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

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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 23 of 69)
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verb, oblig.), where Paulus says that a verbal obligation is
invalid whereby one promises to pay a hundred au/rei "if he
pleases," or " when he pleases," if indeed he has not during his
lifetime declared his intention to be bound [at some time or

* Utiliter y i.e., in analogy to the Common Law action.

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THE vendor's action. 183

from a particular time*] whence it might seem to follow tliat in
our case also the purchase is invalid if the purchaser has not
by going to Rome declared that he intends the price to be due
during his life. For very different is the case where the whole
sale, stipulation, or other like convention [and not merely the
time for its implement, Tr.] is made to depend on the discre-
tion of him who is to be the debtor,! in which case just as the
** stipulation" is invalid according to the said/?*. 46. § 2 and 3.
so also would a purchase be considere4 imperfect, Dig. 18. 1.
fr. 35. § 1 (de contrah, emt.) ; but it is otherwise when the sale
was an absolute one, though its implement is postponed to a

* * * >8i ipse vivu8 non constituerit se velle obliyatum esse.*^ — The rendering
needs further explanation to convey the force of the expression, for
conatituere jyecuniam and pecunia constituta are technical expressions
specially appHed to the case where the debtor for a sum due, but not yet
payable, or for which no date of payment has been fixed, agrees to
discharge it at some earlier or definite date, a promise which gives place
for the ** actio de constituta pecunia " or " consb'toria,*' if the debtor fail
to carry out this agreement. And this obligation of cwistitutum may be
entered into either for our own debt or for another person's. See Dig.
lib, 13. ttt. 5. and our Author's commentary thereon, n. 1 ; Wamkoenig's
Inst. § 944 ; Heineccius Elementa ad Pandy part 3. § 94 et seq. It is a
species of guarantee, and is so called by writers. Vid, Posters Qaim^ &c.
It was also valuable as a means for converting a natural or imperfect
obli^tion into one binding in law, as for ratifying a debt contracted
dunng minority, or one barred by prescription, and the like.

t Thus a stipulation by a person to pay or do a thing if he choosesy is
wholly void, because he cannot be compelled to do or pay imless he
chooses. It is different if he stipulates to pay when he chooses ; because
here there is an absolute agreement to pay, and only the date of pajTnent
is left to his discretion. So long as he Hves the date of payment is in his
discretion and he cannot be sued; but as that discretion necessarily
terminates with his life, his heir may be sued at any time after his death.
If however it clearly appears that he has ** constituted" — i.e., fixed — ^a
particular date during his life, the debt would of course become exigible
then : this would be the contract of constitutum. And we may conceive
a case in which the circumstances would infer a promise to pay during
life and on an occasion to be determined by a Bonus Vir or Judge. A
curious case of this nature occurred in the District Court of Colombo
(Ceylon), Byrde v. Maingey. There the debtor had executed a bond for a
large sum borrowed by him, which he bound himself to repay * * at con-
venience," and this was held {firstly) to infer an absolute debt and
promise to repay it; {secondly) that the word ** convenient" did not
mean *' when defendant pleased," but had the same meaning as in the
maxim of the Stoics, " Vivere convenienter naturae," namely at a time
**fit," '* suitable," '* congruous to the defendant's circumstances";
{thirdly^ that this ** fitness," or '* congruity to the defendant's circum-
stances ' was a question of fact for determination by the Court. On
review of the circumstances under which the bond was given, and the
defendant's fortune and position at the time of suit, he was condemned
to pay the claim (£1000). On the question more immediately dealt with
in the text, see Pothier's Pandect. 45. 1. n. 99. in notis.

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time to be defined at the discretion and pleasure of the pur-
chaser, which is our case, and in which only the execution of
the obligation to pay the price which arises from the contract
itself was suspended during the discretion of the purchaser,
which [personal] discretion ceasing by death, the implement of
the obligation can no longer be suspended by the sole will of
the purchaser. Dig. 19. 2./r. 4 {locati) ; Sande Decis. Frisic.
lib, 3. tit. defin. 2.

§ 18. This action has for its object the payment of the
price by the purchaser, and his making the coin so paid the
recipient's by right of ownership (jure dominii), although the
vendor had sold another person's propert}'^, arg. Dig. h. t. 11.
§ 2 ; — also the restitution of what has been expended by the
vendor, after the sale, on the thing purchased, including even
the burial expenses of a slave who has died after his sale and
before delivery. Dig. h. t. fr. 13. § 22 ; Cod. h. t. (4. 49) fr.
idt.y Arg. 18. 6./r. 1. § 8 (de peric. et comniod. rei vend.) ; and
also the cost of the food of a slave or animal that has been sold
but not delivered if the non-delivery was due to the purchaser.
Dig, h. t. fr. 38. § 1. A further object of this action is that
the purchaser should make good everything which he is re-
sponsible for (quae praestanda sunt), either under a specially
annexed pact or from the nature of the conti'act of purchase ;
and especially interest arising from default in payment (ex
mora) ; for it is equitable that when the purchaser has the
enjojTnent of the thing, the vendor should have interest [on the
price]. Cod. h. t. (4. 49) /r. 5 ; Dig, h, 13. § 20. 21 ; and
this is also sanctioned by our usages (under which interest
would otherwise hardly be due on account of an extrajudicial*
default, as stated in the title on Interest, Lib. 22. 1), in the
case of sales of urban and rural lands, from the time these were
delivered to the purchaser or — when it has been agreed that
the price is to be paid by yearly instalments — from the date
when each instalment became due, Arg. Dig. 12. 1. fr. 40 in
med. (de reb. creditis) ; Hugo Grotius Manud. ad Jurisprnd.
Holl. lib. 3. cap. 15. nitvi. 4. 5 ; Responsa Jurisc. HoU. part 1.
I'onsU. 33 in fine ; Appendix of decisions to the Responsa
Jurisc. Holl. part 3. vol. 1. pag. 41. in pr. ; unless it has been
expressly arranged that interest should be paid also on those
instalments which ai-e subsequently to become due. Arg. Dig.
88. 1. fr. 3. § ult. Neither will the purchaser be discharged
from the obligation to pay interest, by the vendor having given

