Joannes Voet.

A contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib online

. (page 15 of 69)
Online LibraryJoannes VoetA contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib → online text (page 15 of 69)
Font size
QR-code for this ebook

so partially resiled from by common consent that the obliga-
tion on one side may be either increased or diminished. Dig. 2.
14. fr. 7. § 6. de pactis, Dig. h. t. fr. 4, Dig. 18. 1. fr. 72 {de
contrail, empt.), — nevertheless, in accordance with the opinion
of Pomponius, ** a sale cannot by pact be resiled from in

• Acc€j)tilatiOf from acceptum ferre (latum) y is an acquittance or
remission of a debt by an imaginarv payment verbally acknowledged, —
when the creditor says * ' I hold the debt as discharged." Hence, to remit
a debt by the creditor entering it in his accounts in the column of payments
was called facer e acceptum. Under the Jus Civile it was only applicable
to the ** verbal" contracts of that system, and was effected by a formal
interrogation and reply in which the debtor put to his creditor the question :
** That which I promised to you, do you hold as if it had been received by
you ? " ; to which the creditor responded, *' I do."

t Id est the solemn obligations of the Boman law contracted verbis,
viz. by certain formal or solemn words of style. The student must not
confoimd this term of Boman Law with the ordinary modem signification
of verbal as opposed to written contracts,

X I interpolate here the word ** implied" because Dig. hi. fr. 5. has
** perinde habeatur, ac si convenisset inter eoSy^ etc. And in Dig, 2. 14. 27.
§9 it is expressly said: "If the acceptilatio was inoperative, there is
considered to have been a tacit pact not to sue."

Digitized by LjOOQIC


respect to [the obligation of] one [only] of the contracting
parties," [that is to say it cannot be so resiled from that one
of the contracting parties shall remain bound by the sale, and
not the other — Tr.]. Dig. h. 1. Clearly, when Purchase,
Hire, and the like contracts which have their foundation in
consent, no longer consist in the mere terms of an agreement,
an obligation still remaining on each party, but a res has already
intervened on one side [Le., some matter been done b}' one of
the parties, on the faith of the contract and referable to it, pro-
ductive of alteration of circumstances, loss, or inconvenience*],
or if the contract has been akeady implemented on one side,
whether by delivery of the thing or payment of the price, there
is nothing to prevent an acceptilation interposed by one party
also affecting the dissolution of the obligation still remaining
on the other. Dig. 46. 4. § tilt, {de acceptiL).\ Compare
Zangerus de exceptionihua. part 3. cap. 4. If a thing which
one has purchased absolutely be again bought by him imder a
condition, Paulus tells us that the last purchase is inept; J Dig^; but I do not think that this is to be taken in the sense
that the sale remains an absolute one, but rather as meaning
that, on the happening of the condition, it is the same purchase
that had originally taken place, inasmuch as after the happening
of the condition nothing is embraced in the second sale which
was not in the first; for there is no reason why a contract
which was originally an absolute one should not be suspended
by a condition, with the mutual consent of the contracting
parties, as Brunnemannus says ad Pand. d. I. 7. Dig. h. t.

§ 3. Although a completed contract of sale is not to
be invalidated (infirmanda) against the will of the other of the
contracting parties, not even under the authority of an imperial
rescript ; § Code h. t. (4. 44) fr. 3 ; nevertheless it may be

♦ Bell's Principles of the Law of Scotland^ § 26.

t Labeo had written : ** If I have given you an acquittance, I am
not dischareed from my obligation to you " ; whereupon Paulus qualifies
this with "Nay : when a contract of Hiring and Letting or Purchase and
Sale has been made by agreement, and has not as yet been acted upon by
either party [iwndum res intercesait'], both parties are Uberated by an
acceptilatioy although it has only proceeded from one side.'* Dig. 46. 4. 23.
And Pothier notes that while Labeo followed the rule of strict law, Paulus
preferred to look to the intention of the contracting parties, which presum-
ably was that one gave the other an acquittance witn the intention that both
parties should be reciprocally discharged from the contract.

