In Sales

It is never lawful to co-operate formally with another’s sin, for it is obviously to wish evil, which is always sinful. Nor is it lawful to co-operate materially with the sin of another when the action of the secondary agent is itself wrong, as is also clear. But provided the action of the secondary agent is not itself wrong, but right, or at least indifferent, and he has no evil intention, and furthermore there is a just cause for permitting the sin of the principal agent, material co-operation in the sin of another is not wrong. In such circumstances, the secondary agent does nothing that is wrong in itself; he foresees, it is true, that another will take advantage of his action in order to commit sin, but the secondary agent is only bound to prevent this out of charity, which does not bind with relatively serious inconvenience, and this is present whenever there is a just cause for permitting the sin of the principal agent. This is merely the application of the principle of a double effect which was laid down in the Book on Human Acts.¹

The cases to which this doctrine may be applied are very 732) numerous, but the safe application is difficult and attended with risk. The chief difficulty lies in determining the gravity of the cause which will justify one in co-operating materially in another’s sin. No general rule can be laid down on the point beyond saying that a graver cause is required when there is question of a graver sin, when the co-operation is more proximate, and when it is more probable that the sin would not be committed at all if the co-operation were denied. The following examples taken from approved authors are given as illustrating the application of the doctrine, and they may be used to show what may be done in similar cases.

(a) I may lawfully ask for the sacraments from a bad priest, though he commits sin in administering them, for he need not sin thereby unless he likes, and his malice should not deprive me of the benefit of the sacraments to which I have a right.

(b) A dealer may sell to all buyers things which are in themselves indifferent, though they can be put to a bad use, as firearms, unless he is certain that they are required for a bad purpose. Even in the latter case a correspondingly serious inconvenience or loss will excuse his selling, especially if his refusal will not hinder the sin on account of the buyer being easily able to procure what he wants elsewhere.

(c) Intoxicating drink may not be sold to one who has already had too much. Many authors, however, allow this to be done when it cannot be refused without provoking to violence and quarrelling. This excuse would rarely avail in England at present, because the law forbids such sale, the strong arm of the law thus being on the side of morality.

(d) It is not lawful to sell things of which the use is ordinarily sinful, except when their lawful use is guaranteed. And so booksellers are not allowed to sell infidel or immoral books except to such as require them for good reasons and with the requisite permission. The same doctrine applies to drugs and instruments used for immoral purposes, as well as to poisons. Publishers, too, sin by publishing books which are dangerous to faith or morals. Compositors and others employed in printing should not work for firms which are known to publish bad books; as they are usually ignorant of the nature of the work which they help to bring out, their ignorance, the remoteness of their co-operation, and the ease with which other workmen can be found to supply their place, will ordinarily excuse them from sin if an odd bad book or two are published by an otherwise respectable firm.

(e) Dancing may be a perfectly innocent amusement and it may be a dangerous occasion of sin. No general rule, therefore, can be given as to when dancing must be avoided. Much depends upon the company who join in the dance, upon the way of dancing, and upon the subjective disposition of the dancers. If there be nothing objectionable in any of these respects, there is no reason why a young man or a young woman should not be allowed to dance with due caution. If there be ground for objection, and especially if sin has already been frequently committed in similar circumstances, there is an obligation to abstain, unless the occasion of sin is necessary and can be made remote by taking proper precautions. If sin only follows occasionally, there will be no strict obligation to abstain from dancing, provided due precautions be taken in future.

(f) The question of theatre-going is settled on similar grounds. There are all sorts of theatres and all sorts of plays represented in them, and.all sorts of actors and actresses. To go and listen to a bad and suggestive play arouses the passions, leads to sin, and encourages evil in many ways. It will, then, as a rule, be grievously sinful to go to the theatre to see such a play. The confessor will usually be able to judge best whether in any particular case it is lawful to go to the theatre by asking whether in the past it has frequently led to sin. If it has done so, it is a proximate occasion of sin, and must be avoided as far as possible. In other cases, unless the play or the theatre is known to be bad, there will be no strict obligation to refrain from going.

¹ St Alphonsus, lib. 2, tract. 3, n. 63.

The foregoing rules tell us what has to be done when one discovers that he has possession of the property of another, or when such property has perished while in his possession, But suppose that while he was in good faith the possessor of another’s property, he sold it to someone else, and afterwards he finds out that it was not his to sell, what are his obligations in that case ¹ No general answer can be given to this question; it will be necessary to distinguish according to several possible hypotheses.

The sale may have taken place in market overt, and then though the seller could not give a valid title to the property, yet the law does so. The Sale of Goods Act, 1893, sec. 22, makes the following provision: “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.”

According to Indermaur, ‘‘ By sale in market overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt,””²

In spite, however, of sale in market overt, “‘ Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, “notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.’”” In this case on conviction of an offence which involves larceny, the court, if the accused has sold the property to an L: innocent purchaser, on restitution of the property to the owner, may order the price paid by the purchaser to be repaid to him out of any money found on the convict when arrested. This provision is in addition to that allowing compensation to a person injured by a felony.”³

If the sale did not take place in market overt, and the stolen property has not been restored to the true owner, the seller is bound to nothing in justice, according to a very probable opinion. For the property is no longer in his possession or under his control, so he cannot restore it to the owner; if he received money for it, he received it in good faith for value, and when he has mixed it with his other moneys it would seem that he makes it his own.⁴ It would seem that this is in accordance with English law: ‘‘ A mesne possessor acquiring the goods innocently from the thief, and reselling before conviction, is under no obligation in trover to the original owner.”⁵

It was said above that the seller is bound to nothing in justice, but if without relatively serious inconvenience to himself he can, by giving the requisite information, procure the restoration of the property to its rightful owner, he will be bound to do this out of charity.

If the property was not sold in market overt, and if it has been restored to the rightful owner, the purchaser can demand back the purchase money from the seller, rescinding the contract for failure of warranty which is implied in every such sale: ‘“‘ 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.’”⁶ These solutions would seem to be tenable whether the mesne possessor obtained the property in good faith by purchase or by gift, and whether he gained anything or not by selling it. For although one who possesses another’s property either in itself or in its equivalent is bound to make restitution to the owner, a mesne possessor who has sold it in good faith to another no longer possesses it even in its equivalent, for the price after being mixed with his own moneys is not its equivalent; and although he is the richer by the transaction, yet it cannot be said that he is the richer unjustly, and so he is not bound to restitution.⁷

It is a disputed point among theologians whether a purchaser in good faith from a thief of stolen goods, on finding out that the goods were stolen, may return them to the seller if he cannot otherwise get back his money. It would seem that in conscience he may do so, for in so doing he does not wrong the rightful owner; he replaces the goods where he found them, so to say, and they are in no worse a position through having been for a time in his possession. He is justified in leaving them there if he cannot otherwise save himself from loss.⁸ Such an action, however, might bring him into collision with the law of the country. In England it might amount to misprision of felony or be considered compounding a felony.

¹ Principles of the Common Law, p. 323, 6th ed.

² Sale of Goods Act, 1893, sec. 24.

³ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁴ Stephen, 2, p. 60.

⁵ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

SALE is a contract by which the seller transfers the ownership of a certain commodity to the buyer in consideration of a fixed price. The English law on the sale of goods is different from that on the sale of real property, and so we will divide this chapter into two articles; in the first we will treat of the sale of goods, and in the second of the sale of realty.

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. _

By law the price may be fixed by contract, or may be left to be fixed in manner thereby agreed on, or it may be determined by the course of dealing between the parties. If no price is thus determined, the buyer must pay a reasonable price, and what is a reasonable price is a question of fact dependent on the circumstances of each particular case,¹ In conscience, however, the price of things sold does not depend merely on the agreement of the parties. In contracts the equality which justice demands must be observed, and so in sale the price must be equivalent to the value of the thing sold. We do not mean the individual value in use to the buyer or to the seller, but the social or exchange value which the thing possesses. This value will be represented by what the law calls a reasonable price, and sometimes it is fixed by law, so that certain commodities and services have a legal price. In the Middle Ages there was a legal price for most of the articles of commerce, and theologians taught that there is an obligation in conscience to adhere to the legal price as long as the law is in force. In cases where the law has not determined the price, theologians teach that there is an obligation in conscience to adhere to the natural or common price of the commodity. This is not something purely subjective, much less is it purely individualistic; it depends upon supply and demand, upon the costs of production, the manner of sale, and on other factors. It is proximately determined by the common judgement or the common estimation of those who are best acquainted with all the factors which determine social value in the particular case. This is the famous theological doctrine of the just price of commodities, and it only needs to be properly understood to be appreciated as eminently practical and equitable. The just price of a commodity is not something which can be mathematically determined; it admits of a certain latitude, like everything that depends on a general moral estimate. Theologians distinguish the highest, the lowest, and the mean just price. The highest is that above which the commodity in question is not commonly sold, the lowest is that below which it is not commonly sold, and the mean is between the two. Justice will be observed if the price at which a thing is sold is not above the highest nor below the lowest at which the thing sells at the time and in the place in question. As a rule, market prices are just, because they are settled according to the common estimate of buyers and sellers as to what are fair and reasonable prices under the circumstances, Here theologians usually discuss a number of questions concerning the price of commodities in particular cases where there is special difficulty. In the case of rare or single objects, such as a first folio of Shakespeare, or a painting by a great master, or a winner of the Derby, where there is no market price, many theologians teach that no injustice is committed whatever be the price received from a buyer who acts with full freedom and knowledge. Fancy prices may be foolish, but they are not unjust. No difficulty is made by theologians in allowing one to sell at the current rate who has certain information of an imminent fall in price. A merchant may also buy things of value from uncivilized owners for trinkets. In the place and among the people concerned there is equality of value between merchandise and price. A seller is justified in asking a higher price—a price of affection the theologians call it—for what he cannot part with without more than ordinary pangs. The seller may not, however, charge for some special value in use which the thing sold has for the buyer. That belongs to the buyer, not to the seller, who cannot therefore sell it.

¹ Sale of Goods Act, 1893, sec. 8.

The following rules as to the transfer of property in the goods sold are given in the Sale of Goods Act, 1893: Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.

Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: Rule I.—Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

Rule II.—Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof.

Rule III.—Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, ‘Measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done and the buyer has notice thereof.

Rule IV.—When goods are delivered to the buyer on approval or “‘on sale or return,” or other similar terms, the property therein passes to the buyer: (a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.

Rue V.—Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.

Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer; but when the property therein is transferred to the buyer, the goods are at the buyer’s risk, whether delivery has been made or not.

Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.

As a general rule, the buyer acquires no better title to goods than the seller had, but where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.

Market overt in the country is only held on the special market-days provided for particular prescription; but in London towns by charter or every day, except Sunday, is Sale of Goods Act, 1893, secs. 16-18. 2 ibid., sec. 22. market-day. The market-place or spot of ground set apart for the sale of particular goods is also in the country the only market overt; but in the city of London every shop in which goods are exposed publicly to sale is market overt, for such things only as the owner professes to trade in. It is of the essence of the custom that the sale should be an open and public sale, so a sale in a salesroom and apart from the shop, or at a wharf, is not within it. Nor is sale by sample, the bulk sold not being exposed in the shop. Nor does the sale of horses come within the rule of market overt.

When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect of title.

Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.

Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof to any person receiving the same in good faith, and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.¹

¹ Sale of Goods Act, secs. 23-25.

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.

AUCTION is a sale of property, whether real or personal, by which a person binds himself to transfer the ownership of the same to the highest bidder according to the conditions of sale. There are various methods in which the sale is conducted, and descriptions of the property to be sold and the conditions of sale are usually notified to the public by printed particulars of sale or by catalogues, and by the auctioneer himself. The bidding proceeds orderly, each bid being in the nature of an offer, which may be revoked until the auctioneer signifies his acceptance, usually by a stroke of his hammer, By this a contract is concluded with the last bidder, and the property becomes his. Ordinarily, however, the contract cannot be enforced by English law unless there is some memorandum of it in writing signed by the party to be charged therewith, or by his agent in that behalf.

II. Cooperation in bad books, newspapers, etc. 1. It is illicit to compose, publish, and undertake for printing bad writings, because those acting thus harm the common good most gravely. There is added the fact that those who compose act in this way, while others easily proceed in this way with the intention that the bad writings be bought and worn out by use; in which case they must be charged with formal cooperation (n. 555).

