[ULPIANUS libro uicensimo octauo ad Sabinum. ] §18.1.9.prIn uenditionibus et emptionibus consensum debere intercedere palam est: ceterum siue in ipsa emptione dissentient siue in pretio siue in quo alio, emptio imperfecta est.
[ULPIANUS, in the twenty-eighth book on Sabinus.] It is clear that consent must be present in buying and selling; but if they disagree either on the purchase itself, or on the price, or on anything else, the purchase is imperfect.
si igitur ego me fundum emere putarem Cornelianum, tu mihi te uendere Sempronianum putasti, quia in corpore dissensimus, emptio nulla est.
If, therefore, I thought I was buying the Cornelian estate, and you thought you were selling me the Sempronian estate, because we disagreed on the physical object, the purchase is void.
idem est, si ego me Stichum, tu Pamphilum absentem uendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem.
The same is true if I thought I was selling Stichus, and you thought you were selling Pamphilus, who was absent; for since there is disagreement on the physical object, it is clear that there is no purchase.
§18.1.9.1Plane si in nomine dissentiamus, uerum de corpore constet, nulla dubitatio est, quin ualeat emptio et uenditio: nihil enim facit error nominis, cum de corpore constat.
Clearly, if we disagree on the name, but there is agreement on the physical object, there is no doubt that the sale and purchase is valid; for an error in the name has no effect when there is agreement on the physical object.
§18.1.9.2Inde quaeritur, si in ipso corpore non erratur, sed in substantia error sit, ut puta si acetum pro uino ueneat, aes pro auro uel plumbum pro argento uel quid aliud argento simile, an emptio et uenditio sit.
Hence the question is raised: if there is no error as to the physical object itself, but there is an error in its substance—for instance, if vinegar is sold for wine, bronze for gold, lead for silver, or something else similar to silver—whether there is a sale and purchase.
Marcellus scribsit libro sexto digestorum emptionem esse et uenditionem, quia in corpus consensum est, etsi in materia sit erratum.
Marcellus wrote in the sixth book of his Digests that there is a sale and purchase, because there was consent as to the physical object, even though there was an error in the material.
ego in uino quidem consentio, quia eadem prope ousia est, si modo uinum acuit: ceterum si uinum non acuit, sed ab initio acetum fuit, ut embamma, aliud pro alio uenisse uidetur.
I indeed agree in the case of wine, because it is almost the same substance, provided that the wine has gone sour; but if the wine did not go sour, but was vinegar from the beginning, such as a sauce, one thing seems to have been sold instead of another.
in ceteris autem nullam esse uenditionem puto, quotiens in materia erratur.
In other cases, however, I think there is no sale whenever there is an error in the material.