* Ex mord extrajudicial i : i.e., as distinguished from default or delay
in satisfying a judicial decree.

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a receipt [for the price] in anticipation of payment, or even by
the Secretary of the Court {graphiarius*) having by way of
favour acknowledged the deposit with him of the money due
for a thing sold by public auction for cash down, when in truth
there had been no payment, arg. Cod, 4. 22 {plus valere quod
agitwr quam quod simviate concipitur), especially if you con-
sider that neither are Court secretaries considered vested with
the right of conferring favours, being only bare custodians of
the money consigned ; nor is it meet that a fraud on the law
of salet should be committed by the purchaser with impunity.
Ant. Matthaeus de auction, lib, 1. cap, 18. n. 5. Nor does it
make to the contrary that the plea of " non numerata pecunia "
cannot be opposed by public functionaries to receipts nor to
acknowledgments of pecuniary deposits, Cod. 4. 30. fr, 14. § 1
{de non num, pecunia) ^ since this holds indeed as between the
actual persons who have manufactured such receipts ; but such
artifices ought not to prejudice those whom it concerns that
nothing be dissimulated by clandestine and private frauds,
[viz., third persons for whose benefit the thing or money was
deposited, Tr.]. Arg, tot, tit. Dig, 42. 8 {quae in fraudem
<:r edit, facta aunt ut restit.).

§ 19. A purchaser does not avoid liability for interest
when he has refused to pay the price on account of eviction
of the thing sold and delivered being imminent [i.e., of the
imminency of its being recovered under judicial process by
another person having a better right to it, J Tr.] ; nor because
the vendor would not accept the price when offered in a
legitimate manner; for in these cases "consignation ** should
be made of it,§ inasmuch as, and more especially by our
usages, interest on the price of things sold is allowed not so
much in consideration of personal default {mora ex persona)
after demand, as rather by reason either of agreement or oimora
ex re ; || — in order that a purchaser may not be simultaneously

* Oraphiarius : this word will not be found in lexicons : but see Voet
ad Pawl. 5. 1. 61, ami jtoet 20. 4. 11. § 14, and Matthaeus de auction. 1,
13. 5, where the term is aduarvis eeu grapheus ; and further down puhlicus

t Legi venditionis; quaere "conditions (or terms) of the sale; " but in
Matthaeus Cut cit.) " fraudem fecisse legihus aut statutia.''

X See tne meaning of the term ** eviction " in Civil Law in the note,
to § 2. p. 163, ante, which will explain the use of the expression " eviction
of" instead of ** eviction from " a thing.

§ Le.y it should be sealed up, deposited, and registered in a public

II Mora ex persona is default or delay made after demand ; mora ex re
the same where the demand though not actually made is presumed by

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lucrified by both the interest of the price and the enjoy-
ment of the fruits. Cod. h. t. 4. 49. fr. 5 ; Dig. h. t. fr. 13.
§ 20. 21. The running of such interest is not arrested by
a mere tender [of the principal sum], but ** consignation "
[official deposit] is necessary, Cod. 4. 32. fr. 19 {de usuris) ;
arg. Dig. 22. 1. fr. 1. § nit. fr. 7 (de usuris) ; and therefore
although the purchaser cannot be compelled to pay the price
to a vendor who does not give sufficient sureties against
eviction, Dig. 18. 6./r. ult. § 1 (de peyic. et. commod. rei vend.),
nevertheless he cannot retain it for his own use, but [in this
case also] consignation and deposit must be made. Arg. Dig.
22. 1. fr. 18. § 1 {de tmiris); Joh. a Sande decis Frisic. lib. 3.
tit. 14. defin. 8. and many others there cited ; Facchineus
controv. lib. 2. cap. 32. qtiaest. 2 ; Carpzovius defin. for. part
2. constit. 34. defin. 38 ; Berlichus part 2. conclus, pract. 38.
7iiim. 15.

§ 20. The vendor does not, however, recover in this action
in addition to interest the whole that he might have obtained
but for the default [in payment of the price] : as, for example,
if he were a merchant, and