Duties 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

2. 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.

3. 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.

1. 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.

2. 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.

3. 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.

2. 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.

3. 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.

2. 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.

3. 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.

2. 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.

3. 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.

The term goods includes all personal chattels other than things in action and money. It also includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.¹

A contract of sale of goods may be made in writing, or by word of mouth, or partly in writing and partly by word of mouth, or it may be implied from the conduct of the parties. If the value of the goods sold be ten pounds or upwards, the contract cannot be enforced by action unless the buyer accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. This is a rule of the external forum and does not affect the conscience.

¹ Sale of Goods Act, 1893.

The subject-matter of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale. The contract may be absolute or conditional. Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract, and in the forum of conscience on the intention of the parties. In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is: (1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods; (3) an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party not declared or known to the buyer before or at the time when the contract is made.

According to English law there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

1. Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgement, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.

2. Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed.

But whatever may be the rules of law for the external forum, in the forum of conscience the contract will be invalid whenever on account of hidden defects the thing sold is substantially different from what the buyer thinks that it is, for then there is no consent in the same matter and the contract is void by natural law. If hidden defects only lessen the value of the thing, but do not make it substantially different from what it appears to be, the price should be accommodated to the value, but the seller is not bound to point out the defects to the buyer. If asked about them, the seller should make known even accidental defects, or say that he does not guarantee their absence. _

In execution of the contract it is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

Whether it is for the buyer to take possession of the goods, or for the seller to send them to the buyer, is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller’s place of business, if he have one, and if not, his residence, provided that if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.

Where, under the contract of sale, the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts the goods so delivered, he must pay for them at the contract rate.

Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract rate.

Where the seller delivers to the buyer the goods he contracted to sell, mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.¹

Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.²

Notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law (a) a lien on the goods or right to retain them for the price while he is in possession of them; (b) in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; (c) a right of resale as limited by the Sale of Goods Act.

Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transitu where the property has passed to the buyer,³

¹ Sale of Goods Act, secs. 27-30.

² ibid., sec. 36.

³ Sale of Goods Act, sec. 39.

755. (A) Principle: The thing sold must be at least morally the same as the thing sought, whether as regards species, or as regards qualities. - It is said morally, because if the thing sold indeed differs physically from the thing sought, but morally, and, so to speak, commercially is the same, equally useful to the buyer and apt for the intended end, the contract has force. - Otherwise it is invalid and illicit, for consent concerning one and the same thing is not present, since the seller has handed over a thing which, in common estimation, differs substantially from that which the buyer sought.

756. (B) Practical conclusions: (a) Therefore it is not permitted to substitute an artificial thing for a natural thing sought by the buyer, e.g., wine made chemically, not from the vine, - butter which is nothing other than oleomargarine, etc. Nevertheless, after the fact, if the thing handed over is not harmful, and besides the price is equivalent to the thing sold, restitution as regards the past is not to be urged, on account of the good faith which generally exists, but merchants are to be warned not to do this henceforth.¹

¹ Sometimes merchants act thus because buyers do not wish to pay the price of the natural thing; then injustice indeed is not committed, but they would act more honorably if they openly said that the thing cannot be acquired at such a price.

(b) Nor is it permitted to adulterate things sought by the buyer, or to mix them with others of cheaper quality;² under this heading, he acts unjustly who so adulterates or mixes merchandise that buyers would not wish to acquire it at such a price, if the matter became known to them. But if the mixtures are such as are customarily made by merchants, and do not harm health, and besides the price is proportionately diminished, there is not injustice strictly so called, nor therefore an obligation of making restitution.

² How many and how great adulterations of this kind are, P. Delay shows in various facts in our days, in Le Correspondant, Feb. 23, 1903, p. 782-792. Some of these adulterations are specially prohibited by civil law; for France, cf. Cod. pen., art. 423; Law of March 27, 1851; May 5, 1855; February 4, 1888; August 14, 1889; July 11, 1891; July 24, 1894; April 16, 1897; in Riviere, pp. 334, 392, 994, 1059, 1120, 1253.

2. On The Manifestation Of Defects.

757. (A) By natural law: (a) the seller must manifest to the buyer substantial defects, namely those which render the thing harmful, or unfit for the known end of the buyer; otherwise, true consent is not furnished, since no one intends to buy a harmful or plainly useless thing.

