Article I: On Purchase and Sale in General

513. The matter of sale is merchandise for a price. Merchandise is everything which can be measured by a price of money and alienated. Whence under this name come all things which are placed in commerce (a. 1598), and are not prohibited from being sold by particular laws, whether corporeal goods, or even incorporeal rights, such as credits, promissory notes, rights against a third party, or a right in an opened inheritance (that is, after the death of the deceased), even litigious rights according to the rate of probability of obtaining the thing (a. 1689-1701); not, however, the right of mere use and habitation (a. 631 and 634).

But a) in modern law sale is declared null:

1. if the inheritance of a living person, even one consenting, is sold (a. 1600), lest, namely, abuses, frauds, killings, or even desire of death follow;

2. if the thing sold was another's, not the seller's. In this case, if the seller knew, but the buyer was ignorant, that the thing was another's, the former, on account of fraud, will be bound to repair the damage inflicted (a. 1599);

3. if the thing had totally perished at the moment of sale. But if it had perished in part, the buyer can at will either withdraw from the contract, or demand the surviving part of the thing for a price to be determined according to the proportion of the whole price (a. 1601).

Those rules have force in the forum of conscience.

b) Besides, from natural law a sacred thing cannot be sold as sacred, or a spiritual thing as such: for thus it is not estimable by a temporal price. This sin is called simony.

514. The matter of purchase is the price for merchandise. Price is the value of a thing expressed in money, or the expression of saleable value through a sum of money, and therefore it is the measure of the quantity of the value of the merchandise itself. Therefore a just price is that which is adequate to the thing, or commensurate with its value; by it there is effected an objective equivalence between what is given and what is received. For a thing is worth neither more nor less than its just price.

Value is of one kind as useful value, of another as economic or saleable value. Saleable value supposes useful value, which is diverse in diverse things and does not have a univocal measure. Useful value, namely, is from the intrinsic dignity of the thing and the intensity of individual necessity; but saleable value is the aptitude which a thing has so that it may be exchanged in commerce with others (ruilwaarde), or the estimability of the utility and facility which a thing has for satisfying needs, that is, the appetite and common desires of pleasure, utility, necessity: aptitude for satisfying common necessities.¹

¹ Economists dispute about the causes of value. Some, as many liberals, hold value as merely subjective, namely from the utility and estimation of the contracting parties. Others derive it from the very intrinsic utility of the thing, either absolute or relative to the buyer, with simultaneous attention to the abundance or scarcity of merchandise and money, and to the proportion between things offered and things sought. Others, as many socialists, reckon the value of a thing from the labor alone which in itself is necessary in making, preserving, or also transferring it.

Value, and therefore price, does not depend on the subjective estimation of the seller (since he ought not to be judge in his own cause), nor on the subjective advantage of this or that buyer in particular, nor on the intrinsic perfection or natural dignity of the thing itself considered in itself; for wheat is sold more dearly than mice, gold than a dog, a gem than fleas, a house than a horse, or even than a slave. But it depends on the objective utility of the thing with respect to human uses, and indeed not absolutely, but according as men are able to estimate that use, and this utility is appraised and measured by common estimation: for a gem for ornament is worth more than a great quantity of wheat for consumption. - The foundation of the whole matter seems to be the reality of the social order. But the necessity of exchanging things, goods, and services according to certain and determined qualities is the objective reason of equality and economic value.

Value depends on the utility of the thing, that is, on its fitness for human uses of convenience, pleasure, necessity; and this is estimated more or less a) from the labor expended, costs, industry, and dangers, in themselves and commonly necessary for producing, preserving, and transforming things; b) from the abundance and scarcity of things, and the frequency or rarity of buyers or sellers; and c) from the intensity of common desire or the common will of acquiring and selling.

Whence price can vary and be increased or diminished from various causes:

a) on the part of merchandise, on account of abundance, which diminishes the value of merchandise, and scarcity, which increases it: for that is esteemed more which is sought by more persons and which is found with greater difficulty or in lesser supply, but that is esteemed less of which there is greater supply and which is less sought;

2. on the part of buyers: a) from their frequency. If there are many, merchandise is sold more dearly than if they are rare: for the more buyers there are, the more things are esteemed, since frequency of buyers induces scarcity of merchandise; b) from their capacity and the quantity of money of which they can dispose;

3. on the part of sellers, for those who sell by office sell more dearly than those who sell by accident. For it is estimable by price that some persons continually take care of seeking out, preserving, and distributing things, and are compelled to omit other ways of making gain. And likewise expenses, dangers, and damages which commonly occur increase the price: commonly, I say, for from the fact that one merchant suffers a singular loss in his merchandise, for example, by shipwreck or fire, the price is not thereby justly increased for him;

4. from the mode of selling. For things are sold more dearly, or on the contrary at a cheaper price, according as they are sold a) by office, or by accident; b) by retail, or together in a great quantity: for this frees merchants from many cares and makes them ready for acquiring new things; c) in one's own shop, or under the hammer, by public auction; d) in a shop sought out, or brought by free offer: for merchandise offered spontaneously becomes cheap, since this mode of selling indicates moderate utility and means on the part of buyers.

By all these the just price can be determined.

