A contract of purchase and sale is made as soon as the parties agree on
the price, although the price may not yet have been paid, and even no earnest
given, for what is given under the name of earnest, is merely
proof that a contract of bargain and sale has been concluded. It is
necessary, however, to understand that these rules are only applicable to
purchases and sales which are made without writing; for with reference to them
no innovation has been introduced by Us. With respect to those, however, which
are entered into by writing, We have decreed that a purchase and sale are not
complete, unless a bill of sale has been drawn up, either in the hands of the
contracting parties or in that of someone else, but, at all events, signed by
both of them; but if made by a notary it will not be good unless accepted as
complete and executed by the parties; for if anything is lacking in it, there
is ground for a change of mind, and either the vendor or the purchaser may
withdraw from the contract without incurring any penalty.
Still, We have afforded them an opportunity to withdraw without loss
only where nothing has already been given by way of earnest; for if this has
been done, then whether the sale has been concluded in writing or without it,
he who refuses to carry out the contract, if he is the purchaser, loses what he
has given; and if he is the vendor, he shall be forced to pay double the
amount, although nothing may have been stated with reference to earnest.
(1) Moreover, a price should be fixed, for there can be no sale without
a price; and the price should be certain. If, on the other hand, it should be
agreed upon between certain parties than an article shall be purchased at the
price placed upon it by Titius, it was a matter of great doubt among the
ancient authorities whether a sale of this kind was valid or not; but a
decision which We have made has determined the matter in this way; that
whenever a sale has been agreed upon "for a price such as he shall fix", the
contract shall stand under the the following conditions, namely, that if he who
is mentioned shall establish the price it shall be paid in every instance in
accordance with his estimate, and the property shall be delivered, so that the
sale shall be accomplished; the purchaser being entitled to an action of
purchase and the vendor to an action of sale. But if the party mentioned is
either unwilling or unable to fix the price, then the sale shall be void,
because no price was determined upon; and as this principle has been
established by Us with regard to sales, it is not absurd to extend it to
leasing and hiring.
(2) The price must also consist of money, for whether it could consist
of other things, for instance, whether a slave, a tract of land, or a garment
could be the price of other property was formerly seriously disputed. Sabinus
and Cassius hold that the price can consist of something else, whence it is
commonly stated that a purchase and sale is effected by an exchange of
property, and that this kind of purchase and sale is of very great antiquity;
and they cited the Greek poet Homer in their arguments, who, in a certain part
of his work states that the army of the Achæans obtained wine in exchange
for other things.(1)
Authorities of a different school were of an opposite opinion, and
thought that exchange of property was one thing, and purchase and sale another;
otherwise, when property is exchanged it could not be determined what was sold
and what was paid by way of price; for reason does not tolerate that both
should appear to be sold and paid by way of price. But the opinion of Proculus,
who declared that exchange was a special kind of contract and distinct from
sale, very properly prevailed; as it is supported by other verses of Homer, and
established by more substantial reasons, which former emperors admitted, and is
set forth at greater length in Our Digest.
(3) When, however, the contract of bargain and sale has been perfected
(which we have already stated is done just as soon as the price has been agreed
upon, when the transaction is concluded without writing); the risk of the
property sold immediately attaches to the purchaser, even though the property
has not yet been delivered to him; and, therefore, if a slave dies, or is
injured in any part of his body; or a house is consumed entirely or partially
by fire; or a field has entirely or partly washed away by the force of a river,
or is reduced in size or diminished in value by an inundation, or through trees
being overthrown by a hurricane, the loss falls upon the purchaser, who is
required to pay the price, although he has not yet obtained the property; for
the vendor is secure where anything has happened without fraud or negligence on
his part.
And, also, if the quantity of land be increased by means of alluvion
after the sale, this belongs to the purchaser, for the benefit should belong to
him who incurs the risk. But if a slave who has been sold should abscond or be
stolen in such a way that neither fraud or negligence attaches to the vendor,
it must be ascertained whether the vendor undertook the safe-keeping of said
slave until delivery; for if he did so the risk is certainly his, but if he did
not, he will not be liable; and we understand that this same principle applies
to animals and other property. At all events, however, the vendor must assign
his right of action for recovery to the purchaser; since he who has not yet
delivered the property to the purchaser is still unquestionably the owner. The
same rule also applies to actions for theft and wrongful damage.
(4) A sale may be contracted either under some condition or absolutely;
under a condition as, for example, "If Stichus pleases you before a certain day
he shall be purchased by you for so many aurei".
(5) Anyone who knowingly purchases land which is sacred, religious, or
public, (as, for instance, a forum or a portico), does so to no purpose, even
though, having been deceived by the vendor he buys it as private or profane
property; and he will be entitled to an action of purchase because he could not
obtain it, and may recover indemnity to the amount that it would have been
worth to him not to have been deceived. The same rule applies where a party
buys a freeman as a slave.
FOOTNOTES
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