X He says *' nihil agitur posterior e emptione" namely, it has no effect,
or in the paraphrase of Brunnemannus *^ posterior irritaJ*"* This author
confesses nis inability to imderstand the prmciple of this text.

§ Because such a rescript must without doubt have been obtained
surreptitiously (suhreptitum)^ and this contract does not admit of locus
poenitentiae, Brunneman. ad Cod. hoc. lor,

C.P. I

Digitized by LjOOQIC


rescinded for various causes : for example, under express provision
of law, as when persons have furtively sold their property in
order to evade public offices; Code h. t. fr. pen.; or a father,
in* case of extreme want, has sold his son ; for the purchaser is
compelled to let the boy go on being offered his price or a slave
being substituted in place of the son. Code 4. 48. fr. 2.
{de patribus qui fiUos suos distrax.). Also under the Aedilitian
Edict a sale may be dissolved on account of some defect (vitium)
or disease [in the subject] by the ** actio redhibitoria," as is
stated in the title de aedilit. edicto (lib, 21. tit. 1). And finally',
and more especially by sentence of a judge on account of
enormous lesion, — namely, lesion exceeding a half of the just
price, — even though intentional fraud may be absent. For
although by natural law it is lawful for contracting parties to
circumvent each other in the price, and a sale made in good
faith ought not to be set aside for a trifling cause or lesion.
Dig. 18. 1. fr. 54 {de contrah. empt.) ; Dig. 4. 4./r. 16. § 4 (de
minor 25. annis), nevertheless, when by reason of enormous
lesion being apparent, the matter itself may be said to involve
fraud **ipsa res in se dolum habet," Dig. 45. 36 {de verb.
oblig.)y* there is room for the remedy provided by the second
lex of this title of the Code {C. 4. 44. 2), under which the
action is not absolutely for rescission of the contract, but
rather, alternatively, in the discretion and election of the party
sued, either for the dissolution of the purchase — the price in
that case having to be returned and the thing sold restored —
or for the rectification of the unfairness of the price by
reducing or increasing it [as the justice of the case may
require] to the true value of the thing sold. Cod. h. 2 ;
Ant. Faber. Cod. lib. 4. tit. 30. defin. 21 ; Grotius Manud.
ad jurispmd. HoU. lib. 3. cap. vlt. in pr. ; Carpzovius dejin.
for. par. 2. constit. 34. defin. 7.\

* The ethically equitable doctrine is laid down by Ulpian as follows : —
after stating that a person who has been induced by artifices to enter
into an obligation, tliouf^h Hable to its fulfilment bv strict "law,** may
avail himseS of the equitable plea, he says *\it is the same even when
there has been no fraud on the part of the stipulator, but the very matter
has 'fraud in itself; for when one sues on such a stipulation he acts
fraudulently in sueing." Dig, vt cit. This is manifestly a iox more com-
prehensive doctrine than that of English equity law which makes
•excessive price a mere badge of fraud, not in suing, biit in the contract
only. We may for illustration take the case where a thing has been sold
far above a fair price, both parties having been deceived as to its real value.
Here the Vendor used no fraud in the contract, but in Roman Law it
would be held a fraud to take advantage of such an error by a suit.

t This rehef on accoimt of damage exceeding the half, enacted by
the rescript of the Emperors Diocletian and Maxunian, partakes of the
nature of the Restitutio in integrum. The rescript on which it is founded

