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Justinian I · The Digest of Justinian §18.1.41.pr-18.1.41.1

Mortgage Release Clauses and Error in Substance

Passage 2629 of 9271 · Latin

Summary

This chunk discusses the distinction between a "condition" and an "obligation" in the sale of mortgaged land, and the invalidity of a contract and recovery of money when a silver-plated table is mistakenly sold as solid silver by both parties in good faith.

[IULIANUS libro tertio ad Urseium Ferocem. ] §18.1.41.prCum ab eo, qui fundum alii obligatum habebat, quidam sic emptum rogasset, ut esset is sibi emptus, si eum liberasset, dummodo ante kalendas Iulias liberaret, quaesitum est, an utiliter agere possit ex empto in hoc, ut uenditor eum liberaret.
[JULIANUS, in the third book of Commentary on Urseius Ferox.] When someone had asked to buy from a person who had a tract of land mortgaged to another, in such a way that it should be bought for him if he had released it, provided that he released it before the Kalends of July, it was asked whether he could effectively bring an action on purchase to force the seller to release it.
respondit: uideamus, quid inter ementem et uendentem actum sit.
He answered: let us see what was intended between the buyer and the seller.
nam si id actum est, ut omni modo intra kalendas Iulias uenditor fundum liberaret, ex empto erit actio, ut liberet, nec sub condicione emptio facta intellegetur, ueluti si hoc modo emptor interrogauerit: 'erit mihi fundus emptus ita, ut eum intra kalendas Iulias liberes', uel 'ita ut eum intra kalendas a Titio redimas'. si uero sub condicione facta emptio est, non poterit agi, ut condicio impleatur.
For if it was intended that the seller should by all means release the land within the Kalends of July, there will be an action on purchase to force him to release it, and the purchase will not be understood to have been made under a condition; as if, for example, the buyer had asked in this manner: "The land shall be bought for me on the terms that you release it within the Kalends of July," or "on the terms that you buy it back from Titius within the Kalends." But if the purchase was made under a condition, no action can be brought to force the condition to be fulfilled.
§18.1.41.1Mensam argento coopertam mihi ignoranti pro solida uendidisti imprudens: nulla est emptio pecuniaque eo nomine data condicetur.
You, without knowing, sold to me, who was also ignorant, a table covered with silver as if it were of solid silver: the purchase is void, and the money paid under that name shall be recovered by condictio.

Notes

  1. §18.1.41.prsic emptum rogasset, ut esset is sibi emptus, si eum liberasset, dummodo ante kalendas Iulias liberaret — The clauses "ut..." and "dummodo..." appear to be conditions (condicio) at first glance. However, Julianus points out that the availability of an action depends on whether this is a genuine condition affecting the existence of the contract, or an agreement (modus) imposing an obligation on the seller to release the land. If it is a true condition, no action (actio ex empto) can be brought to compel its fulfillment, because the contract does not yet exist until the condition is met.
  2. §18.1.41.1mihi ignoranti... imprudens — This indicates a situation where both the buyer (mihi ignoranti) and the seller (uendidisti imprudens) are in error regarding the substantial quality of the object (error in substantia). This mutual ignorance and lack of bad faith form the basis for the invalidity of the contract itself (nulla est emptio), rather than a claim of fraud.

Cite this passage

Justinian I, The Digest of Justinian §18.1.41.pr-18.1.41.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.1.41.pr-18.1.41.1

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