2. It is lawful for a grave cause to perform those things which are remotely related to printing or reading, such as procuring paper and other implements, preparing paper, arranging printed sheets or books, carrying bought books to buyers. This follows from what has been said about remote cooperation in common harm (n. 556). For a very grave cause those things are lawful which are less remotely related to printing and reading, such as arranging type or inking it, placing paper underneath, turning the press, correcting printed sheets. Yet if there is question of a printing shop specially erected to attack good morals or religion, for example by communistic, socialistic writings, etc., by reason of scandal it will scarcely ever be right to remain in it. Moreover, everyone should strive that provision for support be made in another way.

3. It is illicit to circulate bad writings by commending them, because there is formal cooperation. Nor is it of itself lawful to expose them publicly or announce them, for example in shops, in newspapers, at railway stations. Yet these things of themselves involve mere pronouncement (notification), not invitation, and therefore of themselves contain material cooperation only; and this, even with common estimation considered, is sufficiently probable. From intention, indeed, commonly approval and invitation are had; but if one proceeds in the name of another, that is, of the one commanding, abstraction can be made from a depraved intention. This being posited, on the part of the agent there remains only material cooperation, which seems to be excused for a very grave cause. Yet one should strive that as soon as possible he obtain a livelihood in another way.

4. With respect to the sale of bad writings, first note these things from the Code: "The prohibition of books¹ brings this about, that a book without due permission can neither be published, nor read, nor retained, nor sold, nor translated into another language, nor communicated with others in any way" (can. 1398, § 1). Sellers of books should not sell, lend, or retain books treating professedly of obscene matters; they should not have other prohibited books for sale unless they have obtained due permission from the Apostolic See, nor should they sell them to anyone unless they can prudently judge that they are legitimately sought by the buyer (can. 1404). With these things noted, I say:

a) Owners of bad bookstores not only most gravely violate public honorableness and most gravely harm the common good, but also, since they proceed with this intention, that others buy and wear out by use what has been bought, are guilty of formal cooperation (n. 555). I have said owners of bad bookstores; since a somewhat milder judgment must be made concerning lower assistants: for on the one hand they are more easily immune from that depraved intention; on the other hand the acts placed by them do not necessarily involve approval of sin - neither of themselves, as is clear, nor from the circumstances, because it can be believed that they intend only the support of life. Hence they can be immune from formal cooperation (n. 555), and therefore can be excused for a proportionate cause. Yet, with scandal and the danger to which the faith and morals of the assistants are often exposed considered, a proportionate cause will be present only with difficulty. Moreover, one must always strive that livelihood be provided in another way.

b) With respect to others - for example, to owners of bookstores which cannot be called bad, and their assistants - this must be said: to sell bad writings is of itself illicit, unless there is question of those to whom it is sufficiently clear that reading is lawful; to commend the purchase of bad writings is simply illicit, unless again there is discussion of those who enjoy permission to read them.

5. To write, from time to time, some article for a bad newspaper is lawful for a reasonable and just cause. Yet attention must be paid to can. 1386.²

6. To subscribe to a bad newspaper is lawful for a grave cause, for example if someone needs it for conducting business.

7. To announce in a bad newspaper one's things to be sold is lawful for a middling cause. Yet work must be done so that announcements of this kind do not become necessary, and that they be made in good rather than bad newspapers.

8. To display bad papers in one's inns or houses is illicit; nor is it lawful from the fact that those gathering there seek them, otherwise being about to go elsewhere. Yet if such a paper is asked for on account of announced matters necessary to know, it is lawful to display it in a separate place. Further, on account of notable loss of profit otherwise to be feared, it is lawful to display those newspapers which only now and then contain something dangerous.

Moreover, what is to be said about the prior censorship of books and their prohibition and about penalties should be compared.

¹ "The things prescribed under this title concerning books are to be applied to publications, newspapers, periodicals, and any other published writings, unless something else is clear" (can. 1384, § 2).

² Canon 1386 states: 1. Concerning secular clerics: "Secular clerics are forbidden without the consent of their Ordinaries, and religious without the permission of their major Superior and the Ordinary of the place, to publish books, even those which treat of profane matters, and to write in newspapers, sheets, or periodical pamphlets, or to moderate the same" (§ 1). 2. Concerning Catholic lay persons: "In newspapers, sheets, or periodical pamphlets which are accustomed to attack the Catholic religion or good morals, not even Catholic lay persons should write anything, unless a just and reasonable cause advises it, approved by the Ordinary of the place" (§ 2).

II. Cooperation of workmen and merchants. 1. It is lawful to make and sell indifferent things, even under the sole title of ordinary profit; and this holds even if you know that many will abuse them. Nor is there an obligation of inquiring into the intention of buyers. If in a particular case abuse is rightly feared, a cause proportionately grave is required, and it must be graver if harm to be inflicted on a third party is feared. Hence in practice it will scarcely ever be lawful, for example, to sell weapons which evidently are sought for killing, or a drug which is judged to be bought for procuring abortion (St. Alphonsus, II, 66, with note f., 71, 76; III, 571, 697).

2. Things to which a great danger of abuse is attached, such as poisons, it is not lawful to sell unless there is sufficient certainty about a right intention (St. Alphonsus, II, 72).

3. Things which can serve almost only for sin - such as instruments destined for preventing conception, obscene images - are to be judged thus with respect to making and selling: owners of factories and shops, as was said about owners of bad bookstores, not only most gravely harm public decency and the common good, but also proceed with the intention that others buy and, having bought, use them up; and for this reason they are guilty of formal cooperation (n. 558). But concerning lower ministers, what we said about lower ministers of bad bookstores in the cited number must be said.

4. With respect to the advertising and display of bad things, apply what was said about the publication (n. 558) and display (n. cited) of bad writings.

III. Object. Besides what was said in n. 832 and following about objects unfit for contracts in general, these things are specially to be noted:

1. The sale of another's thing, with natural law considered, is invalid; for no one enjoys the faculty of disposing in any way of the thing of another. But the seller, if he has acted in bad faith, is bound to render the owner and the buyer unharmed; if in good faith, he ought to refund the price to the buyer. The buyer, if he has proceeded in bad faith, is bound to restore his own thing to the owner and to reimburse him for other damages perhaps following; if in good faith, he is per se bound to restore the thing to the owner, but, if otherwise he cannot recover from the seller the price paid, he can return the thing bought (n. 983).

Nevertheless, let it be seen what civil law establishes, which one who has proceeded in good faith may licitly follow and urge.

2. The sale of a determinate thing already sold to a third party, with natural law considered:

a) Is invalid if the sale, with civil law considered, confers a right in the thing, as obtains, for example, in France. The reason is that there is had the sale of another's thing.

b) If the sale, with civil law considered, confers only a right to the thing, and delivery, by which a right in the thing is conferred, has not followed, it is likewise invalid, because the seller cannot grant to a third party the right which he has already granted to the former buyer. Nevertheless the delivery of the thing, although injurious to the former buyer, seems valid, because the seller, since he is still owner of the thing, is able to grant its ownership or right in the thing to the third party. But in the case he is per se bound to take care that the former buyer obtain the thing, and in addition, if he has proceeded in bad faith, to reimburse the former buyer for damages perhaps following from the injury.

What the law is, with civil law attended to, see in the Civil Code.

c) The sale of a thing which at the time of sale has totally perished is manifestly invalid. If the thing has perished only in part, with natural law considered, it must be resolved according to what is to be said in n. 898.

d) Finally, a thing bought with another's money belongs to the buyer; who nevertheless, as is clear, ought to return the money to the owner.

VII. Obligations of the seller. 1. The seller, as regards defects of the thing to be sold, is bound to manifest:

a) Substantial defects, and the defect of a quality to which he perceives the buyer's consent to be bound. For otherwise the contract, because the buyer's consent to the object of the present contract is lacking, is invalid, and therefore the seller cannot accept the agreed price (n. 837; St. Alphonsus, III, 819; cf. St. Thomas, II-II, q. 77, a. 3).

b) A notable and hidden defect. The reason is that a thing is sought by the buyer which lacks a notable defect; this being posited, the seller, by furnishing the thing and not disclosing the defect, tacitly affirms that it lacks such a defect, unless that defect itself is manifest; and therefore he uses deceit and inflicts injury on the buyer. Hence authors generally add that even a notable and manifest defect must be disclosed if it is noticed that the buyer is laboring under invincible ignorance (St. Alphonsus, III, 823). Besides, there must be manifested:

c) A defect about which he is specially questioned, unless the buyer can discover the defect by his own inquiry. The reason is that otherwise buyers would lack a means of inquiring what sort of thing it is concerning which they are going to contract; and this cannot be admitted.

d) Outside the cases assigned there is no obligation of manifesting defects, not even hidden ones; both because otherwise trading would become almost impossible, and because universal custom confirms this.

Corollary I. If some defect can bring damage to the buyer and is not noticed by him, the seller must always - even in a case in which, according to what has been said, he is not held from justice - warn the buyer; as if a horse is furious, or a house ruinous.

Corollary II. The seller, even if he is not bound to manifest a defect, ought nevertheless to take account of the existing defect in establishing the price; if he has not done so, he is bound to restore part of the price received.

Corollary III. A seller who has not manifested defects that had to be manifested is bound, if the contract nevertheless was valid, to restore the excess of price and to reimburse other damages perhaps following from the silence; indeed, if the buyer's error gave cause to the contract, he is bound also to rescind the contract at the buyer's judgment (St. Alphonsus, III, 823).

Corollary IV. "If the seller," says St. Alphonsus with others, "protests that he does not wish to give an account of any defect whatever, but to sell as is commonly said: A sacco d'ossa rotte; then he is bound to nothing. Hence Tamburini deservedly approves the custom which flourishes in some places, especially in great fairs, that animals are sold in this way, even if the defects are most hidden. The reason is that, for removing lawsuits on account of the common good, this can be sufficiently rendered honorable by custom: provided it is understood that the thing is not sold beyond the just price, at least the highest," which the thing has when account is taken of that hidden defect (St. Alphonsus, III, 823). Apply the same to sales by an antiquarian.

Question 1. Whether it is licit to sell a "something for something else," as is said, provided that what is handed over is equivalent to the natural thing, for example to wine, butter, vinegar.

Response. It seems licit, because there is not present a substantial diversity as regards "the end of the buyer" (St. Alphonsus, III, 821). Except: 1° if the buyer manifestly wants the natural thing or a thing of a determinate species; 2° if merchants are held by custom to declare the imitation.

Question 2. Whether it is licit to sell merchandise mixed with cheaper merchandise, provided the just price is retained.

Response. Per se it is illicit. By accident it is licit: 1° if the seller's merchandise is better than usual; 2° if custom so bears. Except if the buyer offers a price greater than usual for this end, that he may certainly receive merchandise not adulterated.

2. The seller is bound to deliver the thing sold to the buyer, who, according to the diversity of civil law, by delivery acquires either a right in the thing and possession, or possession alone. In what way the thing must be delivered is established by civil law; what things must be observed by him or by the buyer as regards the place of delivery, expenses, etc., should be gathered from civil law and from the special stipulations of the contracting parties.

3. The seller is bound to furnish eviction, that is, he is bound to render the buyer unharmed if the thing bought is reclaimed totally or partially by a third party who proves himself to be owner. Hence he is bound to return the price perhaps received.

But what if a seller who proceeded in good faith no longer possesses the price either in itself or in an equivalent?

Response. Most judge that the seller is nevertheless obliged, namely by reason of the contract, whose nature carries this obligation with it. But with St. Alphonsus (III, 800) it seems that it must altogether be denied, because the seller is bound to nothing by reason of the contract, since it is invalid and destitute of all value (n. 894).

Two Kinds of Injustices in Sales.—Equality between the buyer and the seller requires that each give the other a good equivalent for what he receives. Hence, the injustices committed in sales are reducible to two kinds: (a) injustices in the prices charged or paid; (b) injustices as to the goods furnished or taken.

Injustice Regarding the Price.—Sin is committed in reference to the price charged as follows:

(a) by fraud, when one of the parties uses deception against the other party in order to charge more or pay less than is fair; for one who is party to a contract has the right that no lying or trickery be used against him, a contract being an agreement to which knowledge and consent are requisite;

(b) by overcharge or underpayment; for sale has for its purpose the mutual advantage of the buyer and seller, and hence one of them should not be overburdened for the advantage of the other, but the burdens and benefits should be equally distributed. Hence, it is unjust to sell an object for more than it is worth, or to buy it for less than it is worth.

