BOOK III. Literal Exceptio поп пите ratæ pecuniæ. CHAPTER VII. Of Literal Contracts. A LITERAL Contract is thus defined by Heineccius: Est obligatio quo quis, qui chirographo se ex mutuo debere confessus est, idque intra biennium non retractavit, ex his ipsis litteris obligatur et conveniri potest, quamvis pecuniam non acceperit1. We must not confound this with such written memoranda as might be appended to any contract, but it must be such a note in writing as per se involved an obligation upon which the party making it could be sued. The chirographum, therefore, the note of hand, for such it was, to be binding upon the party making it, must contain an obligation upon the face of it, not retracted within two years from the making; and it must admit a liability ex causa mutui. Two years having elapsed, the maker of the note was liable to pay the sum even if he had not received it; or, in other words, it being a note of hand at two years, that time having elapsed without the note being cancelled, he was, according to the form of the note, precluded from offering any defence to an action brought upon it. The creditor could not sue upon the note till the two years were expired; if he did, the exceptio (plea) of non numeratæ pecunia was a sufficient defence. If the debtor had not received the money, he might, before the expiration of two years, bring his querela non numeratæ pecuniæ, or recover his note by the condictio sine causas. The obligation, therefore, arising out of a chirographum, was a payment ex causa mutui, and two 1 Hein. El. 888. 2 C. IV. 30. 7. 3 C. IV. 30. 14. 4. VII. years having elapsed, a condictio lay against the CHAP. maker and his heirs, to enforce payment of the sum mentioned in it. The above describes a literal contract originally Chiroentered into as such; but chirographa were often grapha. not in themselves the contract, but evidence of some one or more preceding contracts which had been by agreement afterwards reduced to that form. Thus, one to whom a hundred aurei were due, ex causa locationis, desiring for his greater security to make it a literal contract, used this form, which was put into writing: "Centum aureos, quos mihi ex causa locationis debes, expensos tibi tuli?" to which the debtor subjoined also in writing, Expensos mihi tulisti," and signed his name: thus the immediate, and original, liability ex locatione was at an end, the debtor admitted that he owed 100 aurei ex causa mutui, and the creditor could sue him upon the note condictione ex chirographo1. This is what was called a novation. Novation. Novatio est prioris debiti in aliam obligationem vel civilem vel naturalem tranfusio atque translatio: hoc est, cum ex precedenti causa ita constituatur ut prior perimatur2. 66 A note in writing was also used for transferring debts from one person to another3. The obligatio ex chirographo was a unilateral contract in which the party bound himself in a certain sum, as we should say, to the holder of the Syngrapha. note. In a syngrapha, where both parties signed, there was a mutual liability, and it was therefore a bilateral contract, producing an action directa and contraria. We may safely infer this, since nomen was used to signify a debt. Justinian disposes of the subject very briefly, and very little is to be gained from the Institutes respecting this contract*. BOOK III. CHAPTER VIII. Of Consensual Contracts. CONSENSUAL Contracts are those in which the consent alone of the parties perfects the contract; Consensual these are five in number: 1. Emptio Venditio. what. 2. Locatio Conductio. 3. Emphyteusis. 4. Societas. 5. Mandatum. All these are contracts bonæ fidei. Contracts, Emptio venditio. 1. Emptio Venditio, or buying and selling, is Definition. a contract by which goods are delivered from one man to another for a certain price. Emptio et venditio est contractus consensualis de re pro certo pretio tradenda'. Three things are requisite in this contract: (1.) Consensus. (2.) Res de qua con sentitur, and (3.) Pretium. The contract is perfect as soon as the price is agreed upon; and may be effected between parties who are absent, by an agent, or by letter3. Consensus. Res. Pretium. (1.) Consent duly expressed is all that is required to perfect the contract, presuming there is neither error, fraud, force nor fear concerned in the transaction. If any condition be annexed to the consent the sale is not complete till the condition be fulfilled1. (2.) Res or merx de qua consentitur. This may be any thing that is in commercio, and capable of being transferred from the seller to the buyer. Res futuræ, as the future crop of a field, or res incertæ, as the jactus retis, buying of a fisherman the next cast of his net. (3.) Pretium must consist of pecunia numerata, and not of another commodity, as that would be VIII. exchange and not sale, and would in fact be only the CHAP. innominate contract of Do ut des. The price must be fair, representing the true value of the thing; and fixed, except where it is agreed to leave it to the decision of a third party. When the consent has been duly expressed on both sides the contract is complete, and it could not be rescinded except by mutual agreement'. Justinian determined that if the buyer refused to fulfil the contract by accepting the thing sold, he should forfeit his arrha or Arrha. earnest which he had given to bind the bargain. If the vendor refused to deliver the thing sold, he must restore the arrha twofold". The vendor is bound not only not to conceal, but to declare any defect existing in the subject of purchase; he is liable for his reticentia if thereby the buyer be deceived: Si quis reticuit et emptorem decepits. The edile by his edict declared that vendors were required certiores facere emptores quid morbi vitiique cuique sit, and palam recte pronunciare, to point out any flaw in the article sold, so that the rule of the civil law is caveat venditor; for if, without being guilty of misrepresentation, he failed to point out existing defects, whereby the purchaser was induced to buy that which he would otherwise have rejected, the actio redhibitoria would Redhibitio. lie against him to rescind the bargain'. If the value of the thing purchased were less than that represented, whereby the buyer paid a higher price than he otherwise would have done, the actio Quanti quanti minoris lies against the vendor for the return minoris. of a portion of the price paid: as where he had puffed off a slave as optimus cocus, a first-rate cook, and he proved a very indifferent one, he could be compelled to return a part of the price paid. The seller is not bound to deliver the thing sold until the price is paid. If any damage occur to purchaser. BOOK the thing sold whilst in the hands of the seller, it III. falls upon the buyer unless the seller have been Liability of guilty of dolus or culpa; for periculum et commovendor and dum rei venditæ statim ad emptorem transit1. The vendor is liable for culpa levis, and even for casus if he take all risks (periculum) upon himself. If the purchase be made subject to tasting, or measuring, as in the case of wine, and before it is tasted it becomes sour, though sound when sold, the loss is to the vendor. Addictio in diem. Pactum rium. Addictio in diem: this was a conditional sale. If no one will give a higher price by a certain day, you shall have it3. Pactum Commissorium was where in the sale commisso the vendor stipulated that if the money were not paid by a certain day the bargain was off. The actions in this contract were directa and contraria. The actio empti lay for the purchaser, who having paid the price could compel the vendor to deliver the thing purchased with all its appurtenances, and any increase which might have attached to it since the sale, such as the young of animals, or fruits of the soil. Locatio conductio. The actio Venditi lies for the vendor, who had delivered the thing sold, against the purchaser and his heredes, for the payment of the price, and for interest from the date when payment ought to have been made; and also for any loss he might incidentally have experienced. 2. Locatio Conductio, or letting and hiring, is a contract by which the use of a thing, or the labour of a person, is granted by one man to another for a certain time, in consideration of a certain Definition. rent. Locatio conductio est contractus consensualis de usu rei ad certum tempus, vel opera pro certa mercede præstandis. Three things are therefore essential to constitute this contract. (1.) Consensus. (2.) Rei usus, vel operæ. (3.) Merces. 2 D. XVIII. 6. 1. 1 D. XVIII. 6. 8. 5 D. XIX. I. 13. 10. 3 D. XVIII. 2. I. 6 Hein. El. 916. |