1. It is quite settled that the transaction is incomplete, when the seller says to the intending purchaser: 'you shall have the thing for what you please,' 'for what you think fair,'' for what you think it worth.'

2. Some are of opinion that a contract to buy poison will not stand any more than a partnership or a mandate for an improper purpose this opinion may no doubt be considered sound with respect to poisons which do not admit of being compounded with another substance into something useful to man; but the contrary is true of those which lose their hurtful qualities by mixture

as part of the price) validates a parol contract for the sale of goods worth £10 or more (Statute of Frauds, § 17). On forfeiture of earnest, see Howe v. Smith (1884) 27 Ch. D. 101; and on the question whether the giving of earnest can alter the property, Benj. p. 314, who holds its true legal effect to be evidentiary only, the property passing in virtue of the bargain and sale which it completes.

The Scotch text-writers assign the same function to earnest as the classical jurists did. Stair, i. 14. 3; Erskine, iii. 3. 5. It is in use in certain localities in the hiring of servants as the test of engagement; but it is not essential, unless prescribed by local usage, when there is locus poenitentiae till it has been given. The return of the earnest never dissolves an engagement by Scots law. Bell, Prin. § 173.

§ 1. The general opinion is that a sale in which the fixing of the price is referred to the buyer is null (see p. 22, note, and Pothier, § 23); but Windscheid (§ 386) thinks the bargain is not invalid, though it is incomplete (imperfectum) till the price is actually named, which must be done pro viri boni arbitrio,—an unjust estimate can be set aside.

By Scots law the price may be referred to the award of one of the parties, subject to equitable modification by the judge. Ersk. iii. 3. 4; Bell, Prin. § 92; Earl of Montrose (1639) M. 14, 155; Steven (1760) M. 3158; Lavaggi v. Pirie (1872) 10 Macp. 312.

§ 2. The law as to the sale of poisons is stated at length in Digest, 48, tit. 8, Ad legem Corneliam de sicariis et ueneficis, esp. L. 3. Venenum itself was a word of neutral meaning, including

his antidoti et alia quaedam salubria medicamenta conficiantur, aliud dici potest.

3. Si quis amico peregre eunti mandauerit, ut fugitiuum suum quaerat et si inuenerit uendat, nec ipse contra senatus consultum committit, quia non uendidit, neque amicus eius, quia praesentem uendit emptor quoque, qui praesentem emit, recte negotium gerere intellegitur.

4. Si res uendita per furtum perierit, prius animaduertendum erit, quid inter eos de custodia rei conuenerat: si nihil appareat conuenisse, talis custodia desideranda est a uenditore, qualem bonus pater familias suis rebus adhibet: quam si praestiterit et tamen rem perdidit, securus esse debet, ut tamen scilicet uindicationem rei et condictionem exhibeat emptori. unde uidebimus in personam eius qui alienam rem uendiderit: cum is nullam uindicationem aut condictionem habere possit, ob id ipsum damnandus est, quia, si suam rem uendidisset, potuisset eas actiones ad emptorem transferre.

medicines and love-philtres (amatorium); the statute only struck at the preparation, sale, and possession of noxious drugs (venena mala) necandi hominis causa. Apart from the statutory provisions in that behalf, contracts which had for their object anything contrary to morals and public policy were void at common law, as they are with us: si maleficii societas coita sit, constat nullam esse societatem (D. 17. 2. 57).

§ 3. The reference is to a SC. mentioned in D. 48. 15. 2. That title deals at length with the lex Fabia de plagiariis (under which it was a criminal offence to buy or sell a free person with the knowledge that he was so) and with the sale of slaves in fuga. The SC. forbade what was called emptio fugae, i.e. a sale of a runaway slave by his owner under which the buyer took the risk of his capture, as the buyer of a spes took the risk of the expectation being realised. A mandate, however, to search for and sell the runaway, and a sale conditional upon his being caught, were not illegal transactions, because the sale is postponed till the slave has ceased to be in fuga. Cp. Inst. ii. 6. 1.

§ 4. Though periculum rei venditae nondum traditae est emptoris, yet there was an accessory obligation on the seller to be guilty

with other substances, so that antidotes and other health-giving medicines are prepared from them.

3. A man who gives a friend who is about to travel a mandate to search for his runaway slave and sell him if he finds him, does not himself contravene the senatus-consult, for he has not sold him, neither does his friend because he sells a slave who is present; and it is quite a legal transaction on the buyer's part also, for he buys a slave who is present.

