have agreed as to what is to be paid for each acre, head, barrel, &c., because it admits of practically immediate ascertainment, and neither party can after that moment repudiate the bargain: the sum actually due depends on the number ascertained by counting, weight, or measurement, and a statement made by the vendor as to that number, unless fraudulent, is not taken as a warranty, but rather as a rough and ready estimate for the information of the purchaser1. There is a further difference between the two cases in respect of the moment from which the goods bought are at the purchaser's risk, which will be considered in the next chapter.

must be

real intended be as a bona fide equivalent for the goods.

No transaction will be held a sale in which the price The price agreed upon is not intended by the parties to be a and bona fide equivalent for the thing pretended to purchased 2, or in which it is not intended that it shall be paid at all 3. Such simulated sales are not unfrequently resorted to in order to evade the law (e.g. as to gifts between husband and wife, and conveyances in fraud of creditors): but even where there is no such object in view,

1

6

Dig. 18. 1. 40. 2. Cf. the use of about,' say about,' 'more or less,' in English contracts. These terms mean that the quantity is not restricted to the exact number or amount specified, but that the vendor is to be allowed a moderate and reasonable latitude or margin in performance: Cross v. Eglin, 2 B. and Ad. 106: Moore v. Campbell, 10 Ex. 323: McConnell v. Murphy, L. R. 5 C. P. 203.

2 Ce que la doctrine entend par un prix non sérieux, c'est une somme d'une modicité dérisoire par comparaison à la valeur de la chose Demante, Cours analytique de Code Civil, vii. p. 33.

3 It is commonly said the pretium must be 'verum,' but this seems to be hardly a Roman use of the epithet. Le prix doit être un prix sérieux, et convenu avec intention qu'il pourroit être exigé: c'est pourquoi si une personne me vendoit une chose pour une certaine somme, et que par le contrat il m'en fit remise, un tel acte ne seroit pas une vente, mais une donation . . . il en seroit autrement si la remise du prix n'avoit été faite que ex intervallo: car il y a en ce cas un prix que l'acheteur s'est véritablement obligé de payer : Pothier, 18.

4 Pothier, 39.

Fairness or ade

quacy of

the price.

although the contract may be held a gift, a deposit, a mortgage, or (in short) whatsoever the parties may have really intended, it cannot produce the effects which the law says shall result from a sale1. Such sales as those of an inheritance 'nummo uno' under a trust before the enactment of the Sc. Trebellianum 2, and sales for a price which it was never intended to demand, were gifts, and were governed by the rules applying thereto 3: no action would lie for the pretended purchase money. There was, however, no reason why one should not sell a thing at a lower price than one could get for it in the open market to oblige a friend 5, though this would not be allowed if the real object was to evade such rules as those prohibiting gifts between husband and wife: a sale between them at half price, for instance, is half gift, half sale, and valid only in respect of the latter. It would also seem that if at the time when the contract was made it really was intended to be a bona fide sale, and not a gift, its character would not be altered by the vendor's subsequently remitting a portion or even the whole of the purchase money 7, for, as Ulpian says, it is not the payment of the purchase money, but the intention of the parties, which makes the contract, and determines its true nature 8.

So far as the fairness or adequacy of the price goes, the fundamental principle of the law is to leave the parties to make their own bargain. It is of the very nature of the contract that they shall be at liberty to sell and buy cheap or dear, provided of course that there is no fraud:

in emendo et vendendo naturaliter concessum est quod

1 Dig. 18. 1. 36: ib. 55: Cod. 4. 38. 3 & 9.

5

Cod. 8. 53. 34: ib. 36. 3: Pothier, 19. 39.

Dig. 18. 1. 38: Pothier, 21.

6 Dig. 24. 1. 5. 5: ib. 31. 3.

2 Gaius, ii. 252.

4 Cod. 4. 38. 9.

7 Arg. Dig. 19. 2. 5: si tibi habitationem locavero, mox pensionem

remittam, ex locato et conducto agendum erit.

8 Dig. 18. 1. 2. I.

pluris sit minoris emere, quod minoris sit pluris vendere, et ita invicem se circumscribere 1.