From these things it can be understood:

1. That the principle is false: a thing is worth as much as it can be sold for, or as much as can be had from buyers. This is true only within the latitude of the estimation of the just price, namely in such a way that one can seek up to the highest just price, but not beyond the highest.

2. "That those rules of merchants are false by which they are wont to justify the prices of their merchandise: that they bought for so much, that they made such expenses, that they underwent dangers, unless these are of the kind which commonly occur in the purchase of such merchandise. For some merchants are foolish and imprudent, and rash, who either easily suffer themselves to be deceived, or make useless expenditures, or rashly expose themselves to dangers. There is added that, even if the merchant proceeded rightly, nevertheless because of a supervening abundance of the same merchandise, it happens that the price is diminished, and therefore he cannot sell for as much as they cost him: just as also when scarcity supervenes unexpectedly, the price increases, and he can sell for more than he bought" (Sylvius, on q. 77, a. 1, q. 2).

c) That an individual merchant cannot, from the fact that he suffers a singular loss in merchandise through misfortune, theft, or fraud, exact even above the highest just price: for a thing is worth as much as it is commonly estimated, not as much as it cost a private person. But if the misfortune were common to many merchants, so that it induced a loss of merchandise, then the price would increase.

d) That the practice of merchants is of itself inequitable when, selling at the lowest price or below it, they do not hand over a full measure or hand over merchandise not whole but adulterated. Nor can this be called licit as an occult compensation against buyers, because they have not harmed the sellers, unless they have unjustly compelled them to sell at a cheaper or the lowest price.

e) That those are unjust who are wont to give gifts to servants, and afterward secretly compensate themselves by increasing the price beyond the highest just price, unless, however, the practice is known to the masters and they do not contradict it.

f) If certain things are very highly esteemed among uncivilized nations, it is not unjust to sell them there at a very high price: common estimation in some region renders the price just.

Finally, others, as many Catholics, judge that value depends on the intrinsic utility of the thing together with labor, and besides on the more or less vehement desire of buyers to procure the thing for themselves on account of its utility, pleasure, or necessity.

515. Principle I. A sale is just if there is equality between merchandise and price, or if the price is just; so that to sell a thing more dearly and to buy it more cheaply than it is worth is in itself unjust and liable to restitution.

It is proved: 1. from St. Thomas, q. 77, a. 1: "Purchase and sale seems to have been introduced for the common utility of both, namely while one needs the thing of the other and conversely. But that which has been introduced for common utility ought not to be more to the burden of one than of the other, and therefore a contract ought to be established between them according to equality of thing. But the quantity of the thing which comes into the use of man is measured according to the price given; for this purpose money was invented. And therefore if either the price exceeds the quantity of the value of the thing, or conversely the thing exceeds the price, the equality of justice will be taken away. And therefore to sell a thing more dearly or to buy it more cheaply than it is worth is in itself unjust and illicit";

2. from the liberty of contract: the seller in some way is reasonably unwilling that the thing be estimated at a cheaper price, and the buyer similarly that it be estimated at a greater price, than is just. And therefore to force the other party to an unequal contract and as it were thrust it upon him is unjust, because in reality he does not consent to it except as coerced or deceived.

516. Principle II. By accident it is licit to sell at a greater price or to buy more cheaply than the just price. Thus on account of extrinsic titles, of which three are reckoned on the part of the seller and three on the part of the buyer.

A. On the part of the seller the reasons for increasing the price are:

1. emerging damage, as if he sells flour which he needs, or an instrument useful for exercising an art, while he himself afterward can buy it only more dearly;

2. ceasing gain, as if in favor of the buyer he sells merchandise which he wished to keep for the time when it would have been dearer, or permits payment to be deferred for a longer time;

3. special affection for the thing on account of the special advantage or enjoyment which it brings to him, because the lack of a thing specially loved is something estimable by price.

Yet concerning these he must forewarn the buyer.

B. On the part of the buyer the reasons for diminishing the price are:

1. a purchase made in favor of the seller, with damage, ceasing gain, or inconvenience to the buyer; for example, if someone in favor of the seller buys now a thing which he needs only at a time when it will be of lesser price. Concerning this, however, the seller must be warned;

2. spontaneous offer, for things spontaneously offered become cheap: for this indicates either a scarcity of buyers and abundance of merchandise, or the danger of a latent defect or of covered-up superiority;

3. anticipated payment, in present-day economic circumstances, because thus there is afforded to the seller an advantage which is estimable by price.

517. A threefold price is distinguished: legal, common, and conventional.

a) Legal price (wettelijke prijs) is that which is fixed by public power on account of the common good, so that the greed and frauds of sellers and buyers may be met and the exploitations of the poor impeded:² thus in certain states, by the authority of magistrates, the price of bread, meat, or other foods of daily necessity is defined.

² Bannez excellently justifies legal price.

That price is wont to be used, for example, in railway tickets, in postal stamps, in foods which are served in certain public places, in medicines which are sold by pharmacists, in the hire of public carriages, in some monopolies of the government, etc.

b) Common price (gewone of gemeene prijs) is that which, independently of every coercion, is determined by the common estimation of men, according to the variety of places and times. And because various men do not judge entirely alike about the same things, common price does not consist in an indivisible point, but has a certain latitude; whence a threefold price is usually distinguished: the highest, above which honest merchants are not wont to sell; the lowest, below which honest buyers generally do not buy; the middle, which consists between both.

