Qui nomen quale fuit vendidit, duntaxat ut sit, non ut exigi etiam aliquid possit, et dolum praestare cogitur 1.

That is to say, if the right assigned does not belong to the vendor at all, the ordinary principles apply which regulate the sale of a res aliena 2, and the fact that the action can be met by a peremptory exception puts it on a par with an action which does not exist at all 3: but in the absence of fraud or express warranty, the vendor is not liable if the person chargeable proves unable to satisfy any judgment which may be recovered. The sale of a debt or right of action is also governed by the ordinary principles as to periculum and commodum rei, which will be fully set forth in a later chapter.

1 Dig. 21. 2. 74. 3. Celui qui vend une créance ou autre droit incorporel doit en garantir l'existence au temps du transport, quoiqu'il soit fait sans garantie. Il ne répond de la solvabilité du débiteur que lorsqu'il s'y est engagé: Code Civil, Arts. 1693, 1694: cf. Demante, Cours analytique de Code Civil, pp. 194-199: Pothier, 559-572. 2 Dig. 18. 4. 8: Code Civil, Art. 1691.

3 Dig. 50. 17. 112.

4 Actiones autem eas non solum arbitrio, sed etiam periculo tuo tibi praestare debebo, ut omne lucrum ac dispendium te sequatur, Dig. 19. 1. 31. pr.

CHAPTER V.

HOW THE CONTRACT IS CONCLUDED.

Necessity of complete agreement between the parties. No forms (such as writing) required for the validity of the contract. Justinian's enactment in Inst. iii. 23. pr. as to writing: it relates to negotiations, not to a sale definitely agreed upon. Contracts made by correspondence, and through

agents. Arra or earnest.

of com

between

ties.

Ir is not necessary to say much of the mode in which Necessity the contract of sale was concluded, for the law left the plete parties to make it as they pleased. All that it required agreement was that they should be agreed upon the thing to be the parbought and the price to be paid, and that each should be aware of that agreement1. In fact, however, they must be agreed not only on the essential points of the bargain (merx and pretium), but on all its subsidiary or ancillary terms as well, in this sense, that if the negotiations have dealt with such terms, and any of them are still unsettled, or have been reserved for further consideration, the

1 Trois choses sont nécessaires pour le Contrat de Vente: une chose qui en soit l'objet, un prix convenu, et le consentement des contractans: Pothier, 3; (la vente) est parfaite entre les parties. . . . dès qu'on est convenu de la chose et du prix, quoique la chose n'ait pas encore livrée ni le prix payé : Code Civil, Art. 1583. 'Written evidence of the consent is required in Scotland to complete the contract of sale of land, of copyright, of ships, and of goods bonded for duties in the warehouse of the importer. But the sale of goods and merchandise in general is effectually proved by evidence prout de iure; parole, written, or confession. When the bargain is made by the principals without writing, the evidence of two witnesses, or one corroborated by circumstances, is necessary: or the letters of the parties, holograph, or signed by them, are good proof': Bell, § 89.

No forms required for the

the con

presumption is that they did not intend as yet to be bound at all:

in venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentiant, sive in pretio, sive in quo alio, emptio imperfecta est 1.

Similarly, if the intention was that the perfection of the contract should depend on the fulfilment of a suspensive condition, there is no obligation until it is fulfilled :

si id quod venierit appareat quid quale quantum sit, sit et pretium, et pure venit, perfecta est emptio: quod si sub conditione res venierit, si quidem defecerit conditio, nulla est emptio 2.

It is certain that until the time of Justinian no form, written or otherwise, was prescribed as the necessary convalidity of dition of either the validity or the enforceability of the tract. contract, whether its subject matter might be moveable or immoveable, corporeal or incorporeal, valuable or worthless. But according to what may perhaps be considered the accepted interpretation of an enactment of that Emperor 3, if the parties agreed, as part of their contract, that it

1

1 Dig. 18. 1. 9. pr. Le contrat de vente peut se faire entre présents, verbalement et sans écrit: il faut néanmoins bien prendre garde, si ce que les parties ont dit exprime une vente ou un simple pourparler de vente, qui n'oblige point, et laisse la liberté de changer de volonté : Pothier, 33.