The Criteria of a Just Price.—(a) The constitutive norm of a just price is not merely subjective, that is, the fairness does not depend on the arbitrary wishes or on the special needs of the contractants, or on some monopoly which controls the prices; it is objective, that is, founded on the value of the thing sold, its capacity to be of benefit and satisfaction to its possessor, its rarity, the amount of labor put into its production and care, etc.

(b) The manifestative norm for commodities that are in common use (such as the necessities of life and the more usual luxuries) is the common judgment expressed either in law (legal price) or in the free custom of buyers and sellers at a particular place and time (market price); for objects that are not in common use and that have no settled price (e.g., rare archeological finds, ancient documents or paintings) the norm is the prudent and free judgment of the parties, or the decision of an expert chosen by them.

The Obligation of Observing Prices Settled by Law Or Custom.—(a) The legal price (e.g., in some countries the prices on government monopolies, such as tobacco and salt), which in modern times is rare, is ordinarily obligatory in virtue of commutative justice, since its disregard harms one of the parties to the sale. But in exceptional cases the price may for reasons of equity be no longer obligatory (e.g., when the lawgiver does not insist on its observance).

(b) The market price is ordinarily of like obligation, and for the same reason. But it should be noted that the current price allows of some latitude, since the common estimate does not agree on exactly the same figure, and hence there is a highest, a lowest, and an average price. Injustice is done when one sells above the highest market price, that is, when one charges a sum notably in excess of that charged by others at the same place and time; or when one buys below the lowest market price, that is, when one pays a sum notably less than that paid by other buyers. St. Alphonsus gives as a rule that when a commodity is valued at 5, it may be sold for 6 or bought for 4; when valued at 10, it may be transferred or acquired for 12 or 8; when valued at 100, it may be exchanged for 105 or 95.

When the Market Price May Be Disregarded Without Injustice.—In some exceptional cases one may disregard the market price without injustice, if there are reasons that justify this.

(a) Reasons that rest on the matter of the contract are that the thing on sale has increased or decreased in value (e.g., the merchandise is of extraordinary excellence or rarity), or that the contractant would lose or risk loss from the sale itself by keeping to the market price (e.g., the buyer would by his purchase deprive himself of money that could be used more profitably in another transaction; the article if sold would have to be replaced by the seller at a higher price; the vendor by waiting can make a better sale later; the object which a person wishes to purchase is especially prized by the owner and cannot be duplicated). In these cases, however, the vendor should give notice to the buyer that for special reasons a higher price is being asked, so that the latter may have the choice of going elsewhere, if he prefers.

(b) Reasons that rest on the manner of the contract are that certain exceptional forms of sales are justified by law or custom and do not violate basic justice. Auction sales are of this kind, and, if the conditions of aleatory contracts are observed so that the risk will be equal on both sides, it is not unfair to take a price above the highest current price or to bid and buy below the minimum price.

If the reason for the increase is the accommodation of the sale itself to the purchaser, because he specially prizes the article, does it justify an increase above the market price?

(a) If the article has become of greater value to many because of its own worth, the market value has also risen, and one may raise one’s price; but if its greater value to many is due only to public distress, as in time of war, it would be a cruel form of injustice known as profiteering to raise the price exorbitantly.

(b) If the article has become of greater value to one person only, the seller may not raise his price for that reason, since the special worth the article has is not inherent in it, and hence it may not be sold by the owner as if it were his own possession. If, however, the purchaser wished to add something as a free gift, there would be no objection to his doing so. The same principles apply to the purchase of an article at less than its value, for the sole reason that ready money has special value for the seller.

Unjust Sales Based on Ignorance of Real Value.—There are also cases in which an object is purchased at an unjust price because its true value was unknown to the contractants or was hidden.

(a) If the value was unknown on account of substantial error (e.g., a woman buys paste ornaments, thinking they are genuine diamonds), the contract is invalid; if it was unknown on account of the individual error of a contractant (e.g., a woman buys a diamond of great value for a few dollars, because the seller did not know the value of the jewel), the contract is unjust; if it was unknown on account of public error reflected in the current price (e.g., an art dealer buys at a low price a masterly painting, because his superior judgment enables him to recognize in it qualities which others did not perceive), the contract is both valid and just. It is also lawful to buy at the present prices when one knows from sources that one can honorably use that the objects purchased will soon rise greatly in value, for one is not bound to share with others one’s personal knowledge.

(b) If the hidden value is no man’s property or is abandoned (e.g., a man buys a field in which he, but not the owner, knows that a treasure is concealed, or he buys a goose and finds gold pieces in its stomach and cannot discover how they got there), the buyer is entitled to acquisition; but if it has an owner who can be discovered (e.g., a man buys a coat in a second-hand store and discovers a large quantity of money in bills sewed inside the lining, and is able to trace back the coat to its former wearer, if he tries), the buyer is bound to restitution.

Obligation of Restitution on Account of Unjust Prices.—(a) Unjust Possession.—If there was bad faith without fraud, the seller should restore the difference between what he received and the highest current price, the buyer the difference between what he paid and the lowest current price. Overcharges or underpayments in conventional prices should be compensated for according to a reasonable standard, such as the decision of the experts.

(b) Unjust Damage.—If there was bad faith and fraud with resultant damages to one of the parties, the losses should be made good, even though the just price itself was not violated by excess or defect (see 1762).

(c) Nullity.—If there was good faith on both sides, there is no obligation of restoration, unless we suppose substantial error, lack of proper consent, conditional agreement, etc., which make the sale null or rescindable (see 1725).

Injustice Regarding the Thing Sold.—Having spoken of the injustices committed in reference to the price, we shall now treat of the injustices committed in reference to the thing sold. The contract supposes that the thing sold be of a certain character, and hence injustice is done if one of the parties wilfully misleads the other about that character.

(a) Thus, the species of the thing sold enters into the contract, and so it is unjust to deceive another person about the nature of the thing that is being sold (e.g., if the seller gives inferior substitutes or adulterated goods to those who desire the genuine and pure article, or if the buyer deceives an inexperienced merchant into thinking that the high-grade clothing material he has for sale is low grade).

(b) The quantity of the thing sold is also a part of the contract, and it is unjust to take advantage by giving less or taking more than is agreed on: “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” (Deut., xxv. 13, 14).

(c) The quality of the thing sold belongs to the contract, and hence there is fraud if one of the parties deceives the other about it (e.g., if the horse sold is sickly or slow, when he is supposed to be healthy and speedy).

Defects in the Thing Sold.—If there are defects in an article sold, but a fair reduction in the price is made on account of the imperfection of the article, there is no injustice in the price. But the seller is unjust, nevertheless, if he conceals the defects in spite of a contrary condition in the contract, for he injures the buyer by leading him into an agreement against his will.

(a) There is an indicated condition when the buyer inquires whether there are defects in the article, having the intention to take nothing that has any considerable defect. In such a case if the seller conceals even an accidental defect (i.e., one that makes the article less suitable for the buyer), the contract is null on account of lack of consent, or at least, as others think, it is rescindable on account of the fraud practised. But if a defect is inconsiderable, the contract, unless it is expressly stipulated to the contrary, is good and lawful, for there is hardly anything that has not some small defects.

(b) There is an implied condition when the buyer makes no inquiry, but there is a substantial defect (i.e., one that makes the article dangerous or unsuitable for the purchaser), and this defect is hidden, either because it is of a kind that would escape most persons, or because the purchaser is inexperienced or unable to perceive it for himself. Since every person who buys intends to get something useful, there is no consent and the contract is invalid, if one is given something harmful (e.g., corrupted or poisonous food instead of good food), or something entirely useless to him either for service or for sale (e.g., a lame horse instead of a sound horse for one who deals in race-horses).

Circumstances in Which Defects Need Not Be Revealed.—Fairness of price being supposed, the seller is not unjust in not calling attention to defects in the thing he sells, if the buyer does not ask about defects and there is no implied condition that the seller should volunteer the information. This happens as follows:

(a) if the defect is hidden, but only accidental, there is no condition that the seller shall point out the defect, for the understanding is only that the buyer shall receive something serviceable at a fair return for his money, Nevertheless, most merchants wish to please the public and will take back or exchange an article that is not satisfactory;

(b) if the defect is open, but accidental, there is no condition that the seller shall instruct the buyer about things that the latter can and should observe for himself; for it is supposed that the buyer will exercise ordinary care and prudence in making purchases, nor is the seller paid for supplying this, nor for assisting the buyer to make good bargains. Thus, if a man were to buy a one-eyed horse, because he had not examined the horse, he should blame his own negligence, not the silence of the seller, for his bad bargain.

Note: From the resolution of this question, the resolution of other questions is clear: whether it is licit to accept, offer, give, sell, or do something which another does not give, accept, receive, buy, or use without sin. In all these, scandal is by way of cooperation. Cf. 440.

What is simony and what is its malice? - Simony is the studious will of buying or selling for a temporal price something spiritual or annexed to the spiritual. Studious, not only because, like any other sin, it requires deliberation, but also because for its essential malice it is not required that the pact be actually completed by mutual consent; rather, the interior will, even of one person, to make a bargain or to oblige another is sufficient. Acts 8:18 seqq.

Spiritual, here, is understood as everything which of itself or by the institution of God or of the Church pertains to the salvation of the soul, and therefore to the order of spiritual goods, namely supernatural goods; wherefore natural things, although spiritual, do not belong here. Hence civil or natural honorableness is outside simony, but not sanctification of the soul, and God's offense and glory. Moreover some things are spiritual in themselves and formally, for example, the gifts of the Holy Spirit and sanctifying grace; others causally, namely insofar as they are the cause of spiritual gifts, for example, sacraments and sacramentals; others finally effectively, which proceed from a spiritual cause, such as dispensation in vows, absolution from censures, etc.

Something can be annexed to the spiritual in three ways: antecedently, to which the spiritual accedes, as that which is ordered to the spiritual, such as sacred vessels, which are ordered to the use of the sacraments; consequently, to which the spiritual is presupposed and which depends upon the spiritual, such as the right to revenues of benefices, which is had on account of a spiritual office; concomitantly, either intrinsically, if in reality it is not separable, as labor in the administration of sacraments, or extrinsically, if it is separable, as singing in the celebration of Mass. Whether the labor is intrinsic or extrinsic, it is always something temporal in itself.

Now, per se, it is licit to sell a temporal thing which is antecedently annexed to the spiritual, such as the silver of a chalice; for that thing always retains its intrinsic value, independent from the spiritual thing, C. Hoc eius 2, sec. 1, c. 10, q. 2, yet with no account of the consecration being taken in the price. But if a chalice or sacred vestment is sold for profane uses, they must first be broken or unstitched, so that they lose consecration, Authent. Praeterea, C. de SS. Ecclesiis, the material thing remaining with its own value. Since this cannot be done in temples - for thus only a heap of stones would be sold - hence several deny that temples can be sold. Benedict XIV, Quaest. Can., q. 142. But if a church has been profaned, has ceased to be a church, and Apostolic approval is present, it too can be sold for profane uses. Pallottini, v. Ecclesia in genere, sec. II, nn. 48, 51, 55. It is said per se, for it can happen that a sale of this sort is prohibited by ecclesiastical law. And thus by ecclesiastical law the sale of a church is prohibited, C. Querelam 15, de Simonia; of the goods of a benefice; of chrism; of blessed oil; of a cemetery.