(b) As regards accidental defects, which only make the thing less useful for the intended end, the seller is held to manifest them if he is asked about them; otherwise he would use deceit and fraud, and thus would wound justice; a fortiori it is unjust positively to deceive the buyer by words or deeds, by using, e.g., illegitimate means so that the merchandise appears better than it is; for then a lie is committed, and indeed a harmful one. - But if he is not asked, the seller is not strictly held to lay open the defects of the thing, especially manifest ones, unless the buyer is inexperienced and says that he entirely trusts the seller; yet the price must be diminished on account of those defects, lest, all things considered, the highest price be exceeded. The reason is that the buyer himself must take care lest he buy a defective thing; if he is endowed with common skill and prudence, he can perceive manifest defects; but if he lacks this skill, he can and must ask.

758. These principles indeed are admitted speculatively by almost all. But in practice, there are not a few merchants who think it is licit in every case to conceal defects, even hidden ones, provided, once the contract has already been completed, they warn the buyer about the vices of the thing which could harm him. And these indeed, after the fact, are to be excused from so much, if not from the whole, nor are they to be compelled to restitution, unless they sold the thing above the highest price; but they are prudently to be warned not to deceive buyers henceforth.

759. (B) By French civil law,¹ redhibitory vices are recognized, on account of which the buyer can either 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.

¹ Cod. civ., art. 1641-1649, Supplem., p. 149*; as regards redhibitory vices of animals, cf. Law of July 21, 1881; August 2, 1884; July 31, 1895, in Riviere, pp. 771, 902, 1318, and Supplem., p. 149*, note 1.

Now for redhibitory vices, four conditions are required: (a) that the vices be hidden; for when they are manifest, so that they can be detected by common diligence, the rule is: let the buyer beware! (b) unknown to the buyer: for if, although hidden, they had been detected by the buyer, he is judged to have wished to acquire the thing, notwithstanding the defect; (c) existing at the time of sale, at least virtually; for, after the sale has been completed, the buyer himself undergoes the peril of the lot: hence he must seek rescission of the contract as soon as possible; (d) impeding or diminishing the utility of the thing, so that the buyer would not have bought it if he had known the defects.

When these four things are verified, the seller is held concerning redhibitory vices, whether he knew them or not. Nevertheless, if he is of good faith, he can exempt himself by a special pact from every obligation as regards defects; and, if he did not make this pact, he is held only to restore the price of the thing and the expenses arising from the contract; but if he is of bad faith, he does not enjoy this privilege, but must compensate all damages brought upon the buyer.

If the thing sold has perished from a redhibitory vice, the seller is held to return the price and compensate damages; otherwise, if it has perished by fortuitous event or by the buyer's fault.

3. On The Handing Over Of The Thing Sold.

760. (A) The seller is held to hand over the thing sold to the buyer, that is, to transfer it into his power and possession; and indeed in that state in which it was at the time of sale, with all fruits which he has received from the day of the contract entered; at the time, place, and manner fixed beforehand, and if a pact is lacking, according to the prescriptions of civil law¹ or the custom received in this place. Otherwise, the buyer has a personal action against the seller, and a real action concerning the thing sold. - Nevertheless, if the buyer does not pay the price at the time fixed beforehand, or falls into a state of bankruptcy, the seller is not held to hand over the thing.

¹ Cod. civ., art. 1604-1624, Supplem., p. 146*; Planiol, n. 1448-1456.

761. (B) The seller is likewise held faithfully to guard the thing as a depositary until it is handed over to the buyer; wherefore, if by his fault it perishes or suffers detriment, he is held to repair the damage; but if by fortuitous event, he undergoes the damage who is the owner of the thing; now in France, dominion is transferred to the buyer even before handing over.

(C) Carrying away (l'enlevement de la marchandise) differs from handing over of the thing; this is done at the buyer's expense, unless it has been otherwise established by agreement or custom.

4. On The Assurance Of The Thing Sold.

The seller is held to furnish security to the buyer as regards possession of the thing and hidden vices.

762. (A) He must furnish security concerning the tranquil possession of the thing, against eviction; but eviction has place when the buyer is juridically compelled to hand over the thing bought to another, either wholly or in part, because, e.g., a mortgage creditor vindicates it. - And rightly indeed; for the seller does not acquire a right to the price except insofar as he transfers to the buyer the quiet possession of the merchandise. - Whence, if the buyer is disturbed, he must have recourse to the seller: but the latter will try to impede eviction, and, if he does not impede it, he is held to repair all the damages which the buyer has undergone, namely the price, the expenses of the contract, expenses made for pursuing his right, etc.

Nevertheless the seller is excused from assurance: (a) if he expressly said that he did not wish to furnish security against eviction, provided he is of good faith; or implicitly, by openly declaring the cause of eviction; for then the buyer takes upon himself the danger of eviction; (b) if the cause of eviction arose only after the sale, e.g., because of prescription which the buyer, although warned concerning this matter, did not interrupt; or if the buyer is evicted by his own fault.