An early exception to this rule was the regulation of the price of corn on grounds of public policy: another is found in Justinian's enactment 3 providing that if one of two or more joint owners of a slave one desires to manumit him the others shall be compellable to sell him their shares, and fixing the compensation to be paid according to the slave's age and capacities. But the most important departure from the original principle was the enactment in A. D. 285 of Diocletian and Maximian, by which it was laid down. that if one sold a thing for less than half its real value one could rescind the sale unless the purchaser would make the price up to a fair one. Here, however, the sale is not void, but merely voidable, and the subject will be dealt with more fully, under the head of the vendor's right of rescission, in the chapter relating to modes of discharge. 1 Dig. 19. 2. 22. 3 : cf. 4. 4. 16. 4.

2 E. g. by the lex Sempronia, B. C. 24.

3 Inst. ii. 7. 4: Cod. 7. 7.

Cod. 7. 7. 1. 5: 6. 43. 3.

5 Cod. 4. 44. 2.

CHAPTER VIII.

General

rule as to the passing

of the risk to the

purchaser.

THE EFFECTS OF THE CONTRACT.

(a) Periculum and Commodum rei.

General rule as to the passing of the risk to the purchaser. Meaning of periculum rei. It passes when the emptio is 'perfecta.' Grounds on which it may be 'imperfecta:' (i) agreement not yet completely binding, because the price is not fixed, or there is a suspensive condition, or the purchaser has reserved the right of examining the goods: various cases of this: (ii) the goods not yet specifically determined: meaning of 'weighing, counting, or measuring' the goods: vendor's negligence in such cases. Rule as to the risk when the vendor has the right of selection: in sales in the alternative: and in sales of res alienae. Vendor's obligation to assign rights of action where the goods are at the purchaser's risk. Exceptions to the rule as to risk. Theories as to its rationale. Meaning of commodum rei: the purchaser is entitled to fruits, and accessions, from the moment the contract is concluded.

THE general principle is that on an absolute sale (and we may add on a sale subject to a resolutive condition) of a specifically determined and existing thing, that thing is at the risk of the purchaser from the moment that the contract is concluded, even before it has been made his by conveyance, and quite apart from the transfer of title: in other words, if after the contract is once made, the thing is lost, stolen, destroyed, or damaged without any fault of the vendor, the latter is nevertheless entitled to the purchase money, and the loss falls on the purchaser 1. Conversely,

1

Cum autem emptio et venditio contracta sit, periculum rei venditae statim ad emptorem pertinet: Inst. iii. 23. 3: cf. Dig. 18. 1. 34. 6: 18. 5. 5. 2: 18. 6. 1. pr., ib. 4. 1: ib. 8. pr.: Cod. 4. 48. 2. 1., ib. 5. In Pothier's time the law of France was the same: c'est un principe établi au titre du digeste de peric. et comm. rei rend. qu'aussitôt que le contrat de vente est parfait, la chose vendue devient aux risques de

the profits, emoluments, fruits and benefits generally derivable from it belong to the purchaser from the same moment1. The more precise meaning of these expressions, and the bearing of this important and somewhat singular principle on conditional sales, and sales in which the goods or the amount of the purchase money are not yet exactly determined, requires some further elucidation.

of peri

'Periculum' denotes any damage or injury, including Meaning entire loss or destruction, which may befall the subject- culum rei: matter of the contract after its conclusion: whether it is due to natural causes or accident, or to human action, is immaterial, though most of the illustrations which are given of it are of the first kind 2. It is important further to distinguish between the risk of destruction or entire loss (periculum interitus) and the risk of mere damage or depreciation not amounting to destruction (periculum deteriorationis 3), for, as we shall see, there are exceptional cases in which one of the parties has to bear risk of the one kind, and the other that of the other. As a rule, however, they go together.

when the

The property purchased is at the purchaser's risk as it passes soon as the emptio is 'perfecta.' The word 'perfecta' emptio is here means something more than that the parties are 'perfecta.' bound by the contract because they are agreed upon the goods to be sold and the price to be paid: the contract may be quite complete for the purpose of producing the

l'acheteur, quoiqu'elle ne lui ait pas encore été livrée, 307. By the Code Civil, Art. 1583, an agreement to sell or buy 'lorsque la vente est pure et simple, et qu'elle a pour objet un corps certain' ipso facto transfers property in the goods sold to the purchaser à l'égard du vendeur,' and they are at his risk on the simple ground that damnum sentit dominus.'

1 Nam et commodum eius esse debet cuius periculum est: Inst. loc. cit.

2 Dig. 18. 6. 1. pr. and 1: ib. 8: ib. 12: ib. 16. In Dig. ib. 15. I there is a case of theft.

3 Dig. 18. 6. 1. pr.: ib. 4. pr. and 1: ib. 8. pr.