In things necessary for life, concerning which contracts are made often, generally the lowest price is not much distant from the highest in the same region, and the middle price is easily known to all by that which is called the current price; - but in superfluous things, especially when they are rarely sold, there is a greater latitude, and a well-determined current price is found more rarely.

c) Conventional price (prix convenu; overeengekomen of afgesproken prijs) is that which is determined by the free agreement of buyer and seller.

By agreement the price is wont to be established for things which are outside ordinary usual commerce and therefore do not have a common price, such as works of extraordinary art, precious gems of extraordinary magnitude, very ancient manuscripts, and other things of this kind which are sold most rarely; as also cheap things and things worn by use which are sold by dealers in old wares.

These things being posited, we say:

I. Given a legal price, one must stand by it in conscience, because it is established by authority for the common good, and thus it is the more certain rule; - unless nevertheless it is manifestly unjust (which scarcely happens), or, things being notably changed, it becomes unjust; or it is not observed by the greater part of the people and has gone into desuetude; or the merchandise is notably more precious or worse, which is an extrinsic title. Therefore he who without a special and just reason exceeds that price commits injustice and is bound to restitution toward the buyers; indeed toward other sellers, if he diminishes the price and that price had been established not only in favor of buyers, but also in favor of sellers.

II. Failing a legal price, one must altogether stand by the common price, so that to sell above the highest and to buy below the lowest is unjust, unless there is a special reason of an extrinsic title. Common estimation is a more certain rule than private estimation, especially because price expresses the value of the thing with respect to common uses and necessities, which therefore is to be measured by common estimation; whence also contracting parties commonly intend to bargain according to that price: for men are not wont, in onerous contracts, to buy beyond the highest price or to sell below the lowest, unless perhaps deceived or coerced by necessity. But if it happened otherwise, equality of the thing to the price would not be preserved, and therefore neither would justice.

III. Failing both legal and common price, conventional price can be held as just, provided it is established freely and moderately, without fraud, force, fear, and other unjust means. The reason is that then there is no other way of determining the price. Thus with respect to things whose price both contracting parties altogether do not know, when each exposes himself entirely voluntarily in an equal way to uncertainty and the danger of erring: for then the contract is aleatory; or with respect to those things which are sold most rarely and do not have a common price, provided, however, that the conventional price is not beyond all proportion and of excessive magnitude or cheapness, but is determined moderately and reasonably, so that the estimation in some way, as far as possible, is made by comparison to other things which have some likeness.

518. Question: Is the special utility of the buyer a title for increasing the price? - The older authors commonly deny this, with St. Thomas approving, a. 1: "the utility which accrues to another is not from the seller, but from the condition of the buyer; but no one ought to sell to another what is not his." Yet some modern theologians hold that title legitimate, provided the seller does not abuse the buyer's necessity; because price also is determined partly from the extrinsic and relative utility of the thing, and from the more vehement desire of having it, as common estimation itself feels; - but general utility and common desire can increase price, not so mere private utility and particular desire.

Perhaps one can distinguish: utility from the subjective condition of the buyer, and utility from the relative condition of the estate, because, for example, the estate is near the house or field of the buyer. In this case the price perhaps can be increased, because the greater estimation comes from the objective respective situation of the estate itself to the house; but the price cannot be increased in the first case. For if a craftsman needs some instrument which brings him greater utility because of his knowledge, so that he can make a thing invented by his own genius, the seller cannot therefore increase the price, because the greater utility is wholly from the knowledge of the buyer; - likewise it cannot be increased on account of the buyer's necessity: his mere need is not estimable by price.

In practice, those who act in good faith in this way are not to be disturbed, unless they increase the price so that it is exorbitant. Nevertheless, even with the stated limitation added, the opinion of the moderns is not safe; the doctrine of St. Thomas is far more probable, if not certain.³

³ This too is admitted by P. Vermeersch, in Quaest. de Iustitia, where he offers two direct arguments for the opinion of St. Thomas:

1. The special utility of someone does not increase the value of the thing, since it is not commonly estimated. Therefore it does not enter into the just price, nor can it be computed unless there is question of damage to be prevented or repaired. There is no damage where there is utility of the buyer. Therefore.

b) Price is to be paid insofar as the thing pertains to the seller. But the thing pertains to the seller according to value and according to the utility peculiar to himself, but in no way according to the utility which first arises in the buyer.

But he attacks the other opinion on account of absurd consequences:

1. A just price not only can be exacted but must be paid. If therefore the special utility of the buyer were to change the reason of the just price, the buyer either ought besides to increase the price, or at least to indicate his utility, so that the seller could use his right of increasing the price. Yet no one would say this; buyers have recourse to various arts so that this utility may be unknown.

2. Just as a thing can be specially useful to a buyer, so not rarely money brings to a seller a special advantage of gain. Yet for this reason he does not judge himself bound to deduct something from the price, even if he tries to compute the special utility of the buyer. Are not these things altogether arbitrary?

