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Justinian I · The Digest of Justinian §18.5.2.pr

Rescission and Novation of Sale by Altering Price

Passage 2725 of 9271 · Latin

Summary

This text explains that when a sale of the same object is repeated between the same parties for a different price, the prior sale is cancelled and the subsequent one stands if the contract is still untouched; however, this rule does not apply once the price has been paid.

[IDEM libro uicensimo quarto ad Sabinum. ] §18.5.2.prSi quam rem a te emi, eandem rursus a te pluris minorisue emero, discessimus a priore emptione (potest enim, dum res integra est, conuentione nostra infecta fieri emptio) atque ita consistit posterior emptio, quasi nulla praecesserit.
[THE SAME, Book 24 on Sabinus.] If I have bought some thing from you, and then buy the same thing back from you again for more or less, we have withdrawn from the prior sale (for, as long as the matter is untouched, a sale can be made undone by our agreement) and thus the subsequent sale stands, just as if no sale had preceded it.
sed non poterimus eadem ratione uti post pretium solutum emptione repetita, cum post pretium solutum infectam emptionem facere non possumus.
But we will not be able to use the same reasoning upon a repeated sale after the price has been paid, since after the price has been paid we cannot make the sale undone.

Notes

  1. §18.5.2.prres integra — A legal term referring to a state where the performance of contractual obligations has not yet begun. In a contract of sale, it means that neither party has performed their principal obligations, such as delivery of the object or payment of the price. At this stage, dissolution of the contract by mutual agreement is permitted.
  2. §18.5.2.premptione repetita — An ablative absolute or an ablative phrase of means/circumstance, composed of the noun emptio (sale) and the perfect participle repetita (repeated). It is translated as 'when the sale is repeated' or 'by repeating the sale'. Here, it refers to making a new agreement of sale for the same object subsequent to a prior one.
  3. §18.5.2.prinfectam ... facere — Meaning 'to make undone' or 'to cancel'. Combining the adjective infectus (unperformed, undone) as a predicate accusative with the verb facere (to make/render), it denotes the retroactive dissolution (mutual cancellation) of a legally established contract of sale.

Cite this passage

Justinian I, The Digest of Justinian §18.5.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.5.2.pr

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