Likewise, for something annexed concomitantly extrinsically, it is permitted to receive a stipend, for example, for a journey in celebration of Mass, at a certain hour, in a certain place, etc. Those things which are annexed to the spiritual concomitantly intrinsically can likewise be sold per se. For indeed intrinsic labor, insofar as it is labor, differs in nothing from extrinsic. Besides, in a sung Mass, in the celebration of Mass at the first hour after noon, are not the singing and the hour most truly intrinsic to the Mass? And yet a richer stipend is received on account of the singing, on account of the first hour. And if something can be required by reason of deprivation of liberty for carrying out other works and receiving emolument from them, as the adversaries themselves confess, then that can be required by reason of that labor from which that deprivation comes. For only by reason of such labor in favor of another can that deprivation give title to requiring the owed stipend from him. Therefore to receive something on account of labor, whether intrinsic or extrinsic, as wages of work, not as the price of a spiritual thing, is not simony per se. And thus in the celebration of Masses a stipend is received; in the preaching of the word of God an honorarium is also received. "Likewise some temporal things are given to those praising God in the celebration of the ecclesiastical office, whether for the living or for the dead, not as a price, but as a stipend of sustenance." S. Th. 2. 2, q. 100, a. 3 ad 2; Trent, sess. 21, c. 3 de R. "Stipends are owed to work and labor." S. Th., Quodl. 7, a. 18. "Sustenance is owed from one's own labor." S. Th., Quodl. 7, a. 18. But since this stipend is ordered to the necessary support of the ministers themselves, and therefore is in fact required, it is called a stipend of sustenance or of necessity. Hence it is clear that a stipend is given per se not on account of the work, but on account of the work performed, on account of labor merely according to the very notion of labor furnished in favor of another, in order to the one working, by whose necessary sustenance it is measured; not on account of labor in order to the work as spiritual, and to the spiritual utility of the neighbor from it, which would be simony. And therefore it is a stipend, not a price, because it is not the price of the work, but the stipend of the work performed or of labor. Indeed the worker, by reason of his work, is worthy of his wage. This wage indeed is not measured properly and per se by the thing or labor, but by the condition of the one laboring. Price, on the contrary, is properly and per se measured by the thing. And therefore the stipend accepted is called the stipend of sustenance, insofar as from that labor the priest has a title of sustenance. 1 Cor. 9:13, 14.

It is also clear that nothing consequently can be accepted by way of a stipend ordered to sustenance, by reason of sacred ministry performed for the utility of another, considering in it also not the specific and spiritual utility of that labor, but only the generic notion of a work furnished in favor of another, if, for example, the priest is a pastor or beneficiary who is bound by office to that sacred ministry. For then from the revenues of the benefice he already receives sufficient stipends for his sustenance; and from justice he is bound to exercise that sacred ministry. Per se; for if there intervenes, as indeed often intervenes, a prohibition of the Church, then simony is committed. Indeed on the occasion of ministering Confirmation, nothing is accustomed to be given. The Eucharist also is to be ministered with no gift accepted on that occasion. On the occasion of ministering Penance, nothing is to be accepted. Roman Ritual, de Sacr. poenit. Likewise nothing is accepted for administration of extreme unction. And Orders are to be conferred altogether gratis from the Council of Trent, sess. 21, c. 1. In addition, Innocent III forbade clerics to accept anything at all for the sake of burying the dead. C. 13, de Sepult.; C. 9, 41, de Simon. Yet in the present time, on the occasion of burying the dead, money is generally paid to pastors and church attendants. But pastors are bound to bury the bodies of the poor gratis. S. Congr., 5 May 1617.

Finally, those things which follow upon a spiritual thing cannot be sold while this connection remains; for that which is annexed consequently to some thing supposes the thing itself, and behaves as its accessory. Therefore if the principal cannot be sold, neither can what necessarily follows from it. C. Si quis obiecerit, c. 1, q. 3. Hence it is simony to sell the right of living from the goods of a monastery, since this is annexed consequently to profession, which is spiritual. While this connection remains; for by the authority of the Supreme Pontiff separation can be made. "Temporal things themselves indeed may be sold; but their order to spiritual things ought not fall under sale." S. Th. 2. 2, q. 100, a. 4 ad 1. And thus a dowry is required from nuns for their sustenance.

For a temporal price, that is, for a thing estimable by price, or which bears before itself temporal advantage, although perhaps it cannot be estimated by price or money; whether it is a gift from the hand, that is, money itself, or any other temporal good equivalent to it; or a gift from the tongue, that is, favor, or an office to be furnished by voice or writing, such as praise, blame, patronage; or a gift from service, namely a temporal office by some deed, such as service. There will be simony on account of a gift from the hand if you give someone a benefice with a pact that he remit a debt to you or to another. There will be simony on account of a gift from the tongue if a Bishop confers a benefice on someone so that by him he may be adorned with praises, affected with favors, or so that he may not incur his hatred. Finally there will be simony on account of a gift from service if a Prelate confers a benefice on a servant or on the son of a servant, so that he may serve him gratis, or so that his duty of serving may thus be compensated. Whence it is not simony to give a spiritual thing for a spiritual thing; for example, I say Mass for you, so that you say so many rosaries for me; to give relics for other relics, a chalice for a ciborium, or with the authority of a legitimate superior to exchange one benefice with another. For things of the same order are well estimated mutually.

Of buying or selling. These words signify any onerous contract, or the will of obliging another by pact to give something spiritual for something temporal, or conversely. Of obliging, so that either an obligation is first had from it, or from it there is had a new onerous obligation of a temporal thing, or from fidelity, whatever that temporal thing may be, although not properly a thing, but some contract to be entered into, for example, a loan. C. 114, caus. 1; S. Th. 2. 2, q. 78, a. 2 ad 4, a. 5; L. 56, 57; Suarez, c. 37.

Therefore the malice of simony is in this, that the spiritual is equated with the temporal. This can have place in two ways, formally and virtually. Formally, when someone directly intends, in place of the temporal and on account of its estimation or on account of price, to receive the spiritual. Virtually, when someone wishes by means of a temporal thing, not as a price but as the proximate and immediate motive of giving, to obtain the spiritual, and no other true and honorable motive intervenes. For in this will is virtually included the intention of exchanging one thing with the other. For then someone confers a temporal thing for a spiritual thing, or conversely, as for an intrinsic and final motive; and thus at least in the mind there is given a virtual pact. Hence simony is had if the one furnishing the spiritual imposes upon the recipient an obligation or condition of furnishing something for the utility of the giver or of another. Simony, on the contrary, is not present if someone freely hands over some temporal thing to another for a benefit already received, or for alluring him so that some spiritual thing may be furnished for him; for example, if a rich man gives alms to a poor man so that he may pray for him. In this sense it is also permitted to promise someone a gift for his spiritual utility, for example if he hears Mass or receives the sacraments, because this is a simple donation, indeed under a condition or under a mode, for the utility of the recipient; but there is no onerous contract. Nor consequently is any obligation imposed upon the other of furnishing a spiritual thing. And thus also a dowry is licitly offered to a girl, if she enters a monastery. C. Sunt nonnulli 114, caus. 1, q. 1; L. 49, 55, 56, 59, 61, 63, 104, 70, 72, 93; S. Th. 2. 2, q. 100, aa. 1, 2, 4, 5; 4 D. 25, q. 3, a. 2; Quodl. 4, a. 23; Quodl. 5, a. 23; Quodl. 6, a. 10; Ithur., Cas. 36; Suarez, de Simon., c. 45; Schmalz., l. 5, t. 3, n. 62 seqq., 82 seqq.; Lessius, l. 2, c. 35; Laymann, l. 4, tr. 10, c. 8, nn. 13, 14, 15, 42; La-Croix, l. 3, p. 1, n. 165; E. M.

Are other works also prohibited? - This precept, insofar as it is negative, prohibits not only all servile works, but also civil works, namely market-trade and public negotiation of merchandise, and three forensic things: namely suit, judgment unto death, and oath. Thus the common opinion of theologians from C. 1, 3, and ult., de Feriis. And St. Pius V, C. Cum primum, 6 Kal. Apr. 1566, § 7, commanded that all on feast days "abstain from every illicit and servile work, that markets not be held, and that profane negotiations and the noise of judgments be quieted." L. 284.

By market-trade is understood the public exercise of commerce, or a market, with noise, as are annual or weekly fairs, etc. Public sales of merchandise are prohibited by reason of scandal; "hence, as usage bears, goods can be sold behind closed doors," Scav., ed. 12, Mediol. 1874, l. 2, nn. 95, 239. But in this matter custom must be observed, both universal and also particular to places; for this can abrogate a human law in whole or in part, and here has already abrogated the law in great part. Hence, on account of generally received custom, fairs established for a certain day are excepted if they fall on a feast day. Benedict XIV so declared, C. Ab eo tempore, 5 Nov. 1745.

Likewise, from received custom, food, drink, shoes, candles, cloth for making clothes, and other things of this sort are licitly sold and bought in public shops. Yet merchants ought to close their shops, so that they may show that they distinguish Sunday from other days; but here also the custom of places and necessity, varied for various places, claims very much for itself. Public auctions are also tolerated in some places after the divine offices have been performed, because on other days there would be fewer attending, etc. Likewise it is tolerated that merchants of things of small moment carry, show, and sell goods from one place to another.

Houses, horses, oxen, and other merchandise are licitly sold and bought, whether present or absent, whether in small or great quantity, even if a notable time is spent in this, provided these things are done between private persons; both because the usage of the God-fearing so bears, and because the Church prohibited only sales in public shops, by reason of scandal. From the custom of the wise, all contracts are licit if they are made without instruments and the authority of a judge. Indeed St. Alphonsus notes that custom bears that they may be celebrated not only privately, but even through instruments, provided they do not require judicial noise, for example, testaments, instruments of betrothals, sales, etc.; "although," the holy Doctor adds, "notaries in some places are accustomed for this to ask general license from the Ordinary, which for the rest is commonly granted." L. 286, 289; Benedict XIV, de Syn., l. 7, c. 3, nn. 2, 3.

When is a contract with a penal clause had? - What is understood by earnest money? R. To the first: A contract with a penal clause is when someone, to firm an obligation, binds himself to something if he does not keep it. C. I. 1209; C. G. 1226; C. H. 1152; Inst. 1. 3. t. 16. § 7. Hence the debtor cannot exempt himself from the obligation by paying the penalty, unless this has been expressly established. C. H. 1153; C. A. 1336. If the principal obligation is invalid, the penalty is invalid, but not conversely. C. I. 1210; C. G. 1227; C. H. 1155. The penalty is owed from the time when he is placed in delay, and indeed from justice if it is sought, for at least culpable non-execution of the principal obligation; but by no means are both the penalty and the principal thing owed at the same time, unless it was established for simple delay. C. I. 1211-1213, 1229, 1230; C. G. 1228-1130; C. H. 1153; C. A. 909-911. Cf. C. B. 339 ff. A conventional penalty is owed before any sentence, since such a penalty involves a pact.

R. To the second: What is given in advance by the contracting parties holds the place of security for compensation of damages, if the agreement is not fulfilled, unless otherwise has been agreed, and is called earnest money, caparra. The party which is not at fault, if it does not wish to urge fulfillment of the agreement, can retain for itself the security accepted from the other; or exact double of that which it gave. C. I. 1217; C. A. 908-910. Cf. C. B. 336 ff.

What about promise from civil law? Promise is admitted in Roman Law, Dig. 1. 50. t. 12; likewise C. A. 861 ff. And it is also admitted in C. B. For in a. 780, a promise of some prestation in a contract is admitted, which must be established in writing; in a. 518, a promise of donation is admitted, which must also be established by a legitimate act; in a. 610, a promise of loan for consumption is had; in a. 656, a promise of salary for negotiation of marriage, which promise nevertheless gives birth to no obligation; however, what was paid on that account cannot be sought back. In a. 657 ff., there is question of public promise of some reward, which induces the obligation of payment. And promise is had several other times in the same Code, especially promise of a prestation to be paid to the bearer, concerning which there is question in a. 693 ff. From C. I. and C. G. nothing special is had concerning promise. From C. G. 893, it is drawn that no civil action is given from a simple promise. From C. I. 710, promise does not seem to be excluded from the various modes by which one's own rights can be transferred to others. The same must be said of C. H. 1089, 1254. But specifically there is question in C. G. 1589, 1590 concerning a promise of sale, and it is not distinguished from sale itself. But cf. here n. 1129. There is also question of it in C. H. 1451, and those contracting have the right to reclaim execution of the contract. In C. I. 53, 54, there is specific question of a reciprocal promise of marriage, which produces no legal obligation. Nevertheless if it was made by public act or private writing, or if publications were made by a civil magistrate, the one promising, who without just motive refuses to execute the promise, is bound to compensate expenses made by the other party in view of the promised marriage.

The same is prescribed in C. H. 43, 44. Likewise there is question in C. I. 1129; C. G. 1120; C. A. 881 concerning promise of the act of a third person; for example, that Titius will give surety for you. A promise of this kind gives a right to obtaining indemnity from him who obligated himself, or promised the ratification of the third party, if that one refuses to fulfill the obligation. Besides, if he promised only that he would take care that the other give or do, if he took care of this in vain, he is bound to nothing further. The same can be drawn from C. H. 1254. Lugo d. 23. n. 114. C. H. 836; C. G. 1326.

