bound?

What however, it may be asked, is the meaning of the Is he words obligatur, obligatus, tenebatur, in these passages? We are certainly not bound to interpret them as meaning that the pupillus was laid under no obligation whatever, for they are quite reconcileable with the view that, though not suable except 'in quantum locupletior factus est,' he was bound by his promise naturaliter, and that that natural obligation might have all or any of the effects incident to naturalis obligatio in general'. In support of this it may be said that (1) a pupillus who borrowed money without the guardian's authority, although not suable, was nevertheless under a natural obligation to repay it 2: (2) a pupillus who made a promise in the form of stipulation was bound by it naturaliter, for such a promise could be guaranteed by a surety 3: (3) such natural obligation could be released, and could form the subject of a novation 5. It may be replied that these arguments are drawn from the field of unilateral obligations. There is however one clear instance of a pupillus being bound naturaliter by a transaction of quasi-contractual character, and giving rise to obligations binding on both parties. If a pupillus acted without his guardian's authority as a negotiorum gestor, and sued for his out-of-pocket expenses, he could be met by a set-off of the sum due from him in respect of the business to the person on whose behalf he had acted and nothing

:

bound in any sense, was habitually lax in his use of words denoting obligation, or used 'obligatus' to mean 'suable.' No one probably will dispute the proposition that a pupillus to whom a thing was lent (commodata) was bound naturaliter by the ordinary duties which arose from that contract: and yet in Dig. 13. 6. 1. 2 Ulpian himself uses language which, if strictly construed, would entirely negative the possibility of such an obligation.

• Pupillus sane si negotia gesserit, post rescriptum Divi Pii etiam conveniri potest in id quod factus est locupletior: agendo autem compensationem eius quod gessit patitur: Dig. 3. 5. 3. 4.

could be set off which was not owed, at any rate naturaliter. (4) If a thing were sold at a fixed price subject to the condition subsequent that no better offer were made within a certain time (in diem addictio1) a better offer made by a pupillus without his guardian's authorisation, and accepted by the vendor, was sufficient to defeat the first sale:

Sed et si pupillus postea sine tutoris auctoritate pluris emerit consentiente venditore, abibitur a priore emptione2. Now no second offer could have this effect, unless it were more advantageous to the vendor than the original sale:

quidquid enim ad utilitatem venditoris pertinet, pro meliore conditione haberi debet 3 :

and how, under these circumstances, is it conceivable that the pupillus should be under no obligation whatever to the vendor?

4

These considerations recommend the conclusion that in contracts of sale such as we have been examining the other party, if under no disability, is always bound; but that, although he can sue the pupillus so far as his own performance has enriched him, his other rights engendered by the contract are enforceable only in the indirect methods by which natural obligation is enforceable in general.

It may be convenient to briefly summarize three other theories upon the subject advanced by eminent authorities. (1) The contract is primarily void as regards both parties: but its invalidity is remediable by the pupillus' ratifying it, either alone when his disability has terminated, or before with his guardian's sanction. Such ratification must be acquiesced in by the other party, who himself has no similar privilege : it relates back to the moment at which the contract was

2

3

1 See Index, S. v. Dig. 18. 2. 14. 3. Dig. 18. 2. 5. Held by Bechmann, Kauf, ii. §§ 169-172: Vangerow, Pandekten, i. § 279 cf. Ihering, Geist des römischen Rechts, iii. p. 192.

concluded, and the contract must be regarded as though it had bound both parties in every respect from the outset1.

(2) The contract in part is void, for the pupillus acquires rights, but incurs no liabilities under it: he can enforce it against the other party, but it cannot be in any way enforced against him2.

(3) The contract in part is void, for the pupillus is not bound, while the other party is: but the former cannot enforce it against the latter unless he is ready to perform his own side of the bargain 3.

1 Wächter, Pandekten, i. § 84, Beilage ii A. For a slightly modified view see Savigny, System, iii. p. 40.

2 Arndts, Pandekten, § 234.

3 Windscheid, Lehrbuch, § 321, note 22.

The general principle.

CHAPTER III.

WHAT CAN AND CANNOT BE BOUGHT AND SOLD.

The general principle. Sale of Servitudes of res alienae: of res extra commercium: free men: res furtivae. Things whose alienation is forbidden by law, or which have ceased to exist. Purchase of res sua. Sale of free services. Restrictions imposed on right of sale by Testament or Contract. Note A. Sale of res alienae in French and English Law.

THE general principle is stated thus by Paulus:

omnium rerum quamquis habere vel possidere vel persequi potest venditio recte fit: quas vero natura vel gentium ius vel mores civitatis commercio exuerunt, earum nulla venditio est 1.

Putting aside then for the moment those things which from their nature 2 cannot, or which the law says shall not, be the subject matter of a contract of sale, we find that the contract may validly relate to tangible or corporeal things, whether moveable or immoveable 3; to things in

1

Dig. 18. 1. 34. 1. Tout ce qui est dans le commerce peut être vendu, lorsque des lois particulières n'en ont pas prohibé l'aliénation: Code Civil, Art. 1598.

2 Paulus was perhaps referring to 'res naturali iure omnium communes' (Inst. ii. 1. 1 : Dig. 1. 8. 2. pr.), such as air, the sea, running water. But water may under given conditions be bought and sold, and it seems reasonable to say that there is nothing which in itself cannot be bought and sold except where it is to be freely had by all in such quantities that it can possess no exchange value: Si alimenta fuerint legata, dici potest etiam aquam legato inesse, si in ea regione fuerint legata, ubi venumdari aqua solet . . . . . . in ea regione Africæ vel forte Ægypti. . . . . ubi aqua venalis est: Dig. 34. 1. 1 : ib. 14. 3.

3 'Mercis' appellatio ad res mobiles tantum pertinet: Dig. 50. 16.66.

corporeal, such as (1) servitudes or other iura in re aliena, and the release of property from such burdens; and (2) rights of action, and debts due to the vendor from some third person to the mere right of possession: and to aggregates or universities' of things, corporeal and incorporeal. Whether these things belong to the vendor or not, and whether they are actually in existence or not at the time when the contract is made, is as a rule immaterial. As to two of these subjects of sale some explanation may conveniently be given at once: others are reserved for a detailed examination in the next chapter.,

vitudes :

Servitudes can be sold only by the owner of property, Sale of serwho agrees for a consideration to create them in favour of the purchaser that is to say, a man may agree to sell a right of way over his land, or a usufruct over his slaves, and for breach of such an agreement he is suable by actio ex empto. But although a sale of land will ordinarily carry with it the praedial servitudes thereto appurtenant, a man to whom a personal servitude belongs cannot sell it (except by way of release to the owner of the servient property), nor can an existing praedial servitude be sold without the land to which it belongs, because they are by law intransferable apart from it'. But the usufructuary may sell the enjoyment of his usufruct 2, and iura in re aliena which are not servitudes, such as emphyteusis and superficies, being transferable, admit of sale 3.

A contract of sale is in no way invalid because the thing of res alienae, sold does not belong to the vendor, or because he has no right to sell it:

rem alienam distrahere quem posse nulla dubitatio est,

1 But if the owner of a praedial servitude mortgages it to an adjoining proprietor, the latter may apparently, in the event of nonpayment, sell it to another adjoining proprietor: Dig. 20. 1. 12. 2 Dig. 18. 6. 8. 2: 7. 1. 12. 2: ib. 38.

3 Dig. 18. 1. 32.

C