civiles-money paid for the use of a thing corporeal or incorporeal, moveable or immoveable-is not so simple a matter. If at the time at which the contract was made the property was under lease or hire to a third person, it would seem that a distinction must be drawn, according as the thing is one which can be used always and at any time, such as a house, a slave, or a carriage, or one which produces its fruits from which the rent is paid at regular intervals, such as a vineyard or land otherwise under cultivation. In the first case apparently the hire money will belong to the vendor before, and to the purchaser after, the perfection of the contract1. In the second case the authorities strongly support the view that the rent belongs to the vendor throughout the currency of the lease, though the reason given for this by the commentators 3, viz. that the purchaser can break the lease, obviously applies to the one case no less than to the other. Others hold that if the contract was perfected after the gathering of the fruits, the rent belongs to the vendor, but that all rent accruing thereafter in the future belongs to the purchaser. It seems to be assumed by these writers that in the passage cited Ulpian is speaking only of rent actually due, and that in no case could rent subsequently accruing belong to the vendor: but there would be no injustice in this if the purchase money were reduced in consideration of the land being subject to a lease, upon which the purchaser would naturally insist if he was aware of the facts; while if he was not, and was kept

1 Arg. Dig. 19. 1. 13. 13: cf. 7. 1. 26.

2 Si in locatis ager fuit, pensiones utique ei cedent qui locaverat . ... nisi si quid nominatim convenisse proponatur: Dig. 19. I. 13. 11.

3 E. g. Cujacius, Obss. xxv. c. 31.

4 E. g. Glück, Pandekten, 17. p. 196.

Denn das Pachtgeld ist als ein Surrogat der natürlichen Früchte zu betrachten, Glück, 1. c.

in the dark by the vendor, the latter would be liable to him in damages'. It may be the case that Ulpian was not considering to whom the rent will really belong, but who can sue for it; and though no doubt no one but the lessor-vendor can do this, still it is quite possible that he may be bound to hand it over, or to assign his rights to be paid or to sue for it if unpaid, to the purchaser 2.

The purchaser is also entitled to all accessions which may accrue to the property which he has bought from and after the moment at which the contract is perfect so as to throw the risk on him. Among these are included all benefit of increased value, all additions of soil by alluvion to land, children born of female slaves, and all property acquired through slaves of either sex, such as the inheritance of anyone who has died since the making of the contract, and who has appointed the slave his heir. Whether treasure which has been found on land before it has been conveyed to the purchaser, but after the perfection of the contract, belongs to him or to the vendor is a muchdisputed question. Some authorities hold that it would go to the vendor, as being still owner of the property, relying upon the enactment of Hadrian, which was confirmed by Justinian, and by which it was provided that treasure should belong to the owner of the land, if found by him, and should be divided between him and the finder if accidentally found by anyone else. But after the conclusion of the contract the vendor is owner only in relation to third parties, and consequently it would seem more correct to say that even if the vendor found the treasure himself

1 P. 59 supr.

2 The words nisi si quid nominatim convenisse proponatur' are,

however, very much against this hypothesis.

3 Dig. 18. 6. 7.

5

Dig. 19. 1. 13. 18.

4 Dig. 22. 1. 4. I.

6 Inst. ii. 1. 39.

he was entitled only to half as finder, and to none as owner 1.

1

In English law the commodum, like the periculum, is with the party who has the property in the goods. Any calamity befalling the goods after the sale is completed must be borne by the purchaser, and, by parity of reasoning, any benefit to them is his benefit, and not that of the vendor': per Blackburn J. in Sweeting v. Turner, L. R. 7 Q. B. at p. 313.

CHAPTER IX.

THE EFFECTS OF THE CONTRACT.

Performance by

each party

(b) Duties of the Parties. The Vendor.

Performance by each party is a concurrent condition of performance by the other. Duty of the vendor to deliver. What constitutes delivery. Time and place of performance by the vendor. The possession delivered must be vacua.' Vendor under no obligation to give a title as owner: strictness of this rule, and theories as to its rationale. Effect of discovery that land is subject to servitudes or charges undisclosed by the vendor. Vendor's obligation to take due care of the goods pending delivery. Delay in delivery. No property passes by the contract. Vendor's implied covenant of quiet enjoyment. History of the obligation to compensate the purchaser on eviction. Meaning of eviction.' Modes in which it may take place. The flaw in the purchaser's title must have existed when the contract was made. Eviction must not be attributable to purchaser's own fault. Eviction by a third person proving rights less than ownership. Necessity of the purchaser's notifying the vendor that the title is called in question: exceptions to this rule. Variation by contract of the vendor's liability for eviction stipulatio duplae: pactum de evictione non praestanda. Measure of the vendor's liability. Purchaser's right to retain the purchase money when the title is disputed. Partial eviction. Summary of cases in which there is no right to compensation on eviction. Subsidiary remedies of the purchaser. Note A Scotch, English, and French Law as to the effect of the contract in passing the property. Note B: Scotch and English Law as to implied warranty of title on a sale of goods.

IN the absence of agreement to the contrary (exemplified in the common case of a sale on credit), each of the parties is a con- is bound to perform his side of the contract immediately condition it is concluded: performance by one is not conditional on formance performance by the other 1. At the same time, as it would

current

of per

by the other.

6

The rule is the same in the laws of England, Scotland, and France. For England: unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer

be unreasonable to compel either to execute before the other, if either is sued for non-performance before he has received the consideration, he can defend himself by the exceptio doli (in this case called by the moderns exceptio non adimpleti contractus) whereby he is enabled to refuse performance on his side1 unless the plaintiff can show by replication that he has either performed, or has been ready and willing to perform throughout 2, or has been disabled from performance by impossibility arising from causes entirely beyond his control. In brief, neither party can succeed in an action against the other for non-performance unless he has either performed himself, or has been willing to perform on receiving performance from the other party.

The duties of the vendor may be what the parties may please to agree, so long as they are not at variance with

in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods: Chalmers, Sale of Goods, p. 46: Benjamin, p. 580, sqq.: Morton v. Lamb, 7 T. R., 125: Rawson v. Johnson, 1 East, 201: Wilks v. Atkinson, 1 Marshall, 412. For Scotland, When the bargain is simple and without special stipulation, the buyer's obligation is to pay immediately, and the seller is entitled to demand and have action for payment on offering delivery of the thing, or proving the delivery made. or on showing that the thing has perished by accident. The delivery must be immediately on the buyer performing all the conditions stipulated :' Bell's Principles of the Law of Scotland, §§ 100, 115. For the French Law see Demante, Cours analytique de Code Civil, vii. p. 70.

1 Si argentarius pretium rei, quae in auctione venierit, persequatur, obicitur ei exceptio, ut ita demum emptor damnetur, si ei res, quam emerit, tradita esset, quae est iusta exceptio: Gaius, iv. 126: qui pendentem vindemiam emit, si uvam legere prohibeatur a venditore, adversus eum petentem pretium exceptione uti poterit: si ea pecunia, qua de agitur, non pro ea re petitur, quae venit, neque tradita est: Dig. 19. 1. 25. cf. Dig. 44. 4. 5. 4: Cod. 8. 44. 8.

2 Offerri pretium ab emptore debet, quum ex empto agitur, et ideo, si partem pretii offerat, nondum est ex empto actio (i.e. he cannot sue with effect): venditor enim quasi pignus retinere potest eam rem, quam vendidit: Dig. 19. 1. 13. 8.

H