3. As Molina already argues, De Iustitia, c. 2, d. 348, n. 6, then it would be lawful to sell more dearly to the poor man than to the rich. For does not special need reveal special utility? Therefore gratuitously do the adversaries themselves distinguish the case of necessity, which they do not wish to be considered by the seller, from gainful utility or utility of affection. Nor let them object that he who is pressed by necessity lacks liberty. For both he who wishes to recover from his own necessity, and he who wishes to seize an occasion of gain, are pressed by the necessity of the end or of the intended good, to which one way lies open: the procurement of the thing. From this the obligation of charity can vary, not that of justice.

519. Remarks on the just price. - 1. Common estimation makes a price just even if it seems imprudent; hence among uncultivated nations gold or ivory can justly be exchanged for glass or cloth: for common judgment attributes great value among those nations to things which elsewhere are of the least value. The contrary holds of private estimation; hence it is illicit to sell colored glass to an ignorant person for a great weight of gold, or to buy at a cheap price a thing commonly esteemed precious, when the seller is ignorant that it is such, for example, a precious gem.

2. It can happen that a price which does not exceed the highest is unjust:

a) if, once an agreement has been made concerning the middle or lowest price, someone secretly procures the highest for himself by deceiving the buyer in the counting of money or in weight or measure;

b) if before an agreement has been made he deceitfully induces the buyer to give a greater price than he otherwise would justly have given: for anyone has the right to demand that he not be impeded by frauds or other unjust means from buying at a just price, such as the moderate or lowest price which he would have wished to give.

3. Nevertheless, pure lies (or oaths) by which merchants exaggerate the price, or affirm that the saleable thing cost them so much or that they sold it to others for so much, just as those by which buyers affirm that elsewhere they can or could buy for less, generally are not to be held as true frauds: for no one is wont to trust such things much, which have been customarily used so that one may arrive at a moderate price. Whence they are a sin against truth (or also religion), not against justice, provided the price is not above the highest or below the lowest. The case would have to be excepted in which the buyer, on account of special confidence which he placed in the person of the seller, or on account of extraordinary protestations of sincerity (for example, false documents) emitted by the other party, could in no way guard himself from error.

4. St. Alphonsus asks, l. III, n. 822: "Whether he is excused (from injustice) who uses a diminished measure in order to obtain the just price, which otherwise he would not obtain because of an unjust legal tax, or an unjust monopoly of buyers? Very probably they affirm... because then he justly redeems his own vexation." Concerning these things Prummer, II, n. 294, notes that they are to be understood with a grain of salt and very rarely can be reduced to practice in our times: "It is said in Scripture: A deceitful balance is an abomination before the Lord (Prov. XI, 1). Especially, the excuse often brought forward by merchants is not sufficient, namely that they cannot sustain 'competition' if they do not diminish weight and measure. For no injury is inflicted on them by buyers. Nor let them say that the weight even thus corresponds to the just price. For although this is true absolutely, nevertheless it is false after there has once been a legitimate agreement about such a price and such a weight (Billuart, diss. 3, a. 3). But they can defend themselves against other 'competitors' by accusing them of illicit machinations. - Such diminution of weight or measure is licit only a) if universal custom so bears, and this can easily be recognized by buyers; b) if buyers by unjust means (for example, so-called Boycott syndicates) compel sellers to a truly unjust price; because then sellers can defend themselves" to compensate themselves, if another way is lacking. These things are not said in opposition to the doctrine of St. Alphonsus, but because the case is often diverse.

5. The confessor must beware lest material sins be changed into formal sins without utility. For often men in good faith judge that every price which is freely and without fraud established between the parties is just. Yet this is false; for even he who in good faith sells at a price greater than just, or buys at a lesser price, is bound to restore that in which he has been made richer. The confessor ought not disturb this good faith unless the error is evident and the fruit of the admonition is probable.

6. There are almost innumerable frauds which are wont to be committed in the sale of things. But in so great a variety of cases the confessor will not wander much from the right if he especially attends to what among truly honest men is customarily done in such a case (unless, however, there is a grave reason for doubting). But that he may discern whether in practice a grave obligation of restitution arises, let him attend to three things: a) whether the damaging is truly, formally, and effectively unjust, and that in grave matter; b) whether the thing sold is at least morally the same as that which the buyer thought he was acquiring; c) what custom is in force in such a sale. Yet let the unjust mode of acting of certain merchants not be called an accepted custom.

520. Cases. - I. Sometimes merchants sell below the common price in order to attract buyers, and thus inflict damage on other sellers.

Resp. In themselves, these do not injure justice, because by selling merchandise at a cheaper price they use their own right; - but by accident, namely if they attract buyers by lies and frauds, simulating a price lower than the common price, and at the same time adulterating merchandise or diminishing weights or measures, they commit injustice against other sellers, whom they impede by unjust means from making gain; indeed, in itself also against buyers, as was said in n. 519, 2, not however always if they do this in such a way that the thing can be recognized and they diminish the price in the same proportion as the quality or quantity of the merchandise, unless extraordinary protestations of sincerity are made, so that the buyer could in no way guard himself from error.

II. Contracting parties from private knowledge know that the price of some merchandise is shortly to be increased or diminished, and nevertheless buy or sell at the common price actually current.

