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Justinian I · The Digest of Justinian §18.2.2.pr-18.2.2.1

Legal Nature of the Clause and the Buyer's Position

Passage 2671 of 9271 · Latin

Summary

Ulpian discusses whether a sale subject to a better offer is an unconditional sale with a resolutive condition or a conditional sale, stating that it depends on the parties' agreement, and explains the buyer's legal position regarding usucapion, fruits, and risk in the case of an unconditional sale.

[ULPIANUS libro uicensimo octauo ad Sabinum. ] §18.2.2.prQuotiens fundus in diem addicitur, utrum pura emptio est, sed sub condicione resoluitur, an uero condicionalis sit magis emptio, quaestionis est.
[ULPIANUS, on Sabinus, book 28.] Whenever an estate is sold subject to a better offer, it is a question whether it is an unconditional sale which is dissolved under a condition, or rather a conditional sale.
et mihi uidetur uerius interesse, quid actum sit: nam si quidem hoc actum est, ut meliore allata condicione discedatur, erit pura emptio, quae sub condicione resoluitur: sin autem hoc actum est, ut perficiatur emptio, nisi melior condicio offeratur, erit emptio condicionalis.
And it seems more correct to me that there is a difference according to what was agreed: for if indeed this was agreed, that the contract should be dissolved if a better offer is made, it will be an unconditional sale which is dissolved under a condition; but if, on the other hand, this was agreed, that the sale should be completed unless a better offer is made, it will be a conditional sale.
§18.2.2.1Ubi igitur secundum quod distinximus pura uenditio est, Iulianus scribit hunc, cui res in diem addicta est, et usucapere posse et fructus et accessiones lucrari et periculum ad eum pertinere, si res interierit,
Therefore, where according to our distinction there is an unconditional sale, Julian writes that this person, to whom the property was knocked down subject to a better offer, can both acquire by usucapion and gain the fruits and accessions, and that the risk belongs to him if the property perishes,

Notes

  1. 18.2.2.printeresse — interesse is used as an impersonal verb ('it makes a difference' or 'it is important') with the following indirect question clause quid actum sit ('what was transacted/agreed') acting as its subject. It functions as the infinitive in the accusative and infinitive (AcI) construction dependent on mihi uidetur ('it seems to me').
  2. 18.2.2.prdiscedatur — This is the impersonal passive third-person singular present subjunctive of the intransitive verb discedere ('to depart', here 'to withdraw from the contract' or 'to be dissolved'). The clause ut ... discedatur functions as a noun clause in apposition explaining the content of the demonstrative pronoun hoc.
  3. 18.2.2.1Iulianus scribit hunc ... — Iulianus scribit ('Julian writes') governs three accusative and infinitive (AcI) constructions. The subject accusative is hunc ('this person', i.e., the buyer), and the three infinitives (or infinitive phrases) are coordinated by et ... et ... et ...: 1) usucapere posse, 2) fructus et accessiones lucrari, and 3) periculum ad eum pertinere.

Cite this passage

Justinian I, The Digest of Justinian §18.2.2.pr-18.2.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.2.2.pr-18.2.2.1

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