[PAULUS libro quinto ad Plautium. ] §18.1.57.prDomum emi, cum eam et ego et uenditor combustam ignoraremus.
[PAULUS, On Plautius, Book V] I bought a house, when both I and the seller were ignorant that it had been burnt down.
Nerua Sabinus Cassius nihil uenisse, quamuis area maneat, pecuniamque solutam condici posse aiunt.
Nerva, Sabinus, and Cassius say that nothing was sold, although the site remains, and that any money paid can be recovered by condictio.
sed si pars domus maneret, Neratius ait hac quaestione multum interesse, quanta pars domus incendio consumpta permaneat, ut, si quidem amplior domus pars exusta est, non compellatur emptor perficere emptionem, sed etiam quod forte solutum ab eo est repetet: sin uero uel dimidia pars uel minor quam dimidia exusta fuerit, tunc coartandus est emptor uenditionem adimplere aestimatione uiri boni arbitratu habita, ut, quod ex pretio propter incendium decrescere fuerit inuentum, ab huius praestatione liberetur.
But if a part of the house remained, Neratius says that in this question it makes a great difference how large a part of the house remains consumed by the fire, so that, if indeed the greater part of the house has been burnt down, the buyer is not compelled to complete the purchase, but will also recover whatever may have been paid by him; but if indeed a half or less than a half has been burnt down, then the buyer must be compelled to fulfill the sale, an estimation having been made according to the judgment of an honest man, so that he may be released from the payment of whatever amount is found to decrease from the price on account of the fire.
§18.1.57.1Sin autem uenditor quidem sciebat domum esse exustam, emptor autem ignorabat, nullam uenditionem stare, si tota domus ante uenditionem exusta sit: si uero quantacumque pars aedificii remaneat, et stare uenditionem et uenditorem emptori quod interest restituere.
But if, on the other hand, the seller indeed knew that the house was burnt down, but the buyer was ignorant of it, no sale stands, if the entire house was burnt down before the sale; but if indeed any part of the building, however small, remains, both the sale stands and the seller must restore to the buyer his interest.
§18.1.57.2Simili quoque modo ex diuerso tractari oportet, ubi emptor quidem sciebat, uenditor autem ignorabat: et hic enim oportet et uenditionem stare et omne pretium ab emptore uenditori, si non depensum est, solui uel si solutum sit, non repeti.
In a similar manner, it ought to be treated from the opposite side, where the buyer indeed knew, but the seller was ignorant; for here too, both the sale must stand and the whole price must be paid by the buyer to the seller, if it has not been paid, or if it has been paid, it cannot be recovered.
§18.1.57.3Quod si uterque sciebat et emptor et uenditor domum esse exustam totam uel ex parte, nihil actum fuisse dolo inter utramque partem compensando et iudicio, quod ex bona fide descendit, dolo ex utraque parte ueniente stare non concedente.
But if both the buyer and the seller knew that the house was burnt down, either in whole or in part, nothing was done, because the fraud on both sides is set off against each other, and the action, which derives from good faith, does not allow the transaction to stand when fraud proceeds from both sides.