Resp. If they know that the price is to be increased or diminished on account of a cause intrinsic to the thing, it is unjust, because then the thing itself in itself is of greater or lesser saleable value, for example, if someone knows that his horse is about to die from a hidden disease, or that wine is about to become corrupted. But if it is foreseen on account of an extrinsic cause, for example, on account of the scarcity or abundance of things, or on account of other events, it is not unjust, provided one guards against every force, deceit, or fraud. For no one is bound to communicate his own private knowledge to others, but he can use it for his own advantage, for rights assist the vigilant; besides, those who contract here and now are not bound to look to the future value, but to the present. Whence St. Thomas, a. 3, ad 4: "The seller who sells a thing according to the price which he finds does not seem to act against justice if he does not disclose what is future." Although he can sin against charity, if altogether great damage would come to the other, as if one buying a great quantity would be reduced to great misery, or if a seller could sell the merchandise to many and sold it to one, or when he could sell to one who would immediately hand over the thing to others who would consume it, he sold to another who would keep the thing until the time of diminished price.

But those who have acquired knowledge by force of their office act unjustly if they manifest the same first to a few friends rather than to other citizens, or if they deliberately defer making the knowledge public so that from this they may be able to receive great gain: for thus they abuse a public office and unjustly favor themselves or others to the detriment of others. Yet they are not demonstrated to be certainly unjust if they merely use that knowledge before its publication for their own advantage, even if indirectly some detriment of others follows; - unless, however, such use is positively prohibited to them.

III. It can sometimes happen that the current price is unjust, whether on account of lies and frauds, or on account of monopolies which have been instituted by the principal sellers of some merchandise, so that they may unjustly increase or depress the price.

Resp. In the case of lies and monopoly, the promoters sin against justice; but other merchants can be immune from injustice, not always, but if they are merely deceived by those frauds, or are compelled to stand by unjust prices lest they withdraw from the market and suffer ruin.

IV. Sometimes buyers buy at a cheaper price than better informed sellers would concede, by asking sellers to consent to the price entirely voluntarily.

Resp. The buyer sins against justice if he knowingly buys below the lowest price, asking an ignorant seller to yield what is worth more; because such a remission, since it proceeds from ignorance, is null. - But otherwise, if when asked concerning the value of the thing he simply remains silent, and pays the lowest price, because thus he employs neither force nor deceit.

V. It can happen that a precious thing is set out among common things and acquired at a cheaper price.

Resp. 1. If each contracting party is ignorant of the special value of the thing, the price freely agreed upon by them can be held legitimate, because each incurs an equal danger of loss and an equal hope of gain: in the case, namely, there is an aleatory contract.

2. If the buyer alone knows the value of the thing, but the seller is ignorant, a distinction must again be made:

a) Either the thing is set out by a dealer in old wares or another merchant who by force of his office is considered to know the true value and price; and then the stipulated price does not seem unjust, because no injury is done to the seller, since by force of his office he can and ought to know the price of the things offered, and common estimation bears this: for such saleable things publicly set out are already esteemed at less and receive the greatest latitude of price, so that they are wont to be awarded for the price offered or agreed upon.

b) Or the thing is bought from a private person, who in his simplicity is ignorant of the true value, and then the price is unjust, because it is to abuse the ignorance and simplicity of the seller, and between the thing and the price there is no proportion of equality: in the case, namely, there is a common price of the common estimation of experts, by which one must stand.

Yet an exception is made if the value of the thing is so hidden that scarcely anyone in the place could know it, and the buyer owes it to singular skill that he has discovered it: for then a determined common estimation of the common price is lacking and the conventional price becomes just; but if this is cheaper, it must be held as the fruit of the buyer's industry.

But if the precious thing lies hidden in another, then it will have to be held as a thing abandoned or lost, and, the conditions being given, can become the property of the first occupant.

521. Duties of the seller. - The seller must: 1. furnish a thing of the same species, quality, and quantity as was agreed; 2. manifest the defects of the thing; 3. hand over the thing itself which was sold; and 4. secure it against eviction.

I. The seller must furnish the same thing as that which was requested, not only as to quantity, but also as to species and qualities, at least morally. For if the thing sold differs physically from the thing requested, but morally or commercially is the same, equally useful to the buyer and fit for the intended end, the contract has force; but otherwise it is invalid and of itself unjust, because there is not consent unto one and the same thing, since the seller hands over a thing which in common estimation differs substantially from that which the buyer requested.

Therefore a) in itself it is illicit to substitute an artificial thing for a natural thing requested by the buyer, for example, chemically made wine, not from the vine, or margarine in place of butter.

b) Nevertheless, if merchandise made by art which is sold as natural is not harmful, but is almost equally useful, if its sale is commonly tolerated in society and besides the price paid is equivalent to the value of the thing (namely, of margarine, not of pure butter), then the contract has force; provided the buyer has not explicitly determined that he wishes to buy only an altogether natural thing, for example, if someone goes to a merchant who publicly announces that he sells only natural things, in no way things made by art, and so declares that faith should be given to him.

c) But if the thing substituted is itself natural, for example, if for a requested fish one altogether similar is substituted, the contract has force in itself, since the thing is morally the same; nevertheless injustice can easily then be committed if the value of the thing sold is less than that of the thing requested: the buyer did not will this, whence consent is lacking, for example, if horse flesh is sold for beef.

d) Likewise, of itself it is illicit to adulterate things requested by the buyer, or to mix them with others of cheaper quality; thus he acts unjustly who so adulterates or mixes merchandise that buyers would not buy it for such a price if this became known to them.

e) But if such mixtures are of the kind as are generally made by merchants, and do not harm health, and besides the price is diminished proportionately, there is no injustice strictly so called, and therefore no obligation of restoring.