Digitized by LjOOQIC


§ 4. The form of action to be adopted in this case is not
very clear, for some would have it that it was the ** ex lege
condictio,"* as if a new action had been introduced by the
above cited fr, 2. (flode h, t.) without however any express
name having been given to it. Arg. Dig. 13. 2./r. 1 ; while
others consider that the extraordinary petition for restitution
was necessary, t and this is approved and firmly established in
practice according to our usages. Hugo Grotius Manud. ad
jurisprud. HoU. lib. 4. tit. 30. defin. 21 ; Groenewegen ad
Code h. 2. But it may be more accurately said that,
according to the principles of the Roman Law in this matter,
the form of action was "ex empto" or "ex vendito" [action on
the contract of purchase or of sale]. For besides that there

is thus given in Justinian's Code: **Ifyou or your father have sold
A thing for a minus pretium [i.e., below its value] it is hiunane [right]
that you should either get back the land sold, by aid of the authoril^
■of the judge, on restoring the price to the purchaser: or if the purchaser
in his option prefers it, that you should receive the difference between
the just price and what was paid. It is considered a minus pretium
when less than half of the true value has been paid." Code 4. 44.
fr. 2.

* Ex lege condictio — an action on a statute ; a personal action
arising from a civil obligation founded on a new statute (that is to say,
one enacted subsequent to the statute of the XII. Tables), and having no
special name or form. Lib. 13. tit, 2. § 1. It is thus spoken of in the
Digest : ^^ If an obligation has been created by a new statute, which has
not provided for the Kind of action to be adopted in sueing on it, the suit
must be ex %c," — i".p., by special action on the statute itself. Dig,
13. 2. 1.

t ** Extraordinary petition." — ^While ^^ condidioiies" were actions of
strict law arising on unilateral obligations (Wamkoenig's Imt, § 1057),
*' extraordinary actions," on the other hand, were those in which an
extraordinary remedy was given, i.e., one not provided for by the jus civile ,
and in which the procedure differed from the ordinary course, more
especially in this that the formulae, or civil law forms of action, were
not used, and the magistrate not only inquired into the matter summarily,
but, instead of contenting himself with settling the pleadings and issues
and then referring these to be tried by Judices as in the ordinaiy
course of procedure, took the whole decision of the cause on himself,
deciding by the rules of equity, instead of by rigid and strict principles of
the old jus civile^ and did reciproccU justice between the parties. This
faculty of doing reciprocal and complete justice in a cause, is marked in
the respective names applied to actions *'stricti juris" or "stricti judicii,"
and those C6illed ^* bonae fidei" or "arbitrariae." In the time of Diocletian,
one of the imperial authors of the rescript before us, nearly all actions
were ** extraordinary," and in the time of Justinian all. Compare
Wamkoenig Inst. Book IV. tit, 4. et tit 7. §§ 1056 et seq, and 1084. etseq, ;
and Voet. com, ad. pand, lib, 4. tit, 1. § 1. 2. ** Though the more correct
rule, having respect to Eoman Law, required the remedy or relief from
enormous lesion to be by action on the contract itself, it has become the
practice in our courts to take advantage of it by way of restitutio in
integrum.*' Lorenz* Vanderkeessel. Thea, 901.

