Section — Noldin, Summa of Moral Theology
Section 2. On the Obligations of Seller and Buyer
The obligations of the seller refer: a. to the thing to be sold; b. to manifesting the defects of the thing to be sold; c. to handing over the thing sold; d. to guaranteeing the thing sold.
589. As to the thing to be sold. 1. The thing physically or at least morally must be that which the buyer seeks; otherwise the sale is invalid because of substantial error, and the seller is guilty of injustice.
a. At least morally: for although the thing given is physically diverse from that which the buyer seeks, yet if morally it is the same, for example, if it is equally good and equally useful to the buyer for the end intended by him, the contract is valid, because saleable things are appraised according to moral estimation. Therefore a medicine physically different from that sought is validly and licitly sold, if nevertheless it conduces equally to the intended end as the one sought.
b. If therefore an artificial thing is substituted for the natural thing sought, for example, wine which is not from the vine, butter which is not from milk, the contract of itself is invalid; yet if things of this kind made by art are not harmful and are commonly sold, the contract is valid, provided the buyer did not expressly seek the natural thing and the seller diminishes the price according to the value of the thing sold.1
- The thing must be one's own, not another's: for, of itself, neither can the seller transfer a right in another's thing nor can the buyer acquire a right.
If another's thing has been handed over and the price paid, the buyer indeed does not acquire ownership of the thing, but the seller acquires ownership of the price, except in the case of eviction. But if recent laws establish that a buyer of another's thing, if he acted in good faith, with a few cases excepted, acquires ownership in the thing bought through the handing over of the thing,2 one can stand by this disposition of law also in conscience:3 for civil power, by reason of the common good, in order to render commerce easier and more secure, can transfer ownership in another's thing bought.
- The thing must be integral, not adulterated or mixed; therefore injustice is certainly committed when the mixture of merchandise is so great that, if it were known by the buyers, they would not buy the merchandise at such a price.
It is permitted to sell a mixed thing at the common price if the thing before the mixture is more perfect than that which is commonly sold, but after the mixture is not worse than it.4
The same seems to have to be said concerning those moderate mixtures which are commonly made by merchants and are well known by buyers, at least skilled ones, and yet they do not refuse to buy the merchandise at the common price.
1 Cf. St. Alphonsus, n. 820; Ballerini-Palmieri III, n. 796; Lehmkuhl, Casus consc. I, n. 870.
2 C.G. Section 932 ss.
3 Cf. Lehmkuhl I, n. 1113; Ballerini-Palmieri III, n. 752.
4 St. Alphonsus, n. 820.
590. As to manifestation of defects. Some defects are substantial, which make the thing to be sold either harmful or plainly or at least notably useless for the known end of the buyer; others are accidental, which make the thing neither harmful nor useless, but only less apt; likewise some are manifest, which are easily noticed by all, others hidden, which are not easily noticed generally.
The seller is bound to manifest substantial defects to the buyer not adverting to them, even if he is not questioned; otherwise the contract is invalid because of defect of consent, and the seller is bound to return the price.
If he is questioned about the defects of the thing in general or about some defect in species, the seller is bound to manifest even accidental defects, whether they are hidden or manifest; but if he does not manifest them, and more so if he hides them, he commits deceit, and therefore the contract is rescindable when the error gave occasion to the contract. On the contrary, when the buyer, with the defect known, would nevertheless have bought the thing, it suffices to diminish the price according to the defect.
If he is not questioned about defects, the seller is not bound to manifest accidental defects, not even hidden ones, even if they make the thing less useful; and the contract is valid and licit, provided deceit did not intervene and the price is diminished according to the defect. But if the buyer is so unskilled that he does not see even manifest defects, he must be warned about all of them.1
1 The positive laws almost agree with these things: C.A. Section 871 s.; C.G. Section 459 ss.
591. As to the handing over of the thing. 1. He is bound to hand over to the buyer the thing sold in that state in which it was at the time of sale, and indeed at the time, place, and mode concerning which agreement was made between the contracting parties; and if agreement is lacking, according as is determined by civil law or received custom. Otherwise the buyer has the right of rescinding the contract and requiring reparation of damages.
He is bound to guard the thing sold until handing over as a depositary; wherefore if the thing suffers damage from the fault of the seller, he is bound to repair the damage to the buyer, and indeed before the sentence of the judge if from theological fault, after the sentence of the judge if from juridical fault. But if the thing suffers damage by chance, according to the diverse time at which ownership passes to the buyer, the thing perishes sometimes to the buyer, sometimes to the seller.
The fruits of the thing sold and not yet handed over pertain to him who is its owner, for whom therefore it bears fruit, just as he himself of himself must bear its danger.
If the same thing is successively sold to two persons and is handed over to the second buyer, a distinction must be made according to the diverse time at which ownership is transferred. If ownership was transferred by the first sale, the second buyer cannot acquire ownership, and therefore the thing must be handed over to the first buyer; if ownership was not transferred by the first sale, the second buyer, if he is in good faith, acquires ownership by the handing over of the thing, at least by positive law; that is, the handing over of the thing constitutes a right in the thing, which overcomes the right to the thing of the first buyer. But the first buyer must be kept harmless by the seller.1
1 Cf. Lehmkuhl, Casus consc. I, n. 873.
592. As to guarantee. 1. The seller is bound to furnish the buyer security concerning the tranquil possession of the thing: for the seller acquires a right to the price on this condition alone, that the thing sold pass fully into the power of the buyer; but the thing is not fully in the power of the buyer unless it is guaranteed for the case of eviction.
To evict a thing means to take away a thing by winning it; eviction (Entwindung) is defined: the legitimate disturbance of the buyer from possession of the thing bought, which is claimed, either wholly or in part, by its true owner.
The seller is bound concerning eviction if the cause of eviction was not declared to the buyer; but if the seller knows no cause of eviction, he can agree with the buyer that he not be held concerning eviction. Yet this agreement is null in a seller of bad faith.
The seller is bound to furnish the buyer security concerning hidden defects of the thing, and therefore either to restore the price or to diminish it, according as was said above (n. 590).
593. Obligations of the buyer. 1. If the seller is ignorant of the value of his thing and intends to sell it below the just price, the buyer is bound to warn him or at least to offer the lowest price. Likewise if the buyer is ignorant of the value of the merchandise and offers a price greater than the just price, the seller must warn him; otherwise purchase-sale would be unjust: for neither can it be supposed that the seller wishes liberally to give the defect of the price or the buyer its excess.
He is bound to pay the price, and indeed at the established time if the time of payment was determined; if none was determined, when the merchandise is handed over. But if the price is not paid, the seller is not bound to hand over the thing; and if payment of the price is delayed beyond the time determined either by agreement or by custom, interest also must be paid.
He is bound to accept the merchandise, and indeed at the determined time if any was established; if none was determined, the contract must be committed to execution at once. Wherefore the seller has the right of requiring that the buyer at once accept the merchandise and pay the price.
Whether the practice of merchants is licit by which buyers who paid more than the just amount lose the right of recovering the excess. With fraud excluded, this practice is licit if the seller, to whom less than the just amount was paid by error, equally loses the right of requiring the defect, just as the buyer loses the right of recovering the excess: for on each side then there is equal danger of undergoing damage.