Of how many kinds is an heir distinguished, and how is his succession made? Resp. To the 1st: An heir is distinguished as: 1. Legitimate, who succeeds by law ab intestato. 2. Necessary, who cannot be excluded by the testator. 3. Voluntary, who is called as heir from the free will of the testator. - An heir from testament is also distinguished, if he has been designated by testament, and an heir ab intestato, if by law he succeeds to a deceased person who made no testament or an imperfect testament. In the first case there is inheritance, or testamentary succession. In the other there is legitimate inheritance, or succession ab intestato. C. I. 720; C. H. 658, 763, 807; C. A. 531, 532, 538, 764; C. B. 1922, 1923; C. L. 1735. Cf. here 672, 673; L. 945; Inst. 1. 2. t. 19; Gal. 4:7. According to the various Laws, someone can or cannot die partly testate and partly intestate. And thus an heir also can or cannot, according to the various Laws, partly succeed from testament and partly ab intestato. According to C. He. 481, that portion of the goods of which the deceased did not dispose is devolved upon the legitimate heirs.

Resp. To the 2nd: Succession ab intestato is devolved upon blood relatives. C. I. 721, 722. Succession is made by heads and by stocks. It is made by heads when the inheritance is divided into as many virile or equal parts as there are heads, or persons concurring to the inheritance by their own right. It is made by stocks when succession is had by right of representation, by reason of the stock from which the heir has arisen. C. I. 733; C. L. 1980 ff. Representation has this effect, that the representatives hold the place, i.e., the degree and rights of the represented person, C. I. 729, who cannot be an heir, C. I. 734, 735. Hence the representatives have no other right to the inheritance than that which would have pertained to the person whom they represent, and accordingly they take the virile share of their author; and if they are several, they take it divided among themselves by persons, i.e., in equal parts, or it is divided by heads. And this has place also in testamentary successions, unless the testator has disposed otherwise, or it concerns only a personal right. C. I. 728, 890. But if several branches have come forth from the same stock, subdivision is made by stocks in each branch, but by heads among the coheirs of the same branch. C. I. 733. Thus, e.g., Gerontius had three sons, now dead before him: Francis, Dominic, and Ignatius. From Francis was born Lucius, surviving. From Dominic were born Lucidus and Lucida, surviving. From Ignatius were born Aloysius and Stanislaus; from these, now deceased, children survive: Lucia and Lucella of Aloysius, Marius and Marianus of Stanislaus. Gerontius, dying, leaves a patrimony of 108,000 lire. The division of succession is made by the stocks of Francis, Dominic, and Ignatius; i.e., into three parts, and to each falls a quota part of 36,000 lire. The whole quota part of the stock of Francis pertains to Lucius, namely 36,000 lire. The other quota part of the stock of Dominic must be subdivided into two parts and is divided by heads between Lucidus and Lucida; namely, to each fall 18,000 lire. The third quota part of the stock of Ignatius is subdivided again into the stocks of Aloysius and Stanislaus, i.e., into two parts; whence to each stock fall 18,000 lire. Moreover the portion which is owed to the stock of Aloysius is again subdivided into two parts, by heads, between Lucia and Lucella, and to each are owed 9,000 lire. Likewise the portion which is owed to the stock of Stanislaus is also subdivided by heads, between Marius and Marianus, and to each are also owed 9,000 lire. Representation obtains only in the direct descending line to infinity and in any case. But in the transverse line, the sons and descendants of brothers and sisters of the deceased can represent their parents. C. I. 730-732; C. G. 718 ff., 731 ff., 739 ff.; C. A. 726 ff.; C. H. 912 ff., 915 ff., 924 ff. Succession into lines is had if the goods are divided between the paternal and maternal line, and blood relatives from each line are called to receive the inheritance.

What is the nature of sale and purchase? - Purchase is an agreement of price for merchandise; but sale is an agreement of merchandise for price. Purchase and sale, therefore, are two correlatives, and in reality a single contract, constituted by the consent of each contracting party, namely of giving merchandise for a determined price and the price for determined merchandise. Agreement, and accordingly the obligation of giving merchandise for price, and the obligation of giving price for merchandise. Under the name of merchandise are understood all things, both immovable and movable, which are commonly sold among men. But under the name of price is understood how much a thing is worth in coin or money; for when for one saleable thing another saleable thing is given, it is not purchase and sale, but rather exchange. Money therefore is as it were the instrument, measure, and price, instituted by public authority, of all things which come into exchange. But when money is given for money, exchange is had. Of price for merchandise; therefore what is given to a creditor in payment of a debt is not purchase and sale, but giving in payment. But as sale is not understood without merchandise, so purchase is not without price. The merchandise must be certain, and the price likewise must be certain; if the merchandise is uncertain, e.g., I sell you one horse out of a hundred; if the price is uncertain, e.g., I buy for as much as it will be appraised, sale and purchase are not yet understood. - Inst. 1. 9. t. 24. § 1; L. Pacta conventa Dig. de Contrahenda emptione, etc.; C. I. 1447, 1454; C. G. 1582, 1591, 1592; C. B. 433; C. H. 1445, 1446; C. L. 1544; L. 793; St. Thomas 2. 2. q. 77. a. 1. Cf. in this whole contract Troplong della Vendita.

To whom do ownership of the thing, danger, and advantage pertain according to Roman Law? This contract is perfected before delivery of the thing or of the price. Inst. 1. 9. t. 24 init.; L. Sicut Dig. de Rer. permutat. § 2. Nevertheless for it there is required determination of the price; if this is remitted to the buyer himself, the contract is null. L. Quod saepe ff. de contrahenda emptione. Otherwise, if it is remitted to a third party. L. ult. C. e.t. And just as the price, so also the thing must be determined, at least in hope. L. 794. Although this contract is perfected by consent alone, so that no writing is per se required, nevertheless it can be agreed that it not be valid unless a writing has been made. Inst. 1. 3. tt. 23, 24; L. 795.

To the seller and buyer is brought forth a right to the thing, but not a right in the thing, unless delivery has been made, by which ownership is transferred. Inst. l.c. § 3. Indeed although the thing has already been handed over to the buyer, it still remains under the ownership of the seller until either the price has been paid, or satisfaction has been made to the seller in another way, e.g., by pledge, or the seller has trusted the buyer concerning the price. Inst. 1. 2. tit. 1. § 41; L. 795, 796.

It is special in this contract that, although the contract is perfected, before delivery of the thing the seller is still owner of the thing, and nevertheless the danger of the thing, like its advantage and fruits, pertains to the buyer, unless, as regards danger, it perishes by fault of the seller, and unless the sold thing is determined only as to genus, such as so many modii of wheat, or even if it is determined in species, is nevertheless a thing which is still to be measured, or counted, or tasted beforehand; since then the sale is not yet judged perfected. Inst. 1. 3. t. 24. § 3; L. Quod si neque, L. Illud Dig. de Periculo et commodo rei venditae; L. Quod saepe Dig. de Contrahenda emptione; Laymann de Emptione et Vendit. n. 18; L. 797, 798, 838. The buyer transfers the price, or ownership of the money, to the seller; but the seller transfers empty possession of the thing to the buyer.

If the seller was truly owner of the thing, ownership of the thing is transferred to the buyer. If on the contrary the seller was not owner of the thing, then he is bound to furnish eviction to the buyer. L. Ex empto § 2 Dig. de Actionibus empti et venditi; L. Servus § 1 ib. Namely, if the owner of the thing evinces that the thing is his, then the seller of this thing is bound to return the price to the buyer, and as much as it was of interest to him that the thing had not been evicted. L. Si quaestio C. de Evictionibus; L. Evicta re Dig. de Evictionibus, etc.

For this reason, even if another's thing or a stolen thing is sold to an ignorant buyer, the contract is valid, ownership of the price is transferred to the seller, and the buyer acquires the right to eviction, by which the seller is obligated to the buyer. L. Rem alienam, L. Si in emptione Dig. de Contrahenda emptione; L. Ex empto Dig. de Action. empti et venditi; L. 48 Qui vas Dig. de Furt. § ult. Certainly according to Roman Law purchase and sale are perfected by the obligation of paying the price on the part of the buyer and the obligation on the part of the seller of effecting that the buyer acquire ownership of the thing, which can well be done even if the thing is not the seller's, for he will be able to acquire it. But a thing bought with another's money belongs to the buyer if he buys in his own name. L. Si eo C. de Rei vindicatione. Exception: if the money belongs to the church, a minor, or a soldier; because then the thing is acquired for them. L. 799, 800; Lugo Resp. Mor. 1. 6. d. 14.

To whom do ownership of the thing, danger, and advantage pertain according to more recent Law? According to C. I. 1125, 1448, 1450-1452; C. G. 1138, 1583, 1585-1587; C. L. 1549, 1550, 1551, 1575, once an agreement has been made concerning the thing and the price, the contract is perfected, even if the thing has not yet been handed over, nor the price paid, and ownership of the thing, before delivery, is with the buyer. Therefore if the whole thing is bought in gross or by the body, commonly in bulk, for one price, ownership, danger, and advantage of the thing are immediately with the buyer. - But if it concerns things which are sold by weight, number, or measure, or which are usually tasted beforehand, the contract is not judged perfected before the thing has been defined according to weight, number, or measure, or tasted beforehand. The reason is that the thing must be determined. Hence according to the same C. I. 1470; C. G. 1614, from the day of sale all fruits of the thing pertain to the buyer; and C. I. 1480, 1125; C. G. 1624, 1138 say that the danger of a thing not yet delivered pertains to the buyer. "Just as the danger of the thing pertains to the buyer, so its fruits are owed to him, and civil laws opposed on this point have been reproved by Canon Law, as favorable to usurious profit, as the Salmanticenses say." L. H. A. tr. 10. n. 169. - L. 798.

According to C. I. 1454; C. G. 1591, 1592; C. H. 1447, 1449, the price must be determined by the contracting parties. It can be committed to the judgment of a third party. But if he cannot or will not define the price, the contract is null.

The sale of another's thing is null. C. I. 1459; C. G. 1599. This nullity cannot be opposed by the seller. C. I. ib. But the commercial sale of another's thing is valid. It obliges the seller to acquire it and to hand it over to the buyer under penalty of reparation of damage. C. I. Comm. 59. According to C. I. 1314, under penalty of nullity, agreements which transfer ownership of immovables, or of other goods, or of rights capable of mortgage, must be made by public instrument or private writing. Almost the same according to C. L. 1589 ff. According to C. G. 1341, 1583, any sale is perfected by consent alone of the parties without any legal formality. When the sale exceeds the sum of 150 francs, in order that it can be proved in the external forum, an authentic or private writing is required. According to C. H. 1445, 1450, 1452, 1453, 1468, sale is perfected by the agreement itself, before delivery of the thing, without any legal formality. But only a right to the thing is acquired. Loss of the thing is imputed to the seller if he is constituted in delay in handing it over, and if the sale of a fungible thing is made in a body, commonly in bulk, which happens when merchandise is sold for one and a certain price, without account being taken of weight, number, and measure; or if account is indeed taken of weight, number, and measure, but only for the effect of determining the price. But if fungible things are sold for a fixed price in relation to weight, number, and measure, loss is not imputed to the buyer if the thing has not first been weighed, counted, and measured, and unless he is constituted in delay. If things are sold which before they are bought are usually sampled, such as wine, oil, etc., or if they have been bought under this condition, the sale is presumed to have been made under a suspensive condition. The fruits of the sold thing pertain to the buyer from the day of the perfected contract.

