[GAIUS libro decimo ad edictum prouinciale. ] §18.1.35.prQuod saepe arrae nomine pro emptione datur, non eo pertinet, quasi sine arra conuentio nihil proficiat, sed ut euidentius probari possit conuenisse de pretio.
[GAIUS libro decimo ad edictum prouinciale.] The fact that something is often given under the name of earnest-money for a purchase does not mean that without earnest-money the agreement is of no effect, but that it can be more clearly proved that the price was agreed upon.
§18.1.35.1Illud constat imperfectum esse negotium, cum emere uolenti sic uenditor dicit: 'quanti uelis, quanti aequum putaueris, quanti aestimaueris, habebis emptum'.
It is established that the transaction is incomplete when the seller says to one who wishes to buy: 'You shall have it bought for as much as you wish, as much as you think fair, or as much as you value it at'.
§18.1.35.2Ueneni mali quidam putant non contrahi emptionem, quia nec societas aut mandatum flagitiosae rei ullas uires habet: quae sententia potest sane uera uideri de his quae nullo modo adiectione alterius materiae usu nobis esse possunt: de his uero quae mixta aliis materiis adeo nocendi naturam deponunt, ut ex his antidoti et alia quaedam salubria medicamenta conficiantur, aliud dici potest.
Some think that no sale is contracted of a noxious poison, because neither a partnership nor a mandate has any force in a shameful matter; which opinion can indeed seem true regarding those things which can in no way be of use to us by the addition of another substance; but regarding those things which, when mixed with other substances, lose their harmful nature to such an extent that antidotes and certain other wholesome remedies are made from them, something else can be said.
§18.1.35.3Si 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.
If anyone mandates a friend going abroad to search for his runaway slave and, if he finds him, to sell him, he himself does not act against the senatusconsultum, because he has not sold him, nor does his friend, because he sells him when present; and the buyer also, who buys him when present, is understood to conduct the transaction lawfully.
§18.1.35.4Si 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.
If a sold thing has perished through theft, it must first be considered what had been agreed between them concerning the custody of the thing. If it does not appear that any agreement was made, such custody is required of the seller as a good head of a household applies to his own things. If he has provided this and yet lost the thing, he ought to be free from liability, provided, of course, that he makes available to the buyer the action for recovery of the thing (uindicatio) and the personal action for recovery (condictio).
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.
Hence, we shall consider the case of one who has sold another's property: since he can have no uindicatio or condictio, he must be held liable for this very reason, because, if he had sold his own property, he could have transferred these actions to the buyer.
§18.1.35.5In 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.
In the case of those things which consist in weight, number, or measure, such as grain, wine, oil, or silver, sometimes the same rules are observed as in other things, so that as soon as the price is agreed upon, the sale is deemed to be complete; sometimes, even if the price is agreed upon, the sale is not deemed to be complete otherwise than if they have been measured, weighed, or counted.
nam si omne uinum uel oleum uel frumentum uel argentum quantumcumque esset uno pretio uenierit, idem iuris est quod in ceteris rebus.
For if all the wine, oil, grain, or silver, however much there was, is sold for a single price, the same rule of law applies as in other things.
quod si uinum ita uenierit, ut in singulas amphoras, item oleum, ut in singulos metretas, item frumentum, ut in singulos modios, item argentum, ut in singulas libras certum pretium diceretur, quaeritur, quando uideatur emptio perfici.
But if wine is sold in such a way that a certain price is named for each amphora, likewise oil for each metretes, likewise grain for each modius, likewise silver for each pound, it is asked when the purchase is deemed to be completed.
quod similiter scilicet quaeritur et de his quae numero constant, si pro numero corporum pretium fuerit statutum.
This is of course similarly asked also concerning those things which consist in number, if the price was fixed according to the number of individual units.
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.
Sabinus and Cassius think that the purchase is completed then, when they have been counted, measured, or weighed, because the sale seems to be made, as it were, under this condition, for each metretes or each modius which you shall have measured, or for each pound which you shall have weighed, or for each individual unit which you shall have counted.
§18.1.35.6Ergo et si grex uenierit, si quidem uniuersaliter uno pretio, perfecta uidetur, postquam de pretio conuenerit: si uero in singula corpora certo pretio, eadem erunt, quae proxime tractauimus.
Therefore, even if a herd is sold, if indeed collectively for a single price, it is deemed to be complete after the price is agreed upon; but if for a certain price for each individual animal, the same rules will apply which we have just discussed.
§18.1.35.7Sed et si ex doleario pars uini uenierit, ueluti metretae centum, uerissimum est (quod et constare uidetur) antequam admetiatur, omne periculum ad uenditorem pertinere: nec interest, unum pretium omnium centum metretarum in semel dictum sit an in singulos eos.
But also if a part of the wine from a vat is sold, for example, a hundred metretae, it is most true (which also seems to be established) that before it is measured, all risk belongs to the seller; nor does it matter whether a single price was named once for all the hundred metretae or for each of them.
§18.1.35.8Si quis in uendendo praedio confinem celauerit, quem emptor si audisset, empturus non esset, teneri uenditorem.
If anyone in selling a tract of land has concealed a neighbor, whom the buyer, if he had heard of him, would not have bought, the seller is held liable.