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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 When the consent has been duly expressed on both sides the contract is complete, and it could not be rescinded except by mutual agreement'.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

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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 vendita statim ad emptorem transit. 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.



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.


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.


Locatio Conductio, or letting and hiring, is conductio. 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 opera. (3.) Merces.

1 D. XVIII. 6. 8.
4 D. XVIII. 3. 2.

2 D. XVIII. 6. 1.

5 D. XIX. I. 13. 10.

3 D. XVIII. 2. I.

6 Hein. El. 916.


(1.) Consensus. As soon as the parties had CHAP. agreed upon the subject of the letting and hiring, and the merces to be paid by the conductor to the locator, the contract was complete.

(2.) Res vel Opera. Every thing could be let and hired which was in commercio, provided it was not consumed in the use, or not contrary to law, or contra bonos mores.

(3.) Merces. This must consist of money; for Merces. if the bargain were to give some thing for the specified use, or to do something in return for the thing done, it would immediately become the innominate contract of Facio ut des, or Facio ut facias. The merces, i. e. the rent or wages, must be a fair remuneration1; a nominal sum will not constitute the contract; and it must be fixed either between the parties, or left to arbitration.


As regards the liabilities of the parties, since Liabilities the advantage is for the most part reciprocal, each of parties. is responsible for culpa levis. If the locator let out leaky casks, and the wine of the hirer were lost, he must indemnify the hirer, because it was his duty to see that the casks were sound. If he let a pas

ture for feeding cattle in which noxious herbs grew, fatal to the health or life of the cattle, if he knew this he must make good the loss occasioned to the hirer, if not he loses his rent. The conductor, on the other hand, must use all due care and diligence in the use of the thing hired, or in the work he undertakes to perform3. But the amount of care and diligence on the part of the conductor must depend on the nature of the work to be performed; in the case of a carrier, for instance, where goods of a fragile nature are committed to his care, he is answerable for culpa levissima. And in all cases he is liable unless he use as much care as the nature of the things entrusted to him require. The actions in this contract are locati and conducti. The Actions.

1 D. XIX. 2. 46.

3 D. XIX. 2. 25. 3; D. XIX. 2. 13. 6.

2 D. XIX. 2. 19. I.

4 D. XIX. 2. 25. 7.

BOOK actio locati lies for the letter against the hirer and III. his heredes for the payment of the merces with interest in case of delay, and for the return of the thing let, with damages for any injury occasioned by the culpa levis of the hirer.

The actio conducti lies for the hirer against the letter and his heredes to recover damages for any loss or injury occasioned by the culpa of the letter; as letting him a leaky cask, or a kicking horse; and also for any necessary expenses he may have been put to for the safe keeping of the thing let. Emphyteu- 3. Emphyteusis is a contract by which lands, or houses were given in perpetuity, or for a long time, on condition that the tenant shall improve the lands, and pay a yearly canon, or quit rent, to Definition. the proprietor: Est contractus consensualis de dominio utili prædii alteri in perpetuum, vel ad tempus non modicum, pro certo anno canone in agnitionem dominii præstito, concedendo1.


This first became a recognized contract under Origin of the Emperor Zeno2. Before that period it was not determined whether it was a letting or a sale, as it partook of the nature of both. The term is derived from eupurever, to plant or improve. It having become the practice to let out the ager vectigalis either in perpetuity, or on long leases, by degrees corporate bodies, and private individuals, began to grant long leases of their waste and uncultivated lands, which no one would take for a short period. The owner of the lands was called dominus emphyteuseos, and the tenant emphyteuta, who had the jus in re and the dominium utile, for he not only could take all the fruits of the soil, but he could do anything with the property provided he improved it; besides, he could sell his lease and improvements with the concurrence of the grantor ; the vendee taking his place, and fulfilling all the conditions of the original grant; the dominus em

1 D. VI. 3. I. 1; Hein. El. 933.

2 C. IV. 66. 1.

phyteuseos receiving a fiftieth part of the price at CHAP. each alienation, called laudemium1.



The emphyteuta paid an annuus canon in ac- Laudeknowledgment of the rights of the grantor, and mum. consequently neither usucapion nor prescription could be pleaded by the grantee; for if he neglected


pay the canon for two years in ecclesiastical emphyteutes, or three in civil, he was ousted of his possession.

seos how

The jus emphyteuseos was extinguished: 1. By The jus consolidation, i. e. where the dominus emphyteuseos Emphyteupurchased the lease, or vice versa, where the tenant extin purchased the land. 2. By non-payment of the guished. canon. 3. By alienating without the knowledge of the lord. 4. By permitting the property to fall into a ruinous condition. From this contract of the civil law evidently sprung the long leases of corporations and colleges3.


4. Societas, or partnership, is a contract by Societas. which the goods or labour of two or more are united in a common stock for the sake of sharing the gain. Societas est contractus consensualis, de Definition. re vel operis communicandis, lucri in commune faciendi causa. A partnership is duly constituted by consent, which may be either express or implied; Express or and the capital contributed by the respective partners may be equal or unequal; and may consist of property, or labour, or of both. A partnership is either public or private; universal, called societas omnium bonorum; general, special, perpetual, or temporal. Public, are those of the tax-contractors Public. called publicani. Private, are partnerships confined Private. to private trading operations. Universal, where Universal. the parties embark all their existing and future property. Perpetual, is where the object of the Perpetual. partnership is of a perpetual nature, such as to

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3 Dr Colquhoun's work contains an elaborate treatise on this contract.

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