CONTENTS

CHAPTER I.

NATURE OF SALE, AND ITS RELATION ΤΟ OTHER COGNATE

CONTRACTS

Definition of sale (1). The contract is consensual (1) and

synallagmatic (2). Fundamental points of difference between

the English and the Civil Law (3). Relation of Sale to Ex-

change (3) and to Hiring and Letting (6).

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I-8

CHAPTER II.

WHO CAN BUY AND SELL

Persons entirely unable to contract (9).

9-15

Special restrictions:

tutors and curators (9): public officials (10). Effect of contract

of sale entered into by pupillus without auctoritas (11) is ho

bound? (13).

CHAPTER III.

WHAT CAN AND CANNOT BE BOUGHT AND SOLD

16-27

The general principle (16). Sale of servitudes (17): of res

alienae (17) of res extra commercium (19): of freemen (20) :

of res furtivae (20) of things whose alienation is forbidden by

law (20) of things which have ceased to exist (21). Purchase

of res sua (22). Sale of free services (24). Restrictions on right

of sale imposed by testament (24) or by contract (25). Note A:

sale of res alienae in French and English law (26).

Emptio generis (28). Sale of article to be made or procured by

the vendor is it really sale? (29). Emptio spei (30). Purchase

of an inheritance (32). Purchase of a debt, or of a right of

action, whether in rem or in personam (36).

Rules relating to

assignment (37).

CHAPTER V.

PAGE

HOW THE CONTRACT IS CONCLUDED

39-49

Necessity of complete agreement between the parties (39). No

forms required for the validity of the contract (40). Justinian's

enactment in Inst. iii. 23. pr. as to writing: it relates to negotia-

tions (41), not to a sale definitely agreed upon (43). Mode of

expressing agreement (44). Contracts made by correspondence

(45) and through agents (48). Arra or earnest (48).

CHAPTER VI.

MISTAKE. FRAUD. DURESS

:

50-65

General principles (50). Mistake as to the nature of the trans-

action (52) as to the subject-matter of the contract: its

identity (52): its existence (53): its quantity (54): its material,

qualities or properties (55). Mistake as to the price (56).

Mistake of motive (56). Mistake as to the identity of the other

party (57). Dolus or fraud (57). What dolus includes: wilful

mis-statements (58): active concealment (59): reckless igno-

rance as to truth of statements (59) innocent non-disclosure

(60). Effect of these on the validity of the contract (61).

Metus or duress, and its effects (63). Metus has a wider opera-

tion than dolus (64).

The price must be fixed in money (66). Consideration con-

sisting partly in money, partly in some other thing (67). The

price must be fixed (68): no doctrine of a 'reasonable price'

(69). Agreement that the price shall be fixed by an arbitrator

or expert (70). Variation of the price (72). Fixing of the price

where a number of things are bought together (72). The price

must be intended as a bona fide equivalent for the goods (73).

Fairness or adequacy of the price (74).

CHAPTER VIII.

THE EFFECTS OF THE CONTRACT. (a) PERICULUM and Com-

76-95

MODUM REI

General rule as to the passing of the risk to the purchaser (76).

Meaning of 'periculum rei': it passes when the emptio is ' per-

fecta' (77). 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 (78), or the purchaser

has reserved the right of examining the goods (79): various

cases of this (80): a suspensive condition (80): a resolutive con-

dition proper (82): a pactum displicentiae (82). (ii) The goods not

yet specifically determined (83) : meaning of weighing, count-

ing, or measuring' the goods (86): vendor's negligence in such

cases (87). Rules as to the risk when the vendor has the right

of selection, in sales in the alternative (88), and in sales of res

alienae (89). Vendor's obligation to assign rights of action

where the goods are at the purchaser's risk (89). Exceptions

to the rule as to risk, and theories as to its rationale (90).

Meaning of 'commodum rei': the purchaser is entitled to

fruits and accessions from the moment the contract is con-

cluded (92).

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CHAPTER IX.

THE EFFECTS OF the Contract. (b) The Vendor's DUTIES 96–141

Performance by each party is a concurrent condition of per-

formance by the other (96). Duty of the vendor to deliver (98).

What constitutes delivery (99). Time and place of performance

by the vendor (100). The possession delivered must be 'vacua'

(101). Vendor under no obligation to give a title as owner (102) :

strictness of this rule, and theories as to its rationale (103).

