to pay also all the expenses of sale and carrying away, except the case of a contrary pact.⁰²

2. WITH RESPECT TO THE MERCHANDISE. a) He is held to assume it into his own power at the established time, or according to the nature of the thing or the custom of the place by determining the time; otherwise, as we have just hinted, he is held toward the seller concerning all expenses made for the sake of preserving the thing, as well as concerning the damage which thence comes to him. b) Indeed, sometimes he is held, at the will of the seller, to rescind the contract (cf. n. 1047).