I 2

Digitized by LjOOQIC


is no novelty in a "utilis actio ex empto " to set aside a sale ;
Dig. 19. 1. fr. 11. § 6. (de act. empti.) ; and for rectifying
inequality of the price when the thing purchased has any vice
or patent disease or defect; Dig. 21. 1. ^penult, in Jin et
§ 2. 3. 4 (de aedilit. edict.) ; it is, moreover , evident that
before the said law/r. 2. Code h. t. (the authors of which, the
Emperors Diocletian and Maximian, reigned after the death of
the illustrious jurisconsults of the Pandects), enormous lesion
was not only reprobated, but remedies were afforded against it.
Dig. 23. 3./r. 6 . § vlt.* (dejure dotium); Dig, 17. 2. Jr. 78. 79
(pro socio). For any manifest inequity was to be rectified ** by
a judicum bonae Jldeiy**\ as Paulus says in the fr. 79. just
cited ; and therefore proof of grave lesion might be given in
any of the actions **pro socio," "ex empto," " vendito," and
the like, in order that the judge, estimating, in accordance
with the nature of actions bonae Jidei. how much, even beyond
the convention of parties, is due to the Plaintiff in right and
equity, might restore that equality which had been neglected
in the making of the contract; not to say, moreover, that already
in the time of Ulpian the same choice had been allowed to a
person who possesses a thing at too low a valuation [e.g., a
thing given to a husband as dowry, for the appraised value
of which he had to account, Tr.], either to restore the
thing itself or make up its true value. Dig. 23. 3. Jr. 12. § 1
(de jure Dotium). Consequently in the said lex 2. Code h. t^
nothing new is introduced except the definition of what
constitutes enormous lesion — viz., a price which exceeds the
fair amount by a half, this having been previously left to the
discretion of the judge. And it is on this ground, I opine,
that although by our usages the practice is to pray for
restitution, as already said, nevertheless liberty to sue for
restitution is not limited to the ordinary term of four yeai-s,
but, after the example of the personsd action ** ex empto,"
continues for full thirty years. Sande decia. Frisc. lib. 3. tit. 4^
dejin. 11 ; Grotius Manud. ad jurisprud. HoU. lib. 3. cap. vlt.
n, 16. 17 ; Ant. Matthaeus de auctum. lib. 1. cap, 16. num. 68.

* The words of the golden rule of the Roman Law, contained in this
text of Pomponius, are quia bono et aequo nan conveniat^ aut lucrari aliqurm
cu/m damno alteriuSy aut damnum sentire per alterius lucrum^ ** for, IT is

The same maxim is laid down in terser terms in Diy, 12. 6. 14. : — ^^Naiura


t An action of that class in which the praetor administered equity
and adjusted the mutual daims of the parties. See the last note but
one, p. 115.

Digitized by LjOOQIC


in fine; though Perezius Code h. t. num. tdt. states that other
periods [of prescription] are fixed elsewhere.*

§ 6. There is no distinction between a vendor and a
purchaser in respect to this remedy against lesion. t For
although in the said fr. 2. of the Cod. h. t. mention is only
made of an injured vendor, yet the same reason of equity
applies to the case of a purchaser to prevent him from
sustaining enormous lesion ; seeing that the obligation of each
is equal, and equally a principal one, and results from a
contract of the class called bonaefidei ; and indulgence is rather
to be shown to a purchaser who errs in respect to the price
than to the vendor who has the ownership ; for eveiy one
may and ought rather to know the 'value of his own property
than of that of other people. Cod. h. t. fr. 15 ; Arg. Cod. 40.
5./r. 24. § 12 {fidei commiss. lihert.) ; Fachineus controv. lib. 2,
<r. 16 ; Pinellus ad. I, 2. Cod. de rescind, vend, part 1. cap. 2.
num. 1 ; Donellus ad. I. 2. Cod. de rescind, vendit. num. 17 ;
Carpzovius Defin. For. part 2. constit. 34. defin. 8 ; Resp.
Jurisc. HoU. part 3. vol. 1. consil. 14. A purchaser is
considered to have suffered lesion beyond a half, not merely
when (for example) he has bought a thing worth ten gold
pieces for twenty- one, but also when he has bought it for
sixteen [i.e., not only when he pays more than double the
value, but when he pays more than a half above the real
value — Tr.]. For, as there is lesion whenever there is a
want of just proportion between the price and the commodity
sold, it cannot be denied that just as a vendor is presumed
to suffer lesion exceeding a half, if not a half of the real value
be paid, and therefore when paid less than five gold pieces for
a tiling the just price of which is ten, — so also a purchaser
must be said to be injured if he pays the vendor of a thing
more than five gold pieces above its true value of ten. It is
clear law that in the contract of purchase the respective
obligations of vendor and purchaser are equal, and that the

• And 80 also under the Law of Holland the right to relief on the
ground of fraud or fear is not prescribed in four years but is ** perpetual " —
i.e.y endures for 30 years ; and relief on the ^und of minority prescribes
in four years, but a minor as well as a major may be relieved on the
groimd of enormous wrong at any time within 30 years. Lorenz* Vander-
keessel Thee, 881. and 900 ; Code 2. 22. 4 ; l>ig. 4. 3. 28.

t This has been questioned, and it has been said that there is no
authority for the doctrine that the buyer is equally entitled to rescind
the contract when he has suffered lesion beyond one half of the price.
Mackenzie's Roman Law, p. 220. citing Maynz § 297. Puchta also takes the
same view. Maynz § 214 (not 297) rejects very positively the view here
taken by Voet.

