[POMPONIUS libro nono ad Sabinum. ] §18.1.6.prSed Celsus filius ait hominem liberum scientem te emere non posse nec cuiuscumque rei si scias alienationem esse: ut sacra et religiosa loca aut quorum commercium non sit, ut publica, quae non in pecunia populi, sed in publico usu habeantur, ut est campus Martius.
[POMPONIUS, in the ninth book on Sabinus.] But Celsus the son says that you cannot knowingly purchase a free man, nor can there be a transfer of any property if you know [it cannot be alienated]: such as sacred and religious places, or things whose commerce is not allowed, such as public things, which are not held among the wealth of the people but in public use, such as the Campus Martius.
§18.1.6.1Si fundus annua bima trima die ea lege uenisset, ut, si in diem statutum pecunia soluta non esset, fundus inemptus foret et ut, si interim emptor fundum coluerit fructusque ex eo perceperit, inempto eo facto restituerentur et ut, quanti minoris postea alii uenisset, ut id emptor uenditori praestaret: ad diem pecunia non soluta placet uenditori ex uendito eo nomine actionem esse.
If a tract of land had been sold with a term of payment in one, two, or three years, under the condition that, if the money were not paid on the appointed day, the land should be unbought; and that, if in the meantime the buyer should cultivate the land and gather fruits from it, these should be restored when the sale became void; and that the buyer should make good to the seller any smaller price for which it might afterwards be sold to another: if the money is not paid on the day, it is held that the seller has an action on the sale on that account.
nec conturbari debemus, quod inempto fundo facto dicatur actionem ex uendito futuram esse: in emptis enim et uenditis potius id quod actum, quam id quod dictum sit sequendum est, et cum lege id dictum sit, apparet hoc dumtaxat actum esse, ne uenditor emptori pecunia ad diem non soluta obligatus esset, non ut omnis obligatio empti et uenditi utrique solueretur.
Nor should we be confused because it is said that an action on the sale will lie when the land has become unbought; for in purchases and sales, we must follow what was intended rather than what was said, and since this was said by agreement, it is clear that only this was intended, namely, that the seller should not be bound to the buyer if the money were not paid on the day, and not that every obligation of purchase and sale should be dissolved for both.
§18.1.6.2Condicio, quae initio contractus dicta est, postea alia pactione immutari potest, sicuti etiam abiri a tota emptione potest, si nondum impleta sunt, quae utrimque praestari debuerunt.
A condition which was declared at the beginning of a contract can afterwards be changed by another agreement, just as it is also possible to withdraw from the entire purchase, if those things which ought to have been performed on both sides have not yet been fulfilled.