(B) Moreover, the seller is held to furnish security to the buyer as regards hidden vices of the thing, as was said above, n. 757-759, and therefore to restore the price, or diminish it.

763. 1. To pay the price at the place and time fixed beforehand; and, if nothing special has been agreed upon, at the place and time at which the thing is handed over or ought to have been handed over; for if the thing has perished by fortuitous event, once the contract has already been entered, the buyer is not freed from paying the price. - If payment is deferred beyond the time fixed beforehand, a legal increase is owed provided this was agreed upon, or payment was expressly required, or the thing is fruitful; for otherwise damage is brought upon the owner. - Finally, if the buyer in no way pays the price, the seller can seek rescission of the contract, lest otherwise his rights be injured.

764. 2. To take away the thing, and indeed at the determined time, and, if nothing has been established, as soon as morally possible, lest from delay the seller suffer some damage. - If the buyer has neglected to take away the thing, the seller is no longer held to guard the thing, and, if he has preserved it, he can recover the expenses made for this reason. In France, when the matter concerns movable things, the contract is resolved in favor of the seller if the thing has not been removed after the time fixed beforehand (art. 1657).

292. Merchandise, or the object of sale, can be any thing estimable in money and belonging to the seller, unless a special prohibition of positive law is present.

It is said, 1. "any thing estimable in money," whether that thing be corporeal or incorporeal, such as a right of nobility. It is not lawful to buy or sell spiritual things for a temporal price, for this would be simony. The thing must be valued in money, because otherwise there is no longer a sale properly so called, but an exchange. Hence if someone gives, e.g., ten sheep for a horse, it is an exchange rather than a sale. These three contracts must be accurately distinguished: exchange, purchase-sale, and currency exchange. For if one thing is delivered for another, there is an exchange; if a thing is delivered for money as a price, there is purchase-sale; if one kind of money is delivered for another, there is currency exchange.¹³⁴

It is said, 2. "belonging to the seller." Therefore the sale of another's thing is invalid; compare, however, civil laws which sometimes establish otherwise, as was said above, n. 213, concerning a possessor in good faith. Those laws can be observed also in the forum of conscience. It is not required, however, that the seller actually possess the thing; it suffices that he have it in expectation, e.g., grain which is still growing in the blade. But nearly all modern laws prohibit an heir from selling a future inheritance, because such a contract is considered shameful, as inducing a desire for the death of the testator.¹³⁵

It is said, 3. "unless a special prohibition of positive law is present." For certain things cannot be sold while preserving the common good, e.g., certain weapons, poisons, or even precious paintings, etc.

¹³⁴ To these contracts of exchange and currency exchange, as also to the very common instrument which is called a cheque or bill of exchange (Wechsel), the same principles are to be applied which hold for purchase and sale.

¹³⁵ German Civil Code §§ 310, 312.

293. Obligations of the seller.

1. The seller must not demand an unjust price, concerning which there will be discussion below.

2. By natural law the seller is always bound to disclose to the buyer the substantial defects of the thing to be sold. The reason is that otherwise the consent of the buyer will be invalid, and consequently the entire contract invalid. Positive laws in some cases admit the so-called redhibitory action (Wandelungsklage) if a defect of the thing was concealed. Those are considered substantial defects (Hauptmängel) of the thing which render it notably useless for the primary purpose known to the buyer. But with regard to accidental defects a distinction must be made: if the buyer expressly asks concerning these defects, the seller is bound to answer according to the truth, or at least to decline an answer by saying, e.g., I sell the thing in the state in which it now is. For then the buyer can provide for himself; if he does not do so, he will have to bear the loss. But if the buyer does not expressly inquire concerning these defects, then the seller cannot by frauds induce him into error and thus cause him great damage; therefore he is bound to disclose entirely hidden defects which notably diminish the thing, but he need not indicate defects which any prudent person can easily detect.

St. Thomas teaches excellently concerning this matter:¹³⁶ "Concerning a thing which is sold, a threefold defect can be considered. One is according to the species of the thing, and if the seller knows this defect in the thing which he sells, he commits fraud in the sale; hence the sale is rendered illicit.... Another defect is according to quantity, which is known by measure; and therefore if someone knowingly uses a deficient measure in selling, he commits fraud and the sale is illicit. Hence it is said:¹³⁷ 'Thou shalt not have divers weights in thy bag, a greater and a less; neither shall there be in thy house a greater bushel and a less,' and afterward it is added: 'For the Lord abhorreth him that doth these things, and He hateth all injustice.' The third defect is on the part of quality, as if someone should sell a sick animal as healthy; if someone knowingly does this, he commits fraud in the sale, whence the sale is illicit. And in all such things one not only sins by making an unjust sale, but is also bound to restitution." As is evident from the example adduced of the sick animal, the Angelic Doctor speaks of a quality redounding upon the substance; but if there is question of a truly accidental quality, there is no grave obligation of restitution.