Digitized by LjOOQIC


vendor, on the one hand, ought to acquire ten aurei by way
of price, in the stead of a thing worth ten aurei which is lost
to his patrimony, and that the purchaser who on the other
hand diminishes his patrimony by the payment of ten aurei
ought to have the worth of ten in the value of the thing sold ;
since therefore each is bound to the other for the same
quantity, either in price or in commodity, it would be
inequitable that the one, any more than the other, should
be damnified without legal remedy or rectification of the
inequality ; but this would happen if a vendor who receives
less than five aurei for a thing worth ten might have redress,
and not also a purchaser who pays more than five above
the true value of ten aurei, and thus equally suffers equal
lesion in respect to quantit}' as the vendor. Further, as the
remedy under this law also holds in Baiter, as will be here-
after shown, barter being similar to purchase, wherefore as
the same amount of lesion on the side of either party to that
contract affords scope for the aid of this remedy, so also there
is no reason why in the contract of purchase the same amount
of lesion should not give the right of invoking this remedy
equally to the purchaser as to the vendor. Most authors admit
that this was the more common opinion among the ancients,
though Fachineus Contrav. lib. 2. cap. 16; Pinellus ad 1. 2. Cod.
de rescind, vend, part 1. cap. 2. num. 4 et seq. ; Mysingerus
cent. 4. obsoT. 73 ; Zoesius ad Pand. h. t. num. 6 ; Donellus
ad. I. 2. Cod, h. t. num. 17. dissent from it ; and that this
view is favoured by the gloss and most received in the Courts
is testified by Covarruv. variar. resolut. lib. 2. cap. 8. num. 8 ;
Responsa Jurisc. Holl. part 3. vol. I. consil. 14. That the
remedy is competent to the heirs of both vendor and purchaser,
although not exercised by the deceased, can hardly be doubted
if one considers that an heir has the same rights and powers
as the defunct. Dig. 50. 17. 59 {de reg. juris). For be it that
3'ou allow here the [competency of the] actio ex empto,* this
action, according to the principles of law, is given both to and
against heirs ; or [if you contend] that the aid of Restitutio
must be prayed for, then that this is not to be denied to the
heirs of minors, if sued for on the ground of minority, appears
from Dig. 4. 4. fr. 18. § vlt. fr. 19 {de minor. 25. annis) ;
Gothofredus in not. ad L 2. Cod. h. t. And because a creditor
in selling a pledge is considered to be in the place of the
debtor, so that the debtor can sue the purchaser even for
restitution of the thing itself under pacts annexed by the
creditor to the sale of the pledge, just as if he himself had sold

* Eeferring to the discussion in § 4.

Digitized by LjOOQIC


it and a pact been annexed providing for the restitution of the
thing on refund of the price ; Dig. 20. 5./r. 7. § 1 (de distract,
pign. et hypoth.) ; Dig, 13. 7-/r. 18 {de pignoi at,) ; so also the
debtor himself has a right to this remedy [of rescission on the
ground of enormous lesion]. Pinellus ad L 2. Cod. de rescind,
vend, part 2. cap. 2. num. 1 et seq.