According to C. A. 1053, 1054, 1056, 1063, 1064, 1066, 1080, 1081, 1083, 1084, by sale and purchase only a right to the thing is acquired; wherefore the seller preserves ownership of the thing before its delivery. The price must consist in counted money, and cannot be indeterminate or contrary to the laws. Nevertheless it can be remitted to the decision of a third person. Once the thing has been handed over, even with the price not yet paid, ownership of it passes to the buyer. The danger and advantage of the thing pertain to its possessor, as also in exchange, with which sale has common laws where special ones are wanting. In the purchase and sale of a thing for testing, the bought thing does not pass into ownership of the buyer unless the price has been paid; and during the testing of the thing, the buyer is as a borrower, and before the time of testing has elapsed he can withdraw from the purchase. In the purchase and sale of a thing under reservation, unless another buyer within a determined time offers a greater price, if the thing has not been handed over, the efficacy of the contract is delayed until verification of the condition. But if it has been handed over, the contract is perfected, but once the condition has been verified, it is resolved. According to C. B. 433, 446, by sale and purchase only a right to the thing is had; wherefore delivery of the sold thing transfers to the buyer the danger, deterioration, fruits, and burdens of the thing. As regards immovable things, these effects are produced from the inscription of the owner in the land register. Cf. arts. 494, 496.

What force do arrhae add to sale? What force does a promise of sale have? According to Roman Law: If arrhae are added only to a promise of sale, they do not confirm the contract, but each of the contracting parties can withdraw. But in this case, if he who handed over the arrhae to the other withdraws, he simply loses them; if he who received them withdraws, he must restore double, that is, the arrhae received, and in addition a value equal to them. - If they are added to the sale itself, they do not make it conditional, but are an argument of the contracted sale; for they are computed as part of the price, or are given as security of payment; whence neither of the contracting parties, against the will of the other, can withdraw.

In doubt whether they were added to the promise of the contract or to the contract itself, one must stand for the minimum, or they are judged to have been added only to the promise of sale. Inst. 1. 3. t. 24; L. 25 Dig. de Contrahenda emptione; L. Contractus C. de Fide instrumentorum.

According to C. G. 1589, 1590, a promise of selling is equivalent to sale whenever there is reciprocal consent of each party in the thing and the price. But if arrhae are joined to the promise, either contracting party can withdraw from the contract, so that they are lost by him who gave them; but he who received them returns them doubled. Hence it is clear that a promise of sale is not altogether to be confused, even according to C. G., with sale itself; since according to the same Code, by sale ownership of the thing is transferred, but by no means by promise of sale. Wherefore a promise of sale is equivalent to sale, not insofar as it transfers ownership, but insofar as the seller can be compelled, after receiving the price, or conversely the buyer, after receiving the thing, to fulfill it. Gousset 833. According to C. H. 1451, 1454, a promise of sale and purchase gives to the contracting parties the right of claiming fulfillment of the contract. If in the contract of sale and purchase arrhae have been given and accepted, the contract can be rescinded if the buyer is content to lose them, or the seller to restore them doubled. Cf. C. L. 1548. As regards C. I., cf. 993.

Certainly, speaking per se, it is one thing to promise a thing, another to give it. C. B. 336 ff.; Lugo d. 26. n. 10; L. 794.

Whether the purchase of a thing previously sold to another is valid? According to Roman Law:

A thing sold to one person, and not yet handed over to him, is in the ownership of the seller, who therefore can validly sell and hand it over to another. For when delivery has followed, it becomes the second buyer's. The same must be said if, although the thing has been handed over to the buyer, nevertheless the price has not yet been paid by him, or is not yet regarded as paid. For then ownership of the thing has not yet been acquired for the buyer. But although the second purchase is valid, delivery having followed, nevertheless it is not licit. Hence if a thing has been sold to two persons and not yet handed over, it must be handed over to the first buyer. But if it has already been handed over to the second buyer, who has already paid the price, he acquires ownership of the thing, but the first buyer has a right and personal action against the seller as regards interest and damages. L. Qui tibi C. de Heredit. vel actione vendita; L. Si ancillam C. de Action. empti et vend. But if the thing has already been handed over to the second buyer, but the price has not yet been paid, or regarded as paid, the thing must be handed over to the first buyer, since it is still in the ownership of the seller. Although the thing has been handed over to the later buyer, and he has paid the price, if the second buyer was conscious of the prior sale, he can be condemned, at least by natural law, to hand over the thing to the first buyer. But, since the contract is valid, he is not bound to restore it before the sentence of the judge, but is bound only to reparation of the damage; if nevertheless the thing has been mortgaged to the first buyer in security of the contract, since he already has some right in the thing, the thing must be restored to him. L. Si creditor § ult. Dig. de Distract. pignorum. Likewise, if the later buyer has received the thing by lucrative title, e.g., by donation, the first buyer will be able to evince the thing from him. L. Ignoti C. de Revocandis his, quae in fraudem creditorum alienata sunt. And this has place even if the second was ignorant of the fraud. If the first buyer is the Church, or a pious place, or a City, although the thing has then been handed over to another and the price has been paid by him, the thing must be restored to the first buyer; because the Church, or pious place, or City, even without delivery, has already acquired ownership. L. 827; Lugo d. 20, n. 112, 116; Molina d. 369. n. 9; Lessius 1. 2. c. 21. n. 142.

According to C. G. 1138, 1583, 1599, after perfected consent of each party, the sold thing passes into the ownership of the buyer before delivery itself. But the sale of another's thing is null. No one can transfer to another more right than he himself would have. L. 54 Dig. de Reg. Iur. Nevertheless, it gives place to reparation of damage; and if afterward the thing has become the seller's, he is then obligated to fulfill the sale. Hence it follows that the right is always with the first buyer to evince the thing from the second. Nevertheless according to the same C. G. 1141, if the thing which someone has obligated himself to give or hand over to two successive persons is movable, that person who possesses is preferred and obtains ownership, even if his title is later in time, provided nevertheless that he possesses in good faith. The same is held according to C. I. 1448, 1459, 1126, whether it is a movable thing or a title to bearer. Cf. here 1128. According to C. H. 1473, whether the thing is movable or immovable, the first possessor in good faith is preferred. By natural law the first buyer always retains the right to reparation of damage, if he truly suffered it from the second sale. Cf. C. L. 1578 ff.

What are the obligations of the seller and buyer? 1. The seller is bound to hand over at once the thing and its accessories, free from another's possession and from other unusual burdens, not defective, and entire, unless something else has been agreed; and he is bound to furnish eviction for the thing handed over. C. I. 1462, 1471; C. G. 1603, 1625, 1615; C. L. 1568, 1583. The buyer also, unless something else has been established by pact, must hand over the price at once. Likewise, unless something else has been established by agreement, both the thing and the price must be handed over in the place where the contract is made, and in that mode concerning which agreement was made in the contract. The expenses of delivery are owed by the seller. C. I. 1467, 1468, 1482, 1507, 1508; C. G. 1608, 1609, 1626, 1650, 1651; C. H. 1461, 1465, 1474, 1500; C. L. 1546, 1570, 1572. - The contract of sale and purchase is in equality. For purchase and sale was introduced for the common utility of each contracting party, while one needs the thing of the other and conversely; and accordingly it ought not to be more burdensome to one than to the other. If equality between price and merchandise is not preserved, injustice is committed, and in the forum of conscience there is an obligation of restitution, or reparation of damage, grave or light according to the measure of the damage itself. St. Thomas 2. 2. q. 77. a. 1; C. H. 1466-1468; C. Si venditori 7 de Empt. et vendit.; Rogron on a. 1604. When the price has not yet been paid, the seller is not bound to hand over the thing. C. I. 1469; C. G. 1612; C. L. 1574. If the buyer fears trouble in possession of the thing, he can meanwhile suspend payment of the price. C. I. 1510.

2. Moreover the buyer is bound to pay interest for the unpaid price from the day on which he possesses the thing, if the thing is fruitful, although accidentally it has given no fruits from the time of the sale, unless the seller has given delay for paying; because it is not equitable that the buyer have both the thing and the price at the same time. But if the thing is not fruitful, he is not bound to pay interest unless he was in culpable delay, nor unless it was otherwise agreed. C. I. 1509; C. G. 1652; C. H. 1051; C. L. 1573. 3. In addition, the buyer is bound to pay expenses made for carrying away the sold thing, for writings or authentic acts, likewise for expenses necessary for preservation of the thing from the day of sale, unless it has been agreed in another way. C. I. 1455, 1467; C. G. 1593; C. L. 1552. Cf. C. H. 1455, 1465; C. B. 433 ff., 459 ff.

When is sale resolved by reason of the price? - Concerning Roman Law: In the external forum, so that lawsuits not be multiplied too much, an action against the author of damage is not conceded unless one buying more dearly or selling more cheaply has been deceived beyond half of the price. L. 2 de Rescindenda venditione. And this is also valid by Canon Law. L. 805. From the more recent Laws: If a commissory agreement has been expressly made, so that, when the price has not been paid at its time, or the thing not handed over or accepted, or any other attached condition not fulfilled, the thing would become unbought, the sale is resolved by the law itself, or rather the thing is vindicated for its owner. Resolution of sale is the rescission of a valid sale. Vindication, however, is an action into one's own thing, by taking it to oneself. But if such an express pact has not been made, but only a tacit one has been present, it is resolved only by the office of the judge. C. I. 1511, 1165; C. G. 1654; C. H. 1124, 1503. Cf. C. L. 1585. - Commissory: the lex commissoria is an exception added to a contract; if either of the contracting parties acts against it, he incurs the fine concerning which agreement was made. Cf. the whole title de Lege commissoria in the Digest. Nevertheless, the sale of movable things is resolved by the law itself if the buyer does not come on the defined day of delivery; or if the buyer delays in paying; for then it is in the power of the seller, if the thing has not yet been handed over, immediately to withdraw from the purchase, unless delay has been conceded. C. I. 1512; C. H. 1505; C. G. 1657.

But if the thing has already been handed over, the seller will be able to claim or vindicate the thing, unless again delay for paying has been conceded to the buyer. C. I. 1512, 1513; C. G. 1657. But he will be able to vindicate within fifteen days to be computed from delivery, provided the thing is with the buyer, and has neither been changed, nor obligated to an ignorant lessor. C. I. 1512, 1523. Cf. C. A. 1062. - And in the sale of immovables, by full right, the contract is not resolved unless first, after the time for payment of the price has elapsed, an intimation of payment has been made by the seller to the buyer, who is then constituted in delay. C. G. 1656; C. H. 1504. The seller injured beyond half of the just price, according to C. I. and C. A., beyond seven twelfths parts according to C. G., in the sale of an immovable thing, has the right of demanding rescission of the contract, even if he expressly renounced this right in the contract and declared that he donated the excess. C. I. 1529; C. G. 1674. It is otherwise, however, according to C. A. 935. Rescission of sale by reason of lesion belongs to the seller alone, and only in the sale of an immovable thing, in the external forum; but it is in the power of the buyer either to withdraw from the sale or to supply how much more the thing is worth. This rescission ends in two years. C. I. 1529, 1531, 1534, 1536; C. G. 1674, 1676, 1681, 1683. Cf. C. A. 934, 935, 1060. In the forum of conscience, the action of rescission by reason of lesion belongs per se both to the seller and to the buyer, whether it concerns an immovable thing or a movable, whether the thing was bought beyond the highest price or below the lowest. According to C. A. 1060, the action by reason of lesion likewise belongs to each, namely both to seller and buyer. - Once sale has been resolved, together with the thing, its fruits are consequently also to be restored. - C. B. 454, 455; L. 805, 819; L. 2 de Rescind. vendit. C.; C. 3, 6 de Empt. et vendit.; St. Thomas 2. 2. q. 77. a. 1 ad 1; Gousset 839; Troplong on a. 1654. The action of rescission of the sale of immovables because of lesion is prescribed after two years have been completed from the day of sale. And this term runs even against wives, absentees, interdicted persons, minors, representing persons constituted in greater age who sold. And this term also runs likewise and is not suspended as long as the time agreed by the pact of withdrawal runs. C. G. 1676; C. I. 1531. When rescission has been admitted, if the buyer prefers to retain the thing, besides the supplement of the price he must also pay interest of this supplement from the day of the petition of rescission. If he restores the thing and receives the price, he also returns the fruits from the day of petition. But interest on the price is owed to him from the day of petition or from the day of payment, if he did not gather fruits. C. G. 1681, 1682; C. I. 1534, 1535.

When is purchase resolved by reason of the thing? - If a defective thing has been handed over, the buyer can proceed, within the time established by the laws, by redhibitory or estimatory action. To redhibit is to cause the seller to have again what he had had. To estimate is to cause the excess of the price to be restored according to the estimation of the thing, by how much less it ought to have been sold. C. I. 1478, 1501, 1505; C. G. 1644, 1648; C. H. 1486, 1491, 1492; C. L. 1582; C. A. 933; C. B. 462 ff.; L. 819; Rogron on a. 1625. If the thing has not been handed over whole, because a part of it perished, the buyer can either withdraw from the contract or diminish the price proportionately. C. I. 1461; C. G. 1601; C. H. 1460; C. L. 1576, 1577.