3. The seller is bound to deliver the thing physically, or at least morally, the same as that which the buyer intends to acquire. I say, however, at least morally the same; for even if the thing given is physically not altogether that which the buyer thought he was acquiring, nevertheless, if morally it is the same, i.e., almost equally good and useful to the buyer and worthy of the price offered, then there is at least no grave injustice.¹³⁸ E.g., when guests ask for Moselle wine in an inn and the innkeeper gives them wine almost equally good which, however, was not grown on the banks of the Moselle, he does not seem gravely to injure justice, provided, however, that he does not exceed the just price.

4. The seller is bound to deliver the thing sold to the buyer in the state in which it was at the time of the sale. Civil laws are wont to establish, or the contracting parties specially determine, whether the seller or the buyer receives the fruits of the thing before delivery; who ought to bear the expenses of custody; for whom the thing perishes, etc. All these statutes are to be observed faithfully.

¹³⁶ S. theol. 2, 2, q. 77, a. 2.

¹³⁷ Deut. 25:13.

¹³⁸ S. theol. 2, 2, q. 77, a. 2 ad 1.

294. Scholion. On diminution of weight or measure. St. Alphonsus¹³⁹ asks: "Whether one is excused [from injustice] who uses a diminished measure in order to obtain a just price which otherwise he would not obtain because of an unjust rate or an unjust monopoly of buyers? Lugo, Laymann, Palaus, and Sporer with Soto, Valentia, and Toledo, and the Salmanticenses with Rebello, Salas, and Dicastillo affirm this as very probable. The reason is that then he justly redeems himself from vexation." These things, however, are to be understood with a grain of salt and in our times can very rarely be reduced to practice; for it is said in Sacred Scripture: "A deceitful balance is an abomination before the Lord."¹⁴⁰ Especially, the excuse often brought forth by merchants is not sufficient, namely, that they cannot withstand "competition" if they do not diminish weight and measure. For no injury is inflicted upon them by the buyers. Nor may they say that the weight, even thus diminished, corresponds to the just price. For although this is true absolutely, nevertheless it is false after agreement has once been legitimately made concerning such a price and such a weight.¹⁴¹ They can, however, defend themselves against other "competitors" by accusing them of illicit machinations, or unfair competition (unlauterer Wettbewerb, concurrence déloyale). Such diminution of weight or measure is lawful only: a) if universal custom so bears and this can easily be known by the buyers; b) if buyers by unjust means, e.g., by so-called "syndicates" or boycott, compel sellers to a truly unjust price, because then the sellers can defend themselves.

Rules to be attended to by the confessor. Almost innumerable are the frauds which are wont to be committed in the sale of things. To discern whether from those committed there arises a grave obligation of restitution, the confessor should attend to three things:

a) whether the damaging is truly, formally, and efficaciously unjust, and this 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 the custom in force is in such a sale.

¹³⁹ Theol. mor. l. 3, n. 822.

¹⁴⁰ Prov. 11:1.

¹⁴¹ Thus also Billuart, De contract. diss. 5, a. 3.

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).

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).

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).

I ASSERT that the seller is held to reveal a grave defect of the thing known to himself; otherwise he is held to all damage, even resulting; for instance, if he gives a diseased sheep which infects the flock. l. Iulian. ff. de act. empt. et l. 1. C. de aedilit. says D. Thom. 2. 2. quaest. 77. art. 3. D. Bonan. in speculo animae, cap. 2. §. secundus ramus principalis, Molin. t. 2. disp. 353. Nauar. cap. 23. num. 89. Medin. C. de Restit. quaest. 34. Tanner. disp. 4. quaest. 7. num. 56. Fagund. de contract. l. 5. cap. 38. Baldus, v. Venditio, num. 14. and the rest with these; and Diana Tract. de contr. after D. Ambr. l. 1. de offi.

But if a hidden grave defect gave the buyer cause for the contract, which knowing it he would not have entered, the contract is void, and there is given to him the redhibitory action for taking back his price, the thing being returned: l. 1. et l. si sciendum, 19. ff. de aedilit. edicto, which action lasts for six months, l. si tam: n. 4. vers. Non nocebit l. Per sex menses, ff. eodem. If he has not used it within those six months, he can within another half-year bring the action of estimation, which lasts for a year, l. si tamen cit. The time of both actions begins from the day of the buyer's knowledge.