Whence it is licit to accommodate oneself to commonly received usages; but injustice is committed: 1. if adulterated things are infected with a substantial defect; 2. if from the contract a special obligation of a pure thing has been undertaken; 3. if an inequitable price is demanded.

Yet one must not think that the price is always inequitable if a thing mixed with a cheaper thing is sold at the current price. Thus indeed it is in itself, but not when certain circumstances are added: a) if the admixture of substance is moderate and is made on account of necessity, utility, or common custom; b) if the merchandise, in proportion to the price, is still sufficiently fit for the accustomed use or the use intended by the buyer; c) when the merchandise is of extraordinary goodness and exceeding others commonly appraised, and thus is reduced to a state of equality with the others; d) if the merchandise, worse in itself, is so mixed by industry that the thing is better tempered; e) if on account of an unjustly fixed price, or excessive exactions, or the inequity of buyers, or common custom, sellers are compelled to sell for less than is just, and by selling pure things could not receive the just price: for then, up to the equality of the just price, they will be able to mix something cheaper with the merchandise or to diminish in measure.

II. The seller must manifest the vices and defects of the thing to the buyer, both 1. substantial defects, namely those which affect the substance of the thing and render it harmful or unfit for the known end of the buyer; otherwise the buyer's consent is lacking, since no one intends to buy a harmful or plainly useless thing (a. 1641 sq.); and 2. even accidental defects of some moment, but hidden, namely those which regard only the quality of the thing:

a) if the buyer asks specially concerning them or expressly binds his consent to the quality: by being silent when he ought to speak, the seller would use deceit and fraud and thus would injure justice, and the contract would be rescindable; which would be verified a fortiori if he positively deceived the buyer by words or deeds, using bad arts so that the merchandise would seem better;

b) if from the defect there threatens danger of grave damage, as if a furious or asthmatic horse is sold, or a ruinous house: such a defect of quality redounds into the substance;

c) if from this the thing becomes useless for the buyer's end, for example, by selling an expired medicine.

Yet he is not bound to manifest defects, although he cannot deceive concerning them by positive artifices:

1. if they are manifest and evident (a. 1642), for example, that a horse is one-eyed; unless the buyer is inexperienced and by himself could not recognize the defect;

2. if the thing equally serves the buyer's end, even if he is asked about defects in general;

3. if the defect is concerning quantity, for instance concerning measure and weight.

What, therefore, concerning the practice of those who are wont to conceal all defects?

R. According to the above, if such a seller is not asked about defects, and the defect itself is accidental and hidden, he is not bound to manifest it, provided the thing is still worthy of such a price and the buyer does not directly signify that he intends a special use, which cannot be had because of the defect; for example, if someone sells wine which cannot be preserved for a long time, while the buyer manifests the intention of preserving it for a long time. Besides, charity sometimes obliges one to declare a defect, at least after the sale, provided it can conveniently be done. - But if such a defect is positively concealed (at least in a manner not customary), there is unjust deceit, for example, if in a fish shop, where freshly caught fish are commonly sold, salted fish are forced upon the buyer.

In practice, however, civil legislation also must be considered: for on account of the common good, because of the security of commerce and for removing lawsuits, law can hold certain contracts which of themselves are rescindable as valid and firm; and then they also will be just, provided no more than the just price is exacted.

A. By French and Belgian law there are recognized redhibitory defects, which permit redhibition, that is, recovery of the price (vices redhibitoires; koopvernietigende gebreken): when these are present, the buyer can return the thing and demand restitution of the price, or keep the thing and recover part of the price according to the estimation of experts (a. 1644). For redhibitory defects four conditions are required: a) that the defects be hidden; b) unknown to the buyer, otherwise he is considered to have wished to buy the thing notwithstanding the defect; c) existing at least virtually at the time of sale, for once the sale has been completed the thing becomes the buyer's; d) impeding the utility of the thing, or so diminishing it that the buyer would not have bought it if he had known the defects (a. 1641-1642). These things being verified, the seller is held for redhibitory defects, whether he knew them or not (a. 1645-1646). Nevertheless, if he is of good faith, by a special pact he can exempt himself from every obligation as to defects, by declaring that he sells at the buyer's risk (a. 1643); if he has not done this, he is bound only to restore the price of the thing and the expenses arising from the contract (a. 1646); but if he is of bad faith, he is bound besides to compensate all damages inflicted on the buyer (a. 1645). But if the thing sold has perished from a redhibitory defect, the seller is bound to return the price and compensate damages; otherwise if it perished by a fortuitous case or by fault of the buyer (a. 1647).

B. Indeed, when there is question of public fairs, or of those things which are wont to be sold and bought in fairs, sometimes, to avoid lawsuits, customs still broader can be justified, provided, however, merchants do not sell beyond the just price.

Thus in Belgium, for the sale of domestic animals, for example, horses, asses, cows, sheep, no defects are admitted as redhibitory except those which are enumerated in the royal edict of September 3, 1885, completed July 3, 1894, from the law of August 25, 1885.