But if after delivery the buyer has suffered eviction of a part, it is lawful for him to withdraw from the purchase if that part is of such kind or so great that, had he known, he would not have bought it. C. I. 1492; C. G. 1636; C. H. 1479; C. B. 468 ff. If the purchase is not rescinded, the value of the evicted part is compensated to the buyer according to its estimation at the time of eviction. C. I. 1423; C. G. 1637. Cf. Troplong on this article. If an error has intervened in the measure of an immovable thing, the quantity having been brought into the contract, it is indeed not lawful for the seller to withdraw from the sale; but it is lawful for the buyer if an excess greater than a twentieth part is found, but not if lesser.

If one does not withdraw from the sale, and there is excess or defect as to quantity, the price will have to be increased or diminished according to the measure of the quantity. But an action of this kind ends in a year. C. I. 1473-1479; C. G. 1617-1623; cf. C. H. 1469-1472. According to C. A. 1059, 1060, when it concerns merchandise for which a rate has been established, the buyer can juridically seek compensation for any very small lesion. Outside this case, purchase and sale can be impugned both by the buyer and by the seller only under the title of lesion beyond half.

Whether the seller is bound to manifest defects of the thing? Defects are substantial, or only accidental; hidden, or manifest; moreover either the seller is questioned about them, or not. Hence: In every case the seller is bound to manifest all substantial defects of the thing, both in itself and relatively to the known end of the buyer, or all those things which make the thing another thing, or render it harmful or notably useless; otherwise he is liable for the price and for the damage. Thus according to every Law. A seller who is questioned is bound to manifest all hidden defects, even if they do not render the thing harmful or useless; otherwise he would commit fraud. Consequently, if fraud was the true cause of the purchase, the contract is rescindable. But if the fraud was only incidental, so that the buyer, knowing the defect, would still have bought, but not at so much, the seller must restore only as much as the buyer would have bought it for less; because otherwise almost no sale could be made. But if the seller is not questioned, and the hidden defect does not render the thing useless, he must diminish the price by reason of the defect. The reason is that otherwise the thing would be sold for more than it is worth. The seller is not bound per se to show accidental defects of the thing which are of themselves manifest, provided he diminishes the price in proportion to the defect. The reason is that then no injury is done to the buyer, neither by reason of the price, which is diminished, nor by reason of the defect, which, if the buyer has not seen it, he must impute to himself. Exception, however, unless the buyer is very rude, because with respect to him the defect is judged hidden. Exception also if the seller is specially questioned about such a defect. If the seller protests that he does not wish to give an account of any defect, even the most hidden, he is bound to nothing, provided the thing is not sold beyond the just price, at least the highest, with account taken of that hidden defect. L. 818, 819, 823, 824; St. Thomas 2. 2. q. 77. aa. 2, 3; Quodl. 2. a. 10; C. I. 1481, 1494, 1498 ff.; C. H. 1484 ff.; C. G. 1623, 1638, 1641 ff.; C. B. 439, 442, 459-461, 463, 464, 475, etc.; C. A. 869, 871, 872.

Whether the seller is liable for all damages following from a defect of the sold thing? - He is liable only for foreseen damages; because he could not undertake an obligation as to those things which he did not foresee even in confused fashion.

To what is the seller bound if the thing perishes before or after delivery? He is bound to nothing if the thing perishes before delivery from a fortuitous event. The reason is, according to C. I. 1480, 1226, 1298, 1299, 1504; C. G. 1624, 1138, 1183, 1302, 1647; C. L. 1549, that a thing perishes for its owner, that is, the buyer. So also, unless it has been agreed otherwise, this must be held according to C. H. 1182, 1445, and according to Roman Law, although the seller preserves ownership of the thing until it has been handed over. L. 828. - If the thing perishes before delivery from fault of the seller, he is liable for the price and expenses of the contract, and also for what was of interest to the buyer, because he ought to have guarded the thing as his own, and he is liable for the damage inflicted.

C. I. 1140, 1219, 1224, 1504; C. G. 1137, 1138, 1182, 1302, 1647. - If the thing perishes after delivery from an intrinsic defect which existed at the time of delivery, he is likewise bound to restore to the buyer the accepted price, and to pay the expenses of the contract, if there are any, and likewise to compensate that which was of interest to the buyer. The reason is that he sold a useless thing, or a thing of no value; therefore there was in the buyer an error concerning the substance of the contract; therefore the contract is null by defect of consent and of the matter itself, which was estimable by no price. Moreover he himself was the cause of the buyer's loss. C. I. 1504; C. G. 1647. Cf. C. H. 1460, 1094 ff., 1487, 1488, 1497; C. A. 1061.

When is the seller liable for eviction of the thing? He who handed over a thing to another from an onerous cause, or the author, if that person is deprived of that thing, must furnish eviction to him; for to evince is to take away something by overcoming. Hence the seller is liable for eviction whenever the buyer is juridically disturbed from possession of the bought thing. Exception, unless it was otherwise agreed in the contract. The reason is that the seller then cannot transfer ownership of the thing. - He is also bound to refund the price to the buyer when it is discovered that the sold thing certainly pertains to a third party, here and now claiming it. The reason is the same; for the seller could not transfer ownership of a thing which he himself did not have. But he is not bound to this in conscience before the sentence of the judge, unless it is altogether certain to him that the thing truly belongs to that third party; nor is he bound easily to give faith to others asserting that it is so, since presumption favors him and no sentence of the judge has otherwise intervened. - But when place is made for eviction, the author is bound to defend the defendant at his own expense, and, when the thing has been evicted, to furnish him indemnity. Wherefore he must restore to him what he received from him for the thing, refund to him the expenses of litigation made, and that which is of interest. For eviction must be furnished from a certain tacit contract between giver and receiver. And thus, if the value of the evicted thing has increased, its increased price is owed. C. I.

1481 ff.; C. G. 1626 ff.; C. A. 928 ff.; C. A. 1474 ff.; C. L. 1581; Troplong della Vendita c. 4 on arts. 1626, 1633. In a redhibitory action the buyer is liable for deteriorations; in eviction he is not liable for deteriorations even occurring by his fault after the sale. In a redhibitory action the buyer must restore fruits; in eviction he is not bound to give an account of consumed fruits. In a redhibitory action the buyer is bound to restore improvements and accessions; in eviction the buyer retains for himself everything which increases the thing. Troplong della Vendita cap. 4, a. 1647, num. 572.

Who can sell and buy? All can sell and buy who generally can contract and are not specially prohibited in the Law. C. I. 1456; C. G. 1594; C. H. 1457; C. L. 1559, 1560, 1567. By Canon Law, rectors of churches, beneficiaries, regular men, and all religious women can sell ecclesiastical goods, immovable and precious movable goods, neither licitly nor validly. Lugo Resp. Mor. 1. 4. d. 31; E. M. By Roman Law, judges and their officials are specially prohibited from buying in the place where they exercise jurisdiction, except things necessary for food, clothing, and daily use. Likewise guardians, curators, and persons subject to them cannot buy the goods of those who are under their care or guardianship, under penalty of nullity.

Purchases are also prohibited to all public administrators; just as the same cannot receive donations. L. unic. C. de Contract. iud.; L. Praesides Dig. Si certum petatur; L. Non licet, L. Si in emptione § ult. de Contrah. empt. By the more recent Laws the following are prohibited: Debtors from selling those immovable goods of their own which have begun to be proscribed by creditors, after the transcribed mandate, commonly precetto, for payment, namely insofar as the creditors' interest is concerned. C. I. 2085; C. G. 686. - Those who have made cession in court; indeed alienations made from the day of cessation of payments are invalidated according to C. I. Comm. 709; and those made within the ten preceding days before cessation of payments are null according to C. G. Comm. 446.

Those who administer goods of a Community or of any public Institute; and those who, in an office, ministry, or public duty, provide authority for goods to be sold, or are present for it; guardians, protutors, curators; parents as regards buying the goods of children who are subject to their power; procurators to whom someone has committed something to be sold in his name; all these, under penalty of nullity, are prohibited from buying the aforesaid goods, even under auction. C. I. 1457; C. G. 1596; C. H. 1459; C. L. 1562, 1565.

Those who, because of office, act in court, as magistrates, clerks, advocates, procurators, indeed also notaries, are prohibited from buying back, likewise under penalty of nullity, lawsuits and litigated rights whose cognition pertains to the curia, tribunal, or praetorship of which they are part, or in whose jurisdiction they exercise office. C. I. 1458; C. G. 1597; C. H. 1459; C. L. 1562, 1563. Cf. C. A. 879; C. B. 456 ff. The purchase and sale of immovables is prohibited to minors, wives, and interdicted persons without the formalities prescribed by law. - Purchase and sale is specially forbidden between spouses, except in a few cases, according to C. G. 1595; and according to C. L. 1564, and C. H. 1458, unless they were separated as regards goods. Sometimes the right of preemption can be reserved for someone. C. B. 1094 ff. Then others cannot buy.

What things can be sold? Sacred things cannot be sold. Cf. 508 ff. Things of public right also, such as public roads and a public forum, cannot be sold. Inst. 1. 3. t. 24. § 4. But by the very Natural Law, the sale of those things is prohibited which by their nature can serve only for evil, e.g., defamatory pamphlets, lascivious pictures, etc. Nevertheless, the sale of these things, although prohibited, is not for that reason null; whence the seller is not bound to restitution. Gousset 836. By Roman Law anyone can sell all his own goods, both present and future, even together, even those which are had in hope, such as future fruits of a field. The things of another can also be sold, e.g., by reason of pledge, mortgage, etc. But no one validly buys his own thing, unless the seller has some right in it. L. Suae rei, L. Si in emptione § rei suae Dig. de Contrah. empt.

By the more recent Laws whatever is in commerce, that is, in the patrimony of individuals or of moral bodies, can be sold; for commerce is the reciprocal right of alienating and acquiring; provided that a particular law has not prohibited alienation of some thing. C. G. 1598. Future things also, such as fruits, grains, offspring, can be sold; whether the right to them is sold, and the sale is aleatory, which is at once valid; or the body, or fruits to be born, are sold, and the sale is under condition, which then will be valid when the fruits are born. Nevertheless the succession of a person still living cannot be sold, even with that person consenting.

C. I. 954, 1460; C. G. 1600. Purchase and sale also is prohibited of the goods of minors, wives, absentees, and interdicted persons, when the formalities prescribed by law have not been observed. Gousset on a. 1598. But incorporeal rights can be sold by Positive Law itself, or also transmitted by any other title, such as promissory notes, credits, servitude, usufruct, right to an opened inheritance; delivery of these is made by remitting the promissory notes or other authentic writings. But if litigated rights are sold, it is lawful for the debtor to redeem them from the buyer, with the price expended restored to him with interest. C. I. 1538 ff.; C. G. 1689 ff.; C. B. 433. Finally an inheritance already devolved to an heir can be sold; and for a sale of this kind there are special positive laws to be observed. Already devolved to an heir; for there is no inheritance of a living person. C. B. 2371 ff. Cf. here 1337. - C. I. 426, 427, 430, 433, 435, 2113, 2114; C. G. 538, 2226, 2227; C. L. 1553 ff.; L. 7 de Haered. vel act. vend. Ecclesiastical goods, as has already been said, cannot be sold without Apostolic beneplacitum. E. M.

Whether conventional retraction, or a pact of retro-sale in favor of the seller, is licit, namely so that at a certain time, or whenever he wills, the buyer is bound to resell the thing to the seller? Resp. Affirmatively. And this is established from the law of Lev. 25; L. 7 de Pact. inter empt. et vend. comp. C.; L. 2 ib.; Less. 1. 2. c. 21. n. 113; Lugo d. 184. The reason is that the owner of the thing can dispose of his thing as he himself wishes, provided justice is preserved. Therefore, with due diminution of the price made for the burden imposed on the buyer, a pact of this kind is licit. How great ought such diminution to be?

