[ULPIANUS libro trigesimo secundo ad edictum. ] §19.1.13.prIulianus libro quinto decimo inter eum, qui sciens quid aut ignorans uendidit, differentiam facit in condemnatione ex empto: ait enim, qui pecus morbosum aut tignum uitiosum uendidit, si quidem ignorans fecit, id tantum ex empto actione praestaturum, quanto minoris essem empturus, si id ita esse scissem: si uero sciens reticuit et emptorem decepit, omnia detrimenta, quae ex ea emptione emptor traxerit, praestaturum ei: siue igitur aedes uitio tigni corruerunt, aedium aestimationem, siue pecora contagione morbosi pecoris perierunt, quod interfuit idonea uenisse erit praestandum.
[ULPIANUS, On the Edict, Book 32] Julian, in his fifteenth book, makes a distinction in the condemnation on the action on purchase between one who sold something knowingly and one who sold in ignorance: for he says that he who has sold a diseased beast or a defective beam, if indeed he did so in ignorance, shall be liable on the action on purchase only for so much less as I would have bought it for if I had known it to be so; but if he knowingly kept silent and deceived the purchaser, he must make good to him all the losses which the purchaser has sustained from that purchase: therefore, if the building collapsed because of the defect in the beam, the value of the building must be made good, or if the cattle perished by contagion from the diseased beast, the interest of the purchaser in having had healthy ones sold to him must be made good.
§19.1.13.1Item qui furem uendidit aut fugitiuum, si quidem sciens, praestare debebit, quanti emptoris interfuit non decipi: si uero ignorans uendiderit, circa fugitiuum quidem tenetur, quanti minoris empturus esset, si eum esse fugitiuum scisset, circa furem non tenetur: differentiae ratio est, quod fugitiuum quidem habere non licet et quasi euictionis nomine tenetur uenditor, furem autem habere possumus.
Likewise, he who has sold a thief or a runaway, if indeed he did so knowingly, must make good how much it was to the purchaser's interest not to be deceived; but if he sold in ignorance, he is liable indeed in respect of the runaway for how much less the purchaser would have bought him for if he had known him to be a runaway, but in respect of the thief he is not liable: the reason for the distinction is that indeed it is not permitted to keep a runaway, and the seller is liable as it were under the head of eviction, whereas we can keep a thief.
§19.1.13.2Quod autem diximus 'quanti emptoris interfuit non decipi', multa continet, et si alios secum sollicitauit ut fugerent, uel res quasdam abstulit.
Moreover, what we said, "how much it was to the purchaser's interest not to be deceived," comprises many things, including if he enticed others to flee with him, or took away certain things.
§19.1.13.3Quid tamen si ignorauit quidem furem esse, adsueuerauit autem bonae frugi et fidum et caro uendidit? uideamus, an ex empto teneatur.
But what if he was indeed ignorant that he was a thief, but assured that he was of good character and faithful, and sold him at a high price? Let us see whether he is liable on the action on purchase.
et putem teneri.
And I think he is liable.
atqui ignorauit: sed non debuit facile quae ignorabat adseuerare.
But yet he was ignorant; however, he ought not easily to have asserted what he was ignorant of.
inter hunc igitur et qui scit praemonere debuit furem esse, hic non debuit facilis esse ad temerariam indicationem.
Therefore, between this man and one who, knowing, ought to have forewarned that he was a thief, there is this difference, that the former ought not to have been easy to make a reckless declaration.
§19.1.13.4Si uenditor dolo fecerit, ut rem pluris uenderet, puta de artificio mentitus est aut de peculio, empti eum iudicio teneri, ut praestaret emptori, quanto pluris seruum emisset, si ita peculiatus esset uel eo artificio instructus.
If the seller acted with deceit in order to sell the thing for more, for instance, if he lied about his skill or about his peculium, he is liable on the action on purchase to make good to the purchaser how much more he would have bought the slave for, if he had been so endowed with peculium or instructed in that skill.
§19.1.13.5Per contrarium quoque idem Iulianus scribit, cum Terentius Victor decessisset relicto herede fratre suo et res quasdam ex hereditate et instrumenta et mancipia Bellicus quidam subtraxisset, quibus subtractis facile, quasi minimo ualeret hereditas, ut sibi ea uenderetur persuasit: an uenditi iudicio teneri possit? et ait Iulianus competere actionem ex uendito in tantum, quanto pluris hereditas ualeret, si hae res subtractae non fuissent.
On the contrary also, the same Julian writes that, when Terentius Victor died leaving his brother as heir, and a certain Bellicus had abstracted some things from the inheritance, both documents and slaves, and, having abstracted them, easily persuaded him to sell it to him, as if the inheritance were worth very little: can he be held liable on the action on sale? And Julian says that the action on sale is available for as much more as the inheritance would have been worth if these things had not been abstracted.
§19.1.13.6Idem Iulianus dolum solere a uenditore praestari etiam in huiusmodi specie ostendit: si, cum uenditor sciret fundum pluribus municipiis legata debere, in tabula quidem conscripserit uni municipio deberi, uerum postea legem consignauerit, si qua tributorum aut uectigalis indictionisue quid nomine aut ad uiae collationem praestare oportet, id emptorem dare facere praestareque oportere, ex empto eum teneri, quasi decepisset emptorem: quae sententia uera est.
The same Julian shows that deceit is usually made good by the seller even in a case of this kind: if, when the seller knew that the land owed legacies to several municipalities, he wrote in the tablet indeed that it was owed to one municipality, but afterwards sealed the term that, if anything must be paid under the head of taxes, customs, or imposts, or for the contribution to road-making, the purchaser must give, do, and make it good, he is held liable on the action on purchase, as if he had deceived the purchaser: which opinion is true.
§19.1.13.7Sed cum in facto proponeretur tutores hoc idem fecisse, qui rem pupillarem uendebant, quaestionis esse ait, an tutorum dolum pupillus praestare debeat.
But when it was proposed in fact that tutors who were selling the property of a pupil had done this very thing, he says that it is a question whether the pupil ought to make good the deceit of the tutors.
et si quidem ipsi tutores uendiderunt, ex empto eos teneri nequaquam dubium est: sed si pupillus auctoribus eis uendidit, in tantum tenetur, in quantum locupletior ex eo factus est, tutoribus in residuum perpetuo condemnandis, quia nec transfertur in pupillum post pubertatem hoc, quod dolo tutorum factum est.
And if indeed the tutors themselves sold it, there is no doubt at all that they are liable on the action on purchase; but if the pupil sold with their authority, he is liable to the extent that he was made richer by it, with the tutors being condemned in perpetuity for the residue, because that which was done by the deceit of the tutors is not transferred to the pupil after puberty.