III. The seller is bound to hand over the thing sold to the buyer, that is, to transfer it into his power and possession (1604); and indeed in that state in which it was at the time of sale, with all the fruits which he received from the day of the contract begun (a. 1614), accessories, and all things which are destined for its perpetual use (a. 1615) - unless the contrary has been stipulated or received by custom - at the predefined time and in the predefined manner, and, lacking a pact, according to the prescriptions of law or accepted custom, and in the place where the thing was at the time of sale, unless it has been otherwise established (a. 1609). Otherwise the buyer has a personal action against the seller and a real action concerning the thing sold: he can, namely, demand rescission of the sale or immediate possession of the thing, and reparation of the damage caused by delay (a. 1610-1611).

It should be noted: a) that handing over is made in diverse ways according to the diversity of things: by real delivery from hand to hand, unless the thing is already with the buyer, for example, deposited or lent for use, in which case consent alone suffices; by designation of the thing present, or by sealing, as in trees or sheep; by delivery of keys; by delivery of the writing or instrument by which the title and right are established (a. 1606);

b) that the seller is bound, as a depositary, to guard the thing faithfully until it is handed over; whence if by his fault it perishes or suffers detriment, he is bound to repair the damage; on the contrary, if it perishes by a fortuitous case, because then the owner suffers the damage, who ordinarily is the buyer even before handing over;

c) that the seller is not bound to hand over the thing if the buyer does not pay the price at the appointed time, or falls into a state of bankruptcy (a. 1612-1613);

d) that from handing over of the thing (la delivrance; de uitlevering) there differs carrying away (l'enlevement; de oplichting): the former is done at the seller's expense, but the latter at the buyer's expense, unless otherwise established by agreement or custom (a. 1608).

But what in the case in which, before the thing is handed over, it is sold again to another?

R. As long as the thing has not been handed over to the second buyer, the right of the first buyer remains entire. But if the thing has already been handed over to the second buyer, a distinction must be made according as this one acted in good or bad faith. If he obtained the thing in good faith, he is considered owner of the thing (a. 1141 and 1599), and the seller must make the first buyer harmless: thus for preventing lawsuits. But if he obtained it in bad faith, the right of the first buyer remains.

IV. The seller is bound to secure the thing against eviction, just as against hidden defects, or to furnish security concerning tranquil possession of the thing (a. 1625). To evict is to take away a thing by conquering; whence in the case eviction is the legitimate disturbance of the buyer from possession of the thing which he bought, so that juridically he is compelled to hand over the purchased thing to another, either wholly or in part, because, for example, a mortgage creditor claims it. But since the buyer intends to obtain possession of the thing, in itself the seller is bound to furnish him security of this possession, under penalty of reparation of damages (a. 1626).

Nevertheless the seller will be excused from this security: a) if he expressly said that he did not wish to furnish security against eviction, provided he is of good faith (a. 1627-1628); b) if the buyer at the time of sale knew the danger of eviction or took that danger upon himself (a. 1629); c) if the cause of eviction arose only after the sale, for example, on account of prescription which the buyer, although warned concerning this matter, did not interrupt (a. 1640), or if the buyer is evicted by his own fault.

But it is asked what, in conscience, the seller is bound to restore in the case of eviction?

R. 1. In the case of total eviction: a) If he was of bad faith, he must restore the price of the thing, every damage which the buyer suffers, for example, the expenses of the contract begun and of the judicial action, fruits which the buyer perhaps must restore to the owner of the thing (deducting those things which he gained from the purchase), etc. (a. 1630 sq.).

Other things added in civil law do not oblige except after the sentence of a judge.

b) If he was of good faith, he must restore the price after the sentence of a judge, indeed even before the sentence if it were certainly established that the thing belonged to a third party.

2. In the case of partial eviction, one must see whether the part is such that without it the buyer would or would not have wished to buy the thing:

a) if he would not have wished it, he can obtain rescission of the contract (a. 1636) and has the same rights as above;

b) if he would have wished it, he can demand the price of the evicted part according to the estimation of value at the time of eviction (a. 1637).

But those things which are established concerning partial eviction are applied to the case in which the estate sold is burdened with non-apparent servitudes which were not declared (a. 1638).

522. The duties of the buyer after sale are: to pay the price, - to take away the thing, - and to furnish security concerning the money by which he pays the price.

I. The buyer must pay the price at the predefined place and time (a. 1650); and, if nothing special has been agreed, at the place and time at which the thing is handed over or ought to have been handed over (a. 1651): for if the thing perishes by a fortuitous case, the contract having already been perfected, the buyer is not freed from paying the price, because the thing perishes for him as owner.

If payment is deferred beyond the predefined time, the legal increase is owed if a) it was so agreed; or b) payment was expressly required; or c) the thing is fruitful; - for otherwise damage is inflicted on the owner (a. 1652). And if the buyer in no way pays the price, the seller can petition for rescission of the contract, lest otherwise his rights be injured (a. 1654).

II. The buyer must take away the thing at the determined time; and, if nothing has been established, as soon as morally possible, lest from delay the seller suffer damage.

If the buyer has neglected to take away the thing, the seller is no longer bound to guard the thing; and if he has preserved it, he can recover the expenses made for this reason. Indeed, by French law, when there is question of movable things, the contract is resolved in favor of the seller if the thing has not been taken away after the predefined time (a. 1657).

