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Justinian I · The Digest of Justinian §18.6.5.pr

Buyer's Default and Seller's Risk Before Measurement

Passage 2738 of 9271 · Latin

Summary

Discusses the mitigation of the seller's liability when the buyer is in default of removing the wine, and the retention of risk by the seller before measuring in a sale of wine by measure.

[PAULUS libro quinto ad Sabinum. ] §18.6.5.prSi per emptorem steterit, quo minus ad diem uinum tolleret, postea, nisi quod dolo malo uenditoris interceptum esset, non debet ab eo praestari.
[PAULUS, in Book 5 on Sabinus.] If it is due to the buyer that he did not remove the wine by the day, thereafter, unless something has been lost through the willful default of the seller, it ought not to be made good by him.
si uerbi gratia amphorae centum ex eo uino, quod in cella esset, uenierint, si admensum est, donec admetiatur, omne periculum uenditoris est, nisi id per emptorem fiat.
If, for example, one hundred amphorae of that wine which is in the cellar have been sold, if it is sold by measure, until it is measured, all risk belongs to the seller, unless this happens through the buyer.

Notes

  1. §18.6.5.prSi per emptorem steterit, quo minus — The impersonal expression `stare per aliquem quominus` means "it is due to someone that ... not," here referring to the buyer's default (mora accipiendi) in taking delivery.
  2. §18.6.5.prnon debet ab eo praestari — The subject is either `quod` (what was intercepted/lost) from the previous clause, or the risk (periculum) in general. After the buyer is in default, the seller's liability is limited to willful default (dolus malus).
  3. §18.6.5.prsi admensum est, donec admetiatur — Literally "if it has been measured, until it is measured," which is contradictory. We must either assume a loss of `non` in the manuscripts (`si non admensum est`) or construe `si admensum est` as "if it is a sale by measure (admensio)." Under the latter, the risk remains with the seller until measurement is completed.

Cite this passage

Justinian I, The Digest of Justinian §18.6.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:18.6.5.pr

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