But if ignorance of the defect does not give cause to the contract, but falls only into this, that the buyer would still have bought, even at a lesser price, the contract is valid, as D. Anton. says, 2. p. t. 1. cap. 17. §. 6. Caiet. loc. cit. D. Thom. Sotus l. 6. de iust. quaest. 3. art. 2. Less. l. 2. cap. 7. Fagund. num. 10. Baldaeus num. 14. Yet the seller is held to give back the greater amount. The same says num. 15. if the defect is not grave. But the buyer is to be warned not to resell it dear in turn.

SOME ADD, however, that if the buyer, trusting his own judgment, chooses some one thing out of many, asking nothing except about the price, the seller does not sin against justice even if he does not disclose the hidden defect, provided he does not sell above the just price, but deducts from the price an estimate of the defect. So D. Thom. art. 2. and 3. Sotus l. 6. quaest. 3. art. 2. Antonin. 2. p. tit. 1. cap. 14. §. 6. Less. t. 1. de Iustitia l. 2. cap. 21. num. 91. dubit. 11. Molina disp. 352. Ludou. Lopes 2. p. Instruct. consc. cap. 42. Tanner. num. 59. — provided, however, the seller does not cover the defect by deceit, mixing that thing with other excellent ones.

But if the defect is patent and manifest, in the external forum no action is given against the seller, unless the buyer is defrauded beyond half the just price. It is gathered from Leg. 1. §. si intelligatur. And Leg. si tamen §. si quis, ff. de aedilit. edict. See Fagundez num. 23.

In the internal forum, however, if the price be equal, he is held to nothing. So D. Thom. quaest. 77. art. 3. Yet if the seller perceives that the buyer is ignorant of the defect, he is held to warn him, by the common opinion with Molina disp. 353. But D. Thom. with others holds the opposite, nor does Tannerus refuse it, num. 62.

For further understanding, note: when someone sells or buys beyond half the just price, there is given in the external forum an action against him who commits the injustice, and he is bound either to restore the excess or defect of price, or to have the contract rescinded, l. 1. C. de rescindenda vendit. cap. cum dilecti, et cap. cum causa de emptione et venditione. Moreover it is a mortal sin to violate the mean of the just price, in which justice consists, namely by exceeding the highest in selling, and by diminishing below the lowest in buying. The reason is, because each departs from the mean in which the virtue of justice consists; otherwise even fraudulent measures would be licit against that, Deuter. 29. Thou shalt not have diverse weights in thy sack, as the holy Doctor infers in speculo animae, cap. 2.

I CONCLUDE as a general rule that in every sale there is to be deducted as much as the defect of the thing itself is worth; otherwise there will be injustice, as Caspens. notes, sect. 10. adding that the seller can keep a merely negative silence, demanding, however, only the just price, if he cannot find a just price for his good elsewhere. And this is true even if he knew the buyer would not have bought, had he known the defect, and so bought involuntarily; nor would he act against this, in rebus. §. Item, qui sciens, ff. commodati, statuentem, that the seller reveal the hidden defects of the thing; otherwise an action is granted against him.

He says this is the COMMON opinion; for if we wished to make such contracts invalid, innumerable lawsuits and dispensations would arise, which are demanded in this way even if they would be invalid without falsehood, since some things are tacitly not to be expressed by law, which, if expressed, would not be granted. It is the same in donations, almsgivings, legacies, testaments, elections, presentations, and other things of this kind. Therefore otherwise almost nothing in human dealings would ever be firm, nothing ratified, as Valentia says, quaest. 20. p. 4. and innumerable lawsuits would boil up to void purchases, to the great inconvenience and detriment of the Republic.

THEREFORE he answers the opposite reason thus: that a contract of this kind is voluntary, unless the buyer was deceived simply. But this is not true, as I said.

On that law, Molina says, disp. 392., it is to be understood when the defect is grave, and a harmful and less useful thing is sold. In this sense I do not refute Caspensem, as I said.

On the other hand, even the buyer of a gem from a peasant who does not know it, ought to buy at the just price, not cheaply, as Tanner. warns, num. 67. and Molina disp. 253. num. 12. Yet that a field can be bought, in which I know there is a treasure, at the common price, they teach with D. Thom. quaest. 66. art. 5. ad 2. Valentia quaest. 20. p. 4. Sù under the word emptio, Tanner. num. 66.