III. The buyer must furnish security concerning the money by which he pays the price. - For just as the seller must secure the purchased thing, so also the buyer must secure the equivalent price; otherwise equality is lacking; whence also he would have to manifest the defects of the price in the case in which money were here and now of doubtful value.

What, therefore, if in payment of the price the seller has received false money from the buyer?

Resp. No one can use false money received for paying a debt: for if he himself was deceived, he does not therefore have the right of deceiving another. Whence he who handed it over to another as the price of a sale must recover it or make him harmless. - The same holds of money already obsolete (or foreign), whose value is much inferior to the value of corresponding legitimate money. Indeed, regularly it is not licit to give false money to others, lest an incitement to injustice be furnished.

But if someone in good faith accepted and spent false money, and was not thereby made richer, more probably he is not bound to a repeated payment when he to whom he handed it over suffered no detriment from it, for example, because he again handed that money to other unknown persons.

523. For what causes can purchase-sale be dissolved? - Resp. according to art. 1658:

a) by mutual consent, the things still being entire; - b) on account of fraud, error, fear, as was explained above; - c) on account of defect of the thing sold; - d) by fulfillment of a resolutory condition, if the contract was entered under it, for example, for the case of death; - e) if the thing was sold for a price much cheaper than is just: for then the seller is considered deceived concerning the value of the thing sold. This rescission by our civil law is conceded only for immovable things, and indeed not to the buyer (a. 1683), but to the seller alone, if he has been injured beyond seven twelfths (7/12) parts of the price (12,000-5,000 fr.), even if he has renounced his right (a. 1674 sq.).

In other cases civil law denies an action for rescission of the contract or for reparation of damage, to avoid lawsuits being multiplied too much; one must not conclude from this that the price is just in the forum of conscience. For in conscience every unjust notable injury must be repaired; for, as St. Thomas says (a. 1, ad 1): "human law is given to a people in which there are many deficient from virtue; but it is not given to the virtuous alone. And therefore human law could not prohibit whatever is against virtue; but it suffices for it to prohibit those things which destroy the living together of men; but other things it holds as quasi-licit, not because it approves them, but because it does not punish them. Thus therefore it holds as quasi-licit, inducing no penalty, if without fraud the seller oversells his own thing, or the buyer buys more cheaply, unless the excess is too great, because then human law compels one to restore... But divine law leaves unpunished nothing which is contrary to virtue. Whence according to divine law it is reckoned illicit if in purchase and sale equality of justice has not been observed; and he who has more is bound to recompense him who has been harmed, if the damage is notable. I say this for this reason: because the just price of things is not punctually determined, but consists rather in a certain estimation, so that a small addition or diminution does not seem to take away the equality of justice."

Hence, although an action for rescission on account of injury is conceded by law to the seller alone, nevertheless natural justice demands that even a gravely injured buyer can exact in conscience reparation of damage, or perhaps even rescission of the contract.

524. Remarks. - A. From our law, in order that the price of the thing sold can be exacted, there is required an act before a notary or under private writing (sous seing prive), so that before a judge the obligation of paying a sum beyond 1500 francs may be established (a. 1341 modified); otherwise it does not admit proof; - unless there is question of commercial agreements (Commercial Code, a. 25), for which every proof has force. Such an act evidently is not required for inducing an obligation of conscience, and therefore he acts unjustly who does not fulfill the conditions of the contract because no writing concerning it can be brought forward.

B. Canon law establishes certain special things for the alienation, exchange, and sale of ecclesiastical goods.

Can. 1530: 1. With due regard for the prescription of can. 1281 (concerning relics and precious images not to be alienated), for alienating ecclesiastical things, immovable or movable, which by being preserved can be preserved, there is required: 1. an estimation of the thing made in writing by upright experts; 2. a just cause, that is, urgent necessity, or evident utility of the church, or piety; 3. license of the legitimate superior, without which the alienation is invalid.

2. Other opportune precautions also, to be prescribed by the superior himself according to diverse circumstances, are not to be omitted, so that damage to the church may be avoided.

Can. 1531: 1. The thing ought not be alienated for a lesser price than that which is indicated in the estimation.

2. Alienation is to be made by public bidding, or at least made known, unless circumstances suggest otherwise; and the thing is to be conceded to him who, all things considered, has offered more.

3. Money received from alienation is to be placed cautiously, safely, and usefully for the advantage of the church.

Can. 1534: 1. A personal action belongs to the Church against him who has alienated ecclesiastical goods without the due solemnities and against his heirs; but a real action, if the alienation was null, against any possessor whatever, with due regard for the buyer's right against the one alienating badly.

2. Against the invalid alienation of ecclesiastical things there can act the one who alienated the thing, his superior, the successor of each in office, and finally any cleric ascribed to that church which has suffered damage.

Can. 1539: 1. In the sale or exchange of sacred things no account of consecration or blessing is to be had in the estimation of the price.

2. Administrators can exchange securities payable to bearer, as they call them, for other securities more or at least equally safe and fruitful, with any species of commerce or negotiation excluded, and with the consent of the Ordinary, the diocesan council, and others whose interest it concerns.

Can. 1540: Immovable goods of the church are not to be sold or leased to their own administrators and to those joined to them in the first or second degree of consanguinity or affinity without special license of the local Ordinary.