[ULPIANUS libro uicensimo octauo ad Sabinum. ] §18.2.4.prUbi autem condicionalis uenditio est, negat Pomponius usucapere eum posse nec fructus ad eum pertinere.
[ULPIANUS, on Sabinus, book 28.] However, where the sale is conditional, Pomponius denies that he can acquire by usucapion or that the fruits belong to him.
§18.2.4.1Idem Iulianus libro quinto decimo quaerit, si res in diem addicta interciderit uel ancilla decesserit, an partus uel fructus eius nomine adiectio admitti possit.
Likewise, Julian in his fifteenth book asks, if property sold subject to a better offer by a certain day has perished, or a female slave has died, whether an increased offer can be admitted on account of her offspring or fruits.
et negat admittendam adiectionem, quia alterius rei quam eius quae distracta est non solet adiectio admitti.
And he denies that the increased offer should be admitted, because an increased offer is not customarily admitted for a thing other than that which was sold.
§18.2.4.2Idem Iulianus eodem libro scribit, si ex duobus seruis uiginti uenditis et in diem addictis alter decesserit, deinde unius nomine qui superest emptor extiterit, qui supra uiginti promitteret, an discedatur a priore contractu? et ait dissimilem esse hanc speciem partus specie et ideo hic discedi a priore emptione et ad secundam perueniri.
Likewise, Julian writes in the same book, if one of two slaves sold for twenty and subject to a better offer by a certain day has died, and then a buyer appears for the remaining one who promises more than twenty, whether the prior contract is dissolved? And he says that this case is different from the case of the offspring, and therefore here the prior purchase is dissolved and the second one is reached.
§18.2.4.3Sed et Marcellus libro quinto digestorum scribit pure uendito et in diem addicto fundo si melior condicio allata sit, rem pignori esse desinere, si emptor eum fundum pignori dedisset: ex quo colligitur, quod emptor medio tempore dominus est: alioquin nec pignus teneret.
But Marcellus also writes in the fifth book of his Digests that if a land is sold unconditionally but subject to a better offer by a certain day, and a better offer is made, the property ceases to be pledged if the buyer had given that land as a pledge; from which it is inferred that the buyer is the owner in the meantime, for otherwise the pledge would not even have been valid.
§18.2.4.4Idem Iulianus libro octagensimo octauo digestorum scripsit eum, qui emit fundum in diem, interdicto quod ui aut clam uti posse: nam hoc interdictum ei competit, cuius interest opus non esse factum.
Likewise, Julian wrote in the eighty-eighth book of his Digests that he who bought a land subject to a better offer by a certain day can use the interdict "quod vi aut clam"; for this interdict belongs to him who has an interest in the work not being done.
fundo autem, inquit, in diem addicto et commodum et incommodum omne ad emptorem pertinet, antequam uenditio transferatur, et ideo, si quid tunc ui aut clam factum est, quamuis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus, inquit, quos percepit uenditi iudicio praestaturum.
Moreover, he says, when a land is sold subject to a better offer by a certain day, every advantage and disadvantage belongs to the buyer before the sale is transferred, and therefore, if anything is done by force or stealth at that time, although a better offer has been made, he himself will have the equitable interdict; but he says that he will have to surrender this action in the action on sale, just like the fruits which he has collected.
§18.2.4.5Cum igitur tunc recedatur ab emptione (ubi pure contrahitur) uel tunc non impleatur (ubi sub condicione fit) cum melior condicio sit allata: si falsus emptor subiectus sit, eleganter scribit Sabinus priori rem esse emptam, quia non uidetur melior condicio allata esse non existente uero emptore.
Since, therefore, the purchase is either dissolved (where the contract is unconditional) or not fulfilled (where it is made under a condition) at the time when a better offer is made: if a sham buyer has been substituted, Sabinus elegantly writes that the thing is bought by the prior buyer, because a better offer does not seem to have been made when there is no real buyer.
sed et si existat alius emptor, meliorem tamen condicionem non adferat, aeque dicendum erit perinde haberi, ac si non existeret.
But even if another buyer exists, yet does not bring a better offer, it must equally be said that it is treated just as if he did not exist.
§18.2.4.6Melior autem condicio adferri uidetur, si pretio sit additum.
Now, a better offer is deemed to be made if an addition has been made to the price.
sed et si nihil pretio addatur, solutio tamen offeratur facilior pretii uel maturior, melior condicio adferri uidetur.
But even if nothing is added to the price, yet an easier or earlier payment of the price is offered, a better offer is deemed to be made.
praeterea si locus oportunior soluendo pretio dicatur, aeque melior condicio allata uidetur: et ita Pomponius libro nono ex Sabino scribit.
Furthermore, if a more convenient place for paying the price is designated, a better offer likewise seems to be made; and so Pomponius writes in his ninth book from Sabinus.
idem ait, et si persona idoneor accedat ad emptionem, aeque uideri meliorem condicionem allatam.
He says the same, that if a more suitable person approaches the purchase, a better offer is likewise deemed to be made.
proinde si quis accedat eiusdem pretii emptor, sed qui leuioribus emat condicionibus uel qui satisdationem nullam exigat, melior condicio allata uidebitur.
Accordingly, if a buyer approaches at the same price, but who buys under lighter conditions or who demands no security, a better offer will seem to be made.
ergo idem erit probandum et si uiliore pretio emere sit paratus, ea tamen remittat, quae uenditori grauia erant in priore emptione.
Therefore, the same must be approved even if one is prepared to buy at a lower price, provided that he waives those things which were burdensome to the seller in the prior purchase.