Some wish a third part of the price; others hold that a fourth part of the price must be deducted; others more truly think that the matter must be defined from the judgment of prudent men, all circumstances having been duly weighed. C. Ad nostram 5 de Empt. et vendit.; L. 812. But the buyer, in redemption of the thing on the part of the prior seller, can demand that a greater price be paid to him than that which he himself paid. "Because by the very fact that the thing is sold with a pact of retro-sale in favor of the seller, it must be sold at a lower price below the just price because of that added burden. But when it is afterward sold to the same seller, it is given without any burden. Therefore it must then be bought at the full just price. Therefore the buyer cannot be compelled afterward to resell at a lower price without injustice."

Hence a buyer who bought a thing at the lowest price can demand the highest price from the prior seller. For one selling his own thing can demand the just price which the thing is then worth. And at least he can demand that the price now be increased as much as it had been diminished in the prior purchase. Lugo ib. n. 192, 199. - But since the buyer meanwhile enjoys that portion of diminished price, and the convenience and fruits of the thing, he can indeed in the pact of retro-sale also demand by pact that the thing cannot be redeemed by the owner at a price lower than that at which he himself had bought the same from him, but he absolutely cannot demand by pact that it be redeemed by the owner only at a greater price.

For absolutely, to preserve justice, it suffices that the owner, redeeming his own thing, pay a just price; and the just price in the case is not always necessarily a greater price. But a pact is licit that the seller can redeem his own thing by restoring the same price which he received. For then it is a certain simple dissolution of the sale from the mutual will of the contracting parties. Moreover, there is no injustice in the buyer receiving only as much from the prior seller as he himself gave to him. For if this price is just, the matter is clear; if it is less than just, it can be sufficiently compensated to the buyer by the convenience and fruits of the thing meanwhile received by him.

C. I. 1515; C. G. 1659; C. H. 1507; C. A. 1068; C. B. 497. Moreover, in order that a pact of retro-sale be licit, it is necessary that the danger of the thing sold not be with the seller, unless the price is increased by a just estimation of the danger. But the thing to be restored by the buyer is understood to be such as it was when accepted by him, without deterioration or new burden. L. 812; C. H. 1519, 1520; C. I. 1528; C. G. 1673; C. A. 1069; E. M. Therefore the buyer, as true owner of the thing, receives all its fruits and exercises all rights inhering in the thing meanwhile, until the seller exercises his right of redeeming the thing. C. G. 1665.

Retro-sale is had as soon as the seller offers the price to his buyer. Nor is it necessary that the price here and now actually be given. As sale is perfected by simple consent, so also retro-sale. Hence the prior sale is immediately dissolved, and the seller can vindicate his own thing from any possessor. Cf. Troplong on a. 1662. But together with the thing, the increase made to it by alluvion must be restored. Likewise the part of a treasure found in a field must be restored. For the former accedes to the thing and follows the thing; the latter likewise by right of the soil is owed to the owner of the thing. But the buyer's ownership, while the condition of retraction is pending, seems to remain suspended. Cf. Troplong on a. 1673, n. 766 seq.

What is mohatra, and is it licit? The contract mohatra is that by which someone buys merchandise at a greater price on credit, with an explicit or implicit pact that the same thing be immediately sold back to the seller at a lower price and for counted money. - Such a contract is altogether illicit.

This is established 1. from proposition 40 condemned by Innocent XI. 2. Because it is disguised usury; for the burden is imposed on the buyer of immediately selling back at a cheap price without any compensation and without any just title which is otherwise found in mutuum. - If nevertheless the thing is sold back without a prior pact, even for less and to the same seller, provided every usurious intention is absent, of itself it will be licit; because then no burden is imposed against natural equity. And, if the excess which is demanded is a suitable profit by reason of mutuum, then no illicit usury is had in it. - L. 813; E. M.

What is sale by auction; is it licit; what is its nature? Sale by auction, or through bidding, is that which is made by a herald, and in which the thing is ascribed to the final bid. Sale by auction is licit, whether it is made with the consent of the owner or against his will, or by public authority; whether it is bought below the lowest price or sold above the highest. The reason is that in the first case there is a conventional price, but in the other "public power approves as just that price which is proved publicly by the concurrence of buyers." L. 808; C. G. 1686. Hence, if buyers concur, the thing becomes more estimable; if they do not concur, it is held cheaper since the thing is offered voluntarily; and it can be sold for as much more, bought for as much less. Consequently, in it there is no place for rescission under title of lesion, nor for redhibition. C. I. 1308, 1506, 1534; C. G. 1649, 1684. But eviction does not cease in it; and, when the thing has been evicted, the price must be restored to the buyer in forced sales, not by the debtor whose thing was sold and to whom it profited by payment, but by his creditor, because it was paid to him without cause. C. I. 1237; C. G. 1377; C. B. 156.

The price which is determined by the concurrence of buyers also has place in the lease of work and labor, e.g., in building a house, in conducting business.

Whether merchants sin against justice, or against charity, who, at the time of harvest or vintage, buy all the wheat or wine of a region at a very low price, so that afterward they may sell it more dearly? It is certain that this is licit if the goods bought are not necessary for the sustenance of life, or for the common condition of the commonwealth, such as precious gems, noble horses, women's adornments, and the like. L. 816. But if the discussion concerns things necessary for the sustenance of life, the negative answer is more probable, as it seems, with respect to justice, provided they do not sell above the highest price which would prevail apart from monopoly. The reason is that they violate no one's right. The negative answer is also more probable with respect to charity, provided they do not induce others to sell more dearly, nor themselves sell above the highest price which would have place apart from monopoly; because they use their own right. For no one is bound to neglect his own advantage in order to avoid another's damage which he is not bound to avert. - L. 816, 833; Lugo 176; Less. 150-152; Molina d. 345, n. 7. - 19.

Whether a broker who sells above, or buys below, the price designated to him, can retain the excess of the price for himself? Resp. Negatively, generally speaking. The reason is that he has no title for retaining anything. For 1. not by reason of the thing, because it is not his, but the owner's. 2. Nor by reason of labor and industry, at least by a strict title of justice owed, because if he has been hired for a stipend, he has a right to nothing else; but if he gives his industry gratuitously, he has already renounced wages. 3. Nor by reason of the price designated; for the designation of the price made by the owner is commonly understood to mean that he is not to sell below that price, but by no means that he is not to sell above it. - Except: 1. If by extraordinary and undue labor, or by wholly special industry or diligence, he has made the thing better. 2. If the owner has expressly or equivalently declared that he requires nothing beyond the determined price; for then the excess can be retained. 3. If the owner knows the broker's manner of acting and ratifies it. L. 825;

C. A. 1086.

How many kinds of census are there? - Census is manifold: 1. Reservative, by which the censualist transfers his own thing to another under a gratuitous or onerous title, e.g., he gives or sells it to another, with an annual pension reserved to himself from that thing. C. I. 1778, 1780; C. G. 530; C. H. 1607. - 2. Consignative, by which the censualist buys the right of receiving a pension from another's thing, whether movable or immovable; or from the person himself who obliges himself to provide an annual pension from his own art, commerce, or office. C. I. 1782; C. G. 1909; C. H. 1606; C. L. 1645. According to C. He. 782, 790, a land charge subjects the actual owner of the land to a payment in favor of the one having the right, for which he is answerable by the land alone. Land charges are not prescribed. Individual payments are prescribed. Hence 3. census is distinguished into real, personal, and mixed, according as it is immediately constituted in some fruitful thing, or in the labor and industry of a person, or in both, insofar as immediately and directly only the person is obliged, though for security some things of the debtor are obliged, yet when these perish, the person remains obliged. Therefore in a real census, the thing is obliged to whomever it may come, and, when the thing perishes, the census perishes, C. H. 1624, 1625; in a personal census the person is obliged, and, when the person's industry perishes, the census perishes, unless the census was constituted independently of any industry whatever, and only in the mere obligation of the person to pay. In a mixed census, when the person's industry perishes, the thing as though mortgaged is obliged, and, when the thing perishes, the person is still obliged. Cf. L. 841, 846, 847. 4.

Temporary, or perpetual, or for life, according as it is constituted for a time, e.g., for 10 years, or in perpetuity, or for the life of a man. C. I. 1779; C. G. 1910; C. A. 1284; C. H. 1802. 5. Redeemable or irredeemable, according as it can or cannot be redeemed through restitution of the capital or price. - C. B. 1105 ff.; 1199 ff.; Lugo d. 27, n. 4; E. M.

To what is a possessor in good faith bound if he has sold to another a thing bought from a thief? In the case of eviction, that is, if the owner vindicated his own thing from the buyer, the seller is bound to render the price to the buyer. The reason is that when eviction intervenes, the contract must be dissolved, and the buyer by that very fact acquires recourse against the seller, since by handing over the thing to the buyer he implicitly obliged himself to repair the damage if perhaps there would be future eviction. - The same, for the same reason, must be said in the case of spontaneous restitution made by the buyer. Of spontaneous restitution: with the exception of the case in which spontaneous restitution made by the buyer would be the cause why the seller afterward cannot recover the price from him who had sold him the thing; for then he is not bound to render the price, because the damage which he inflicted on the buyer by selling another's thing, that buyer in turn inflicted on him by accelerated restitution. C. I. 1497; C. G. 1640. - This same must be held if another's thing has passed into the hands of various possessors under onerous title. For if the last possessor is compelled to render the thing to the owner, both he and the individual buyers have the right of pursuing their own seller, so that they may recover the price paid. The first seller has recourse against the thief from whom he accepted the thing in good faith, judging it to be his own. For a possessor in good faith ought not suffer damage from another's bad faith. L. 601; Gousset 929.

Outside the case of eviction, or, according to some, also of spontaneous restitution on the part of the buyer, the matter is not without difficulty, and is sharply disputed. According to Roman Law, the seller is held to nothing, at least more probably, unless he was made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether invalid. For although by it ownership of the thing is not transferred to the buyer, nevertheless ownership of the price is transferred to the seller. And this man, even if he later discovers that the thing sold is another's, nevertheless is not bound either to warn the owner so that he may be able to recover his own thing, or to indicate to the buyer that the thing is another's. Thus the more common opinion. Lugo d. 17, n. 106; Salm. c. 1, n. 88, etc., against Billuart a. 10 and others, who oblige the seller to render the price to the owner or buyer because, they say, the sale of another's thing is wholly invalid.

According to Italian and French Law, the difficulty grows, because the sale of another's thing is declared invalid. Therefore, they say, if the contract was plainly invalid, the buyer did not transfer ownership of the price to the seller, and therefore the seller has no right to preserve that price. Therefore the price seems to have to be refunded to the owner, if he cannot reclaim his own thing from the buyer. Thus Carrière 1047 with others. Yet others rightly contradict, whose opinion seems sufficiently probable. For it is not plainly established, even according to Italian and French Law, that the sale of another's thing has no effects at all. From C. I. 1459; C. G. 1599; C. H. 1474, these things merely can be deduced: 1. That the owner of the thing preserves his right in it. 2. That the buyer is subject to eviction. 3. That the seller in the case of eviction or restitution on the part of the buyer is obliged to restore the price to the buyer. Nothing beyond these can be deduced from the practice of tribunals. Moreover, what cause is there between the seller and the owner of the thing? What sort of recourse can the latter attribute to himself against the former? Namely, the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because that man does not have the thing. In addition, it would be very harsh that he who neither still has another's thing, nor has been made richer from it, be obliged to undergo so great an inconvenience voluntarily. Therefore to obtain his right, or the reparation of the violated right, the owner has recourse against the actual possessor of the thing indeed, or against the thief, but in no way against the others. Gousset 929; Gury 638; L. 608.

According to C. B. 932, the buyer of another's thing, if he acted in good faith and has possession of it by the delivery of the thing made to him, acquires ownership in the thing bought. According to C. A. 333, only this is had: that a possessor, even in good faith, cannot demand from the owner of the thing the price paid by him for the acquisition of that thing. But these things pertain nothing to the seller. And in a. 1336 it is said that from the general rule no one is bound to repair damage caused without his fault or involuntary action. But art. 931 holds the seller only by the obligation of preserving the buyer unharmed in the case of eviction. If another's thing has perished in the hands of the buyer, the possessor in good faith who first bought it and then sold it is held to nothing. For he is not held by reason of the thing, since he no longer has it; nor by reason of damage, since he is not the cause of its destruction, nor from another source has he cooperated in any way formally in the taking away of the thing. Gury 641; C. A. 329.