2 Dig. 18. 6. 8. pr.

3 Sed haec quidem de emptionibus et venditionibus quae sine scriptura consistunt obtinere oportet, nam nihil a nobis in huiusmodi venditionibus innovatum est. In iis autem quae scriptura conficiuntur, non aliter perfectam esse venditionem et emptionem constituimus, nisi et instrumenta emptionis fuerint conscripta, vel manu propria contrahentium, vel ab alio quidem scripta, a contrahentibus autem subscripta, et si per tabelliones fiant, nisi et completiones acceperint, et fuerint a partibus absoluta: donec enim aliquid ex his deest, et poenitentiae locus est, et potest emptor vel venditor sine poena recedere ab emptione: Inst. iii. 23. pr.

an's enact

Inst. iii.

23 pr. as to

should be reduced into writing, it was to bind neither until the condition had been fulfilled, and the writing had been signed by both. It is generally held that it was necessary Justinifor them to agree that its validity should depend on its ment in expression in a written form1, and where that was the case either vendor or purchaser might go back from the agree- writing: ment until it had been signed by both, but if it was the purchaser, he forfeited anything which he might have given by way of earnest: if it was the vendor, he had to give it back, and its value in money as well 2. Where the parties did nothing more than agree that a contract in fact made between them by word of mouth should be put into a written form, the writing was merely evidentiary 3.

to negotia

But although this interpretation of the passage in the it relates Institutes, which assumes the existence of a complete tions, agreement between the parties, is the most simple and

1 The Code Civil enacts that the sale peut être faite par acte authentique ou sous seing privé;' and Demante (Cours analytique de Code Civil, p. 4) says, 'il est certain que, dans ce cas, la perfection de la vente dépend de celle de l'acte, et, par conséquent, de l'emploi de la forme particulière, soit authentique, soit privée, à laquelle la volonté des parties aurait, de fait, assujetti cet acte La vente

....

en pareil cas n'est pas parfaite, le consentement n'est pas donné, les parties peuvent se dédire, en un mot rien n'est fait. Il n'y a pas même un contrat conditionnel: ceci est important à remarquer, car si la rédaction de l'écrit était considérée comme une condition suspensive de la vente, lorsqu'elle serait réalisée elle aurait un effect rétroactif.' It is interesting to find an English case very much in point. In The Governor, Guardians, &c., of the Poor of Kingston-upon-Hull v. Petch (10 Ex. 610, 24 L. J. Ex. 23) the plaintiffs advertised for tenders to supply meat, stating all contractors will have to sign a written contract after acceptance of tender.' The defendant tendered, and received notice of the acceptance of his tender, and then wrote that he declined the contract. It was held that, by the terms of the proposal, the contract was not complete till the terms were put in writing, and signed by the parties, and that the defendant had the right to retract.

2 Cod. 4. 21. 17.

3 See Dig. 22. 4. 4: Treitschke, Kaufcontract, p. 19, note.

obvious, it fails in leaving Justinian's enactment isolated, apparently motiveless, and unconnected with anything, so far as we know, which had preceded it in the history of the law. A comparison with the terms of his constitution in the Code1, which beyond doubt relates to the same point as the text of the smaller work, strongly suggests that he had not in his mind a complete contract to buy and sell, but preliminary negotiations undertaken with a view to such a contract. As early as the time of Diocletian and Maximian we read of 'pacta arralia' in relation to sales, and we hear of them also in connection with other contracts. A pactum arrale is the giving of something by way of earnest by one person to another, between whom there have been pourparlers with a view to some contract, coupled with an agreement that if the contract shall actually be concluded, or shall fail to be concluded only by reason of the fault of the receiver, it shall be returned, either simply or with its value in addition. That such agreements often related to very important transactions is shown by the passage in the Code, which proves that they themselves were sometimes executed in writing 3: for it can hardly be doubted that the passage contemplates not an actual sale, but negotiations preceding a sale which may subsequently be made ('emptio facienda '), and the

1 Illud etiam adicientes, ut et in posterum, si quae arrae super facienda emptione cuiuscunque rei datae sunt sive in scriptis sive sine scriptis, licet non sit specialiter adiectum, quid super isdem arris non procedente contractu fieri oporteat, tamen et qui vendere pollicitus est venditionem recusans in duplum eas reddere cogatur, et qui emere pactus est, ab emptione recedens datis a se arris cadat, repetitione earum deneganda: Cod. 4. 21. 17. 2.

Cod. 4. 49. 3: a. D. 290.

The words 'sive in scriptis sive sine scriptis' clearly belong to 'arrae datae sunt,' not to 'super facienda emptione.'

* The later expressions in the enactment, which seem to imply an actual agreement-vendere recusans-ab emptione recedens-are used loosely, just as we speak of backing out of a bargain to which we have not yet actually committed ourselves.