4. In the event of the thing sold being lost by theft, the first point to be looked to is, What agreement was made about the custody of the thing? If it appears there was none, the same degree of watchfulness is to be required of the seller as a careful man bestows upon his own affairs: if he comes up to that standard, and has notwithstanding lost the thing, he should incur no liability, provided of course he cedes to the purchaser his real action and his personal action. This will explain the rule applicable to the case of one who sells what belongs to another: he is liable in damages just because these actions are not competent to him; for, had he sold what belonged to him, he would have been in a position to cede the right to these actions to the buyer.

of no default in taking care of the thing until delivery, to exercise the care of a bonus paterfamilias: custodiam autem uenditor talem praestare debet quam praestant hi quibus res commodata est, ut diligentiam praestet exactiorem quam in suis rebus adhiberet (D. 18. 6. 3). He was answerable for fault absolutely, (culpa levis in abstracto as the modern civilians call it, i.e. fault measured by the care bestowed on their own property by careful men generally), according to the maxim, in contractibus in quibus utriusque contrahentis utilitas uersatur, leuis culpa, non etiam leuissima praestatur (cp. Inst. iii. 23. 3), quidquid enim sine dolo et culpa uenditoris accidit, in eo uenditor securus est; and he was excused only by damnum fatale uel uis magna (D. 18. 6. 2, 1). But the seller might by express undertaking become responsible for casus as well; he was then said custodiam suscipere, and was bound to show the utmost possible vigilance, and to answer even for accident, unless at all events he could show that no human

5. In his quae pondere numero mensuraue constant, ueluti frumento uino oleo argento, modo ea seruantur quae in ceteris, ut simul atque de pretio conuenerit, uideatur perfecta uenditio, modo ut, etiamsi de pretio conuenerit, non tamen aliter uideatur perfecta uenditio, quam si admensa adpensa adnumerataue sint. nam si omne uinum uel oleum uel frumentum uel argentum quantumcumque esset uno pretio uenierit, idem iuris est quod in ceteris rebus. quod si uinum ita uenierit, ut in singulas amphoras, item oleum, ut in singulos metretas, item frumentum, ut in singulos medios, item argentum, ut in singulas libras certum pretium diceretur, quaeritur, quando uideatur emptio perfici. quod similiter scilicet quaeritur et de his quae numero constant, si pro numero corporum pretium fuerit statutum. Sabinus et Cassius tunc perfici emptionem existimant, cum adnumerata admensa adpensaue sint, quia uenditio quasi sub hac condicione uidetur fieri, ut* in singulos metretas aut in singulos modios quos quasue admensus eris, aut in singulas libras quas adpenderis, aut in singula corpora quae adnumeraueris.

foresight could have guarded against it. Such, for instance, was the obligation of shipmasters, etc., under the Edict; they were held omnium recipere custodiam quae in navem illata sunt, and were responsible etiamsi sine culpa res periit uel damnum datum est, nisi si quid damno fatali contingit (D. 4. 9. 1, 8; ib. 3, 1; ср. Juridical Review (Oct. 1891), iii. p. 316).

As to the seller's duty of transferring his rights of action, see Inst. loc. cit.; D. 19. 1. 31 pr. The vendee could not bring the actio furti in his own name before delivery (D. 47. 2. 14 pr.; ib. 81 pr.).

Pothier (Vente, § 55) holds that, when the vendee is in mora by delaying or refusing to take away the goods, the vendor's obligation is narrowed down to liability for malicious conduct or gross neglect, according to the rule cum moram emptor adhibere coepit, iam non culpam, sed dolum malum tantum praestandum a uenditore (D. 18. 6. 18).

The vendor is, by Scots law also, under a similar obligation to attend to the vendee's interest in the interval between sale and delivery. Ersk. iii. 3. 7. The cases have mainly been with reference to the precautions proper to be taken where goods are to be

5. With regard to things which are weighed, counted, or measured, as grain, wine, oil, silver, sometimes the same principle holds for them as for other things—a sale is considered complete as soon as the price is settled; sometimes the rule is that, although the price is settled, yet the sale is not held to be complete until a process of measuring, weighing, or counting has followed. Thus when a whole lot of wine, oil, grain, or silver is sold for a slump sum, however much there may be of it, the law is the same as for other things. But when wine is sold at so much a jar, oil at so much a measure, wheat at so much a bushel, silver at so much a pound, the question arises, When is the sale complete? The same question, of course, arises about things which pass by number, when a price is fixed at so much a head. Sabinus and Cassius think the sale is completed only when the counting, measuring, or weighing has been done, because the sale would seem to be made subject to this condition, so to speak, that the contract is to have reference to the separate measures or bushels to be measured, the separate pounds to be weighed, or the separate units to be counted out of the mass.

delivered at a distant place and have to be transmitted through a carrier. Cp. S. G. B. §§ 34, 35; Bell, Prin. §§ 116-118.

Lord Blackburn (Sale, p. 260) seems to hold that where the seller remains in possession of goods after the property in them has passed to the buyer-as it does in England in virtue of the contract, if the goods are specific and no contrary intention appears the seller is a bailee for the buyer, and is subject to the same responsibility for careful keeping as the Roman law imposed upon the seller before the property had passed by delivery. But there appears to be no decision defining the nature of such bailment' (Chalmers, Sale, p. 36).

§§ 5-7. On the question of periculum generally, see Vangerow, § 591. The rule of Roman law is quite distinct that, as soon as the contract is complete, the goods are at the risk of the purchaser, and, if they perish accidentally, the seller is absolutely free, but the buyer is bound to pay the price, although the goods have not been delivered and the property in them has not been transferred. The all-important matter, therefore, is to ascertain when a sale is