[IDEM libro trigesimo secundo ad edictum. ] §19.1.11.prEx empto actione is qui emit utitur.
[THE SAME AUTHOR, on the Edict, Book 32] The buyer uses the action on purchase.
§19.1.11.1Et in primis sciendum est in hoc iudicio id demum deduci, quod praestari conuenit: cum enim sit bonae fidei iudicium, nihil magis bonae fidei congruit quam id praestari, quod inter contrahentes actum est.
And first, it must be known that in this action only that is brought into trial which it was agreed to perform: for since it is an action of good faith, nothing is more congruent with good faith than that what was agreed between the contracting parties be performed.
quod si nihil conuenit, tunc ea praestabuntur, quae naturaliter insunt huius iudicii potestate.
But if nothing was agreed, then those things will be performed which are naturally inherent in the power of this action.
§19.1.11.2Et in primis ipsam rem praestare uenditorem oportet, id est tradere: quae res, si quidem dominus fuit uenditor, facit et emptorem dominum, si non fuit, tantum euictionis nomine uenditorem obligat, si modo pretium est numeratum aut eo nomine satisfactum.
And first, the seller must perform the thing itself, that is, deliver it; which thing, if indeed the seller was the owner, also makes the buyer the owner; if he was not, it binds the seller only under the name of eviction, provided that the price has been paid or security given on that account.
emptor autem nummos uenditoris facere cogitur.
The buyer, on his part, is compelled to make the coins the property of the seller.
§19.1.11.3Redhibitionem quoque contineri empti iudicio et Labeo et Sabinus putant et nos probamus.
Both Labeo and Sabinus think, and we approve, that redhibition is also contained in the action on purchase.
§19.1.11.4Animalium quoque uenditor cauere debet ea sana praestari, et qui iumenta uendidit solet ita promittere 'esse bibere, ut oportet'.
The seller of animals must also guarantee that they are performed healthy, and he who has sold draft beasts is accustomed to promise thus: 'that they eat and drink as they ought'.
§19.1.11.5Si quis uirginem se emere putasset, cum mulier uenisset, et sciens errare eum uenditor passus sit, redhibitionem quidem ex hac causa non esse, uerum tamen ex empto competere actionem ad resoluendam emptionem, et pretio restituto mulier reddatur.
If anyone had thought he was buying a virgin, when a woman was sold, and the seller, knowing this, allowed him to err, there is indeed no redhibition on this ground, but nevertheless the action on purchase is competent to dissolve the purchase, and, the price being restored, the woman should be returned.
§19.1.11.6Is qui uina emit arrae nomine certam summam dedit: postea conuenerat, ut emptio irrita fieret.
He who bought wine gave a certain sum as earnest: afterwards it was agreed that the purchase should be void.
Iulianus ex empto agi posse ait, ut arra restituatur, utilemque esse actionem ex empto etiam ad distrahendam, inquit, emptionem.
Julian says that an action on purchase can be brought to restore the earnest, and that the action on purchase is useful even for dissolving, he says, the purchase.
ego illud quaero: si anulus datus sit arrae nomine et secuta emptione pretioque numerato et tradita re anulus non reddatur, qua actione agendum est, utrum condicatur, quasi ob causam datus sit et causa finita sit, an uero ex empto agendum sit.
I ask this: if a ring has been given as earnest, and, the purchase having followed, the price paid, and the thing delivered, the ring is not returned, by what action must one proceed, whether it should be sued for by condictio, as having been given for a cause which has ended, or whether indeed one must proceed by the action on purchase.
et Iulianus diceret ex empto agi posse: certe etiam condici poterit, quia iam sine causa apud uenditorem est anulus.
And Julian would say that one can proceed by the action on purchase: certainly it can also be sued for by condictio, because the ring is now without cause in the possession of the seller.
§19.1.11.7Uenditorem, etiamsi ignorans uendiderit, fugitiuum non esse praestare emptori oportere Neratius ait.
Neratius says that the seller, even if he sold in ignorance, must guarantee to the buyer that the slave is not a runaway.
§19.1.11.8Idem Neratius, etiamsi alienum seruum uendideris, furtis noxisque solutum praestare te debere ab omnibus receptum ait et ex empto actionem esse, ut habere licere emptori caueatur, sed et ut tradatur ei possessio.
The same Neratius says it is accepted by everyone that even if you sell another's slave, you must guarantee that he is free from thefts and damages, and that there is an action on purchase to secure that the buyer is allowed to hold him, but also that possession is delivered to him.
§19.1.11.9Idem ait non tradentem quanti intersit condemnari: satis autem non dantem, quanti plurimum auctorem periclitari oportet.
The same author says that one who does not deliver is condemned in the amount of the buyer's interest; but one who does not give security is condemned in the maximum amount that the guarantor would risk.
§19.1.11.10Idem Neratius ait propter omnia haec satis esse quod plurimum est praestari, id est quod uisum est.
The same Neratius says that for all these things it is sufficient that the maximum be performed, that is, what was decided.
est ut sequentibus actionibus deducto eo quod praestitum est lis aestimetur.
This is so that in subsequent actions, after deducting what has been performed, the dispute may be assessed.
§19.1.11.11Idem recte ait, si quid horum non praestetur, cum cetera facta sint, nullo deducto condemnationem faciendam.
The same author rightly says that if any of these things is not performed, when the other things have been done, the condemnation must be made without any deduction.
§19.1.11.12Idem libro secundo responsorum ait emptorem noxali iudicio condemnatum ex empto actione id tantum consequi, quanti minimo defungi potuit: idemque putat et si ex stipulatu aget: et siue defendat noxali iudicio, siue non, quia manifestum fuit noxium seruum fuisse, nihilo minus uel ex stipulatu uel ex empto agere posse.
The same author in his second book of responses says that a buyer condemned in a noxal action recovers by the action on purchase only as much as the minimum with which he could have discharged his liability; and he thinks the same even if he sues on a stipulation; and whether he defends in the noxal action or not, because it was manifest that the slave was noxious, he can nevertheless sue either on the stipulation or on the action on purchase.
§19.1.11.13Idem Neratius ait uenditorem in re tradenda debere praestare emptori, ut in lite de possessione potior sit: sed Iulianus libro quinto decimo digestorum probat nec uideri traditum, si superior in possessione emptor futurus non sit: erit igitur ex empto actio, nisi hoc praestetur.
The same Neratius says that the seller, in delivering the thing, must guarantee to the buyer that he will be superior in a lawsuit concerning possession; but Julian in his fifteenth book of digests approves that it is not deemed to be delivered if the buyer is not going to be superior in possession; therefore there will be an action on purchase unless this is performed.