§ 6. A vendor or purchaser has this remedy of the lex 2.
against the purchaser or vendor with whom he has contracted,
but not against a third party to whom the purchaser may have
again alienated the thing ; for this is a personal action arising
from contract, although in practice concurrent* with the
** restitutio in integrum." Gomezius rar. resol. torn. 2. cap. 2.
n. 22. in med. ; unless the purchaser be an mdigent person
and it can be proved that after having bought the thing below
its value he fraudulently sold it again in order to defraud the
vendor, also for less than it was worth, and that the second
purchaser was a participator in the fraud. Arg. Cod. 8. 30. fr. 1.
{sivenditopign. agatur)\Dig. 17. l./r.8. § l{Mandati)\ Fachineus
Controv. lib. 2. cap. 18 ; Covarruvias Var. resol. lib. 2. cap. 3.
num. 10; Respons. Jurisc. HoU. part 5. consil. 172. But even
if the second purchaser was free from complicity in the fraud,
nevertheless it would be unjust that he should be a gainer by
the first vendor's loss, and therefore equity demands that the
first vendor should have redress against the second purchaser,
at all events through the medium of ** restitutio in integrum,'*
when the first purchaser is insolvent. Arg. Dig. 44. fr. 13. § 14. /r. 15 {de minor. 25. annis); Cod. 8. 30. fr. 3 (si
vedito pign. agatwr). Nor perhaps would it be wrong to
concede th^t the injured first vendor may have recourse to the
** actio Pauliana " ; t for the first purchaser, in selling the
thing again for a low price in fraud of the vendor, may be
considered to have made a gift to the second purchaser, to the
extent to which he has sold it to him for less than the true ,
value ; but when things are gifted in fraud of creditors, fraud
on the part of the recipient is not necessar}' to support the
** actio Pauliana " ; and, when both parties are in the same
case, the}' who sue to avoid a loss are in a better position than
those who sue to snatch a profit. Dig. 42* tit. 8. fr. 6. § 11
{quae in fraud cred.fa^ta sunt ut restit.) ; compare Tii-aquellus
ad 8. de revoc. donat. (8. 56) r. ** revertatur " num. 329.
Covarruvias d. lib. 2. cap. 3. num. 10; Berlichius decis. 157.

* When more than one form of action is available at the same time
they are said to be ** concurrent."

t See Lib, 42. tit, 4 {Quae in fraudem creditorum facta stunt, ut

Digitized by LjOOQIC


And the texts cited against this view by Pinellus ad I. 2.
Cod. de rescind, vend. (4. 44) part 2. cap. 1. num. 82. and by
Fachineus d. lib. 2. cap. 18. are not opposed to what has just
been said; for although according to the rescript in lex 1.
Cod. 8. 30 {si vend. pign. agatur), rescission may be demanded
of a fraudulent sale of a pledge made by a creditor, when there
has concurrently been fraud on the part of the purchaser, it is
not, however, denied that rescission is to be allowed if the
purchaser has not been in fraud ; and so we must supply from
lex 3. of the same title of the Code which allows rescission
generally, the words ** if the selling creditor is insolvent,"
which are wanting in lex 1. Much less can the passage in
Cod. 8. 54:. fr. 15 (de donat.) be urged against our argument;
for that simply says that the burden of a debt falls not on a
donee but on the donor's heir, and does not deny that a gift
made in fraud of creditors may be set aside, when the donor is
by reason thereof insolvent.

§ 7. The proof of enormous lesion lies on the plaintiff,
for it is a question of fact ; and it is not to be presumed in
contracts obligatory on both parties [bilateral contracts — Tr.].
Further, regard is to be had to what would have been the just
price at the time of the sale, in the place where it was made ;
and not to the value of the commodity at the time of action ;
Cod. h. t, fr. 6. in fine ; otherwise a host of sales would be
invalidated, seeing that the value of things varies in different
places ; Dig. 1. 34. fr. 3 {de eo quod certo loco.) ; and prices rise

Online LibraryJoannes VoetA contribution to an English translation of Voet's Commentary on the pandets, comprising all the titles on purchase and sale--letting and hiring--mortgages--evictions--warranty--and allied subjects; being lib → online text (page 15 of 69)