Effect of discovery that land is subject to servitudes or charges

undisclosed by the vendor (105). Vendor's obligation to take

due care of the goods pending delivery (106). Delay in delivery

(109). No property passes by the contract (110). Vendor's im-

plied covenant of quiet enjoyment (110). History of the ob-

ligation to compensate the purchaser on eviction (111). Meaning

of 'eviction' (112). Modes in which it may take place (113).

The flaw in the purchaser's title must have existed when the

contract was made (115). Eviction must not be attributable to

the purchaser's own fault (116). Eviction by a third person

proving rights less than ownership (117). The purchaser must

notify the vendor that the title is called in question (117): ex-

ceptions to this rule (120). Variation by contract of the vendor's

liability for eviction: stipulatio duplae (122): pactum de evic-

tione non praestanda (123). Measure of the vendor's liability

(124). Purchaser's right to retain the purchase money when

the title is disputed (128). Partial eviction (129). Summary

of cases in which there is no right to compensation on eviction

(131). Subsidiary remedies of the purchaser (133). Note A:

Scotch, English, and French law as to the effect of the contract

in passing the property (135). Note B: Scotch and English law

as to implied warranty of title on a sale of goods (139).

CHAPTER X.

THE EFFECTS OF THE CONTRACT. (c) THE PURCHASER'S

PAGK

. 142-155

Payment of the purchase-money: the purchaser must make it

the property of the vendor (142). By whom and to whom pay-

ment may be made (143). Passing of property in the goods,

even when delivered, usually conditional on payment (144).

Interest due on unpaid purchase-money (146). Purchaser's

duty to accept delivery, and to reimburse the vendor his

charges (147). Consequences of the purchaser's mora (148).

The Civil Law on the subject of vendor's lien (149) and stop-

page in transitu (151).

CHAPTER XI.

CONDITIONAL SALES

156-177

Conditions in general distinguished into suspensive and resolu-

tive (156). Conditions distinguished from terms in the contract

(157). Conditions affirmative and negative (159). Conditions

attached for the benefit of the vendor: (i) Addictio in diem:

what is a 'better offer'? (160). Effects of addictio when the

condition is suspensive (163) and resolutive (164). When is

the condition satisfied? (165). Sales by auction (167). (ii) Lex

commissoria (169): the condition here always resolutive: when

it is satisfied (170). Effect of a sale subject to a lex commissoria

(171). Conditions attached for the benefit of the purchaser

(173): (i) Emptio ad gustum (174): (ii) pactum displicentiae

(175). Common terms in sales: reservation by vendor of right

of preemption (176): pactum de retrovendendo (176) and de

retroemendo (177).

CHAPTER XII.

MODES OF DISCHARGE

. 178-220

Contraria voluntas, or mutual waiver before performance by

either party (179). Partial discharge by subsequent variation

of terms (180). Rescission by the vendor for inadequacy of

price (laesio enormis, 180): difficulties of the texts on the subject

(182). When the price is deemed to be inadequate (183). The

courses open to the vendor (183). Effects of successful action

for rescission (184). Cases in which the vendor may not rescind

(186) other doubtful cases (187). The purchaser's right of

rescission on account of undisclosed defects (188). Historical

sketch of the vendor's liability for non-disclosure: the old Civil

Law (189): the practice of exacting a covenant as to quality (192):

the Edilician Edict (192). Extension of its rules to all sales

by juristic construction (194). What defects render the contract

liable to rescission? (195). Distinction between slaves (196) and

animals (197). The defect must exist at the date of the con-

tract, and be unknown to the purchaser (197). Purchase by

agents with knowledge (198). Defect in accessions: in one of

several things purchased together (199) in part of an uni-

versitas (200). Vendor's duty to disclose defects of these kinds

(200). The purchaser's remedies: (1) by exceptio, (2) by actio

redhibitoria (201). Effects of this action: what must be done

by the purchaser (202) and by the vendor (203). Covenants

sometimes demandable by either party (206). Points in which

the parties are differently treated under the actio redhibitoria

(207). The period of limitation (209). (3) By actio quanti

minoris or aestimatoria (210): its period of limitation and

effects (211). Reaction of these Edilician remedies on those of

the Civil Law (212). Cases in which they are inapplicable (214).

Note A Implied warranty of quality in Scotch and English

law (216).

DIG. XVIII. 1.

DE CONTRAHENDA EMPTIONE

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