tum dis A pactum displicentiae is a resolutive condition annexed (ii) Pacto the contract by the purchaser, to the effect that he shall plicentiae. be at liberty to rescind it at his option 1 by returning the goods to the vendor, and not (as in the previous case) by merely expressing himself dissatisfied with them, and to receive back his purchase money, if already paid, or otherwise be discharged from all obligation to pay it 2. If no limit of time were agreed upon within which the purchaser must exercise his option, it was provided by the Ædilician Edict that he must do so within sixty days 3, though the time would be extended if he could prove that he was prevented from availing himself of the condition earlier by Benjamin, p. 593 (cited with approval as a correct statement of the law by Denman, J., in Elphick v. Barnes, 5 C. P. D. p. 326): and where such a time is fixed the buyer is at liberty to change his mind during the whole term, and this right is not affected by his telling the vendor in the interval that the price does not suit him, if he still retains possession of the article (Ellis v. Mortimer, 1 B. & P. N. R. 257). The bargain called 'sale or return' is a sale in which the buyer is entitled to return the goods at his option within a reasonable time: the property passes, and an action for goods sold and delivered will lie, if the goods are not returned to the vendor, within such time: Moss v. Sweet, 16 Q. B. 493: cf. Head v. Tattersall, L. R. 7. Ex. 7. 1 According to Bechmann, Kauf, II. p. 544, only by bringing an action, not by simply returning the goods. This view is based on the connection which existed between the law on this subject and the Edilician Edict (which will be examined in the next chapter): 'der Zusammenhang ist klar: nach diesem Edict kann der Kauf rückgängig gemacht werden auf Grund hervortretender Mängel: es kann aber vertragsmässig die Ruckgängigmachung einfach in das Missfallen des Käufers verstellt werden. 2 Dig. 18. 1. 3: 19. 5. 20: 21. 1. 31. 22. The difference between this case and a resolutive condition proper has been pointed out on p. 80 supr. 3 Si quid ita venierit ut, nisi placuerit, intra praefinitum tempus redhibeatur, ea conventio rata habetur: si autem de tempore nihil convenerit, in factum actio intra sexaginta dies utiles accommodatur emptori ad redhibendum, ultra non: Dig. 21. 1. 31. 22. Bechmann, Kauf, II. § 258, thinks that the time related not to a declaration of dissatisfaction by the purchaser, but to the institution of an action by him to get the sale rescinded. Common terms in servation by vendor : causes beyond his own control, and Ulpian was even of opinion that the rule might be entirely excluded by agreement made at the outset, and the purchaser be allowed to return the goods at any length of time he pleased from the conclusion of the contract1. The principles of the actio redhibitoria were applied to this case by the Ediles, so that (contrary to the usual rule in resolutive conditions) the goods were at the vendor's risk throughout 2. This is perhaps the most convenient place to mention sales; re- briefly certain terms which were sometimes embodied in contracts of sale. (1) The agreement that if the purchaser thought of selling the property, the vendor should have a emption right of pre-emption 3, either on terms arranged when the original contract was made, or on the terms offered by any third person who might be willing to buy it. When created by agreement such right, being in personam, availed only against the first purchaser, and not against any other person to whom notwithstanding the agreement the property might have been sold and delivered: but it might be created also by will, and was in certain cases given by law1. (2) The pactum de agreement that the purchaser should be bound to resell the property to the vendor either in certain contingencies 5 or on demand (pactum de retrovendendo 6). Usually of course the price at which it was to be resold was fixed at the time of the original sale: otherwise, according to some, it was understood to be the price paid to the vendor himself, while according to others it had to be determined by arbitration. Usually, too, a time was limited within which alone the vendor could demand a resale of the property: in the retroven dendo, Dig. loc. cit. 2 Dig. 21. 1. 31. 24: ib. 47. 1 & 48: Vangerow, Pandekten, § 635. 8 Dig. 18. 1.75 19. 1. 21. 5. In both passages the agreement is to sell to no one except the vendor. E. g. in Emphyteusis, Cod. 4. 66. 3. E. g. Dig. 19. 5. 12. 7 E. g. Cod. 4. 54. 7. Cod. 4. 54. 2: ib. 6 & 7. absence of such limitation his right of enforcing the pact was subject to the ordinary limitation of thirty years, though there is no agreement as to the precise time from which such limitation began to run1. On tender of the money within the time allowed, the purchaser was bound to reconvey the property: but if in contravention of the pact he had in the meanwhile sold and delivered it to some third person the vendor had no rights against the latter, but was confined to his action for damages against his own purchaser. Fruits gathered by the latter while the property was vested in himself were his, and had not to be accounted for 2, for the pact did not operate like a resolutive condition 3. retro Occasionally it was agreed that the vendor should be and de under a similar obligation to buy the property back on the emendo. purchaser's requisition (pactum de retro-emendo). 1 See Treitschke, Kaufcontract, pp. 204, 205: Glück, Pandekten, 16. § 998 Pothier, 391. 2 Pothier, 405 sqq. 3 Pothier, 429. This right of repurchase, under the name of Droit de Réméré, seems to have been commonly annexed by agreement to sales of land in France, and is treated at great length by Pothier, 385-444. It also forms the subject of fifteen articles (1659–1673) in the Code Civil: but the authorities on the subject are so scanty that it can hardly have been much used among the Romans. N CHAPTER XII. MODES OF DISCHARGE. Contraria voluntas, or mutual waiver before performance by either party. Partial discharge by subsequent variation of terms. Rescission by the vendor for inadequacy of price (laesio enormis): difficulties of the texts on the subject. When the price is to be deemed inadequate. The courses open to the vendor. Effect of successful action for rescission. Cases in which the vendor may not rescind other doubtful cases. The purchaser's right of rescission on account of undisclosed defects. Historical sketch of the vendor's liability for non-disclosure; the old Civil Law the practice of exacting a covenant as to quality: the Aedilician Edict. Extension of its rules to all sales by juristic construction. What defects render the contract liable to rescission? Distinction between slaves and animals. The defect must exist at the date of the contract, and be unknown to the purchaser. Purchase by agents with knowledge. Defect in accessions: in one of several things purchased together: in part of an universitas. Vendor's duty to disclose defects of these kinds. The purchaser's remedies: (1) by exceptio: (2) by actio redhibitoria. Effects of this action: what must be done by the purchaser, and by the vendor. Covenants sometimes demandable by either party. Points in which the parties are differently treated under the actio redhibitoria. The period of limitation. (3) By actio quanti minoris or aestimatoria: its period of limitation and effects. Reaction of these Ædilician remedies on those of the Civil Law. Cases in which they are inapplicable. Note A. Implied warranty of quality in Scotch and English Law. CERTAIN ways in which a contract of sale could be avoided have already been examined in the preceding chapter, and it will be unnecessary to repeat what has been there said respecting them. With one exception, it is not proposed here to enter upon a discussion of modes of discharge which are common to other contracts, or at any rate to those which along with sale are termed Consensual. The exception is that method of terminating a consensual obli gation known as 'contraria voluntas1': the rest of this chapter will be occupied with an examination of certain grounds upon which either vendor or purchaser was allowed by law to rescind a sale which he had validly contracted. fore per by either be party. So long as nothing has been done in fulfilment of the Contraria voluntas, contract by either party (re integra) it can be discharged or mutual by their agreeing to be off their bargain 2, and this is waiver be merely an application of the principle often cited by formance English judges that an obligation ex contractu can dissolved by a process corresponding to that by which it was incurred 3. Such agreement amounts to a mutual waiver, or undertaking not to sue upon the promise of the other party, which in relation to an obligation of the bonae fidei class did not require to be inserted, in the guise of an exceptio, in the formula of the action: and the equitable character of the contract required that the waiver should be mutual, so that even where one of the parties alone released the other by a formal admission of performance (acceptilatio) it operated as a discharge for both ". The requirement that the res must still be 'integra means that nothing must have been done in performance of the contract. Mere delivery of possession, however, by the vendor does not suffice to prevent a mutual waiver, for the property is still in him, and the waiver will disable the purchaser from setting up the exceptio rei venditae et traditae, and similarly the novation of the contract is no 1 Inst. iii. 29. 4. 2 Abire, discedere ab emptione: Dig. 18. 1. 6. 2: 18. 5. 1: ib. 5. 3 Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est ideo verborum obligatio verbis tollitur, nudi consensus obligatio nudo consensu dissolvitur: Dig. 50. 17. 35: cf. ib. 153. * Adeo autem bonae fidei iudiciis exceptiones postea factae, quae ex eodem sunt contractu, insunt, ut constet in emptione caeterisque bonae fidei iudiciis re nondum secuta posse abiri ab emptione: Dig. 2. 14. 7.6: cf. ib. 27. 2. Dig. 46. 4. 23: cf. ib. 19: Dig. 2. 14. 27. 9: 44. 7. 47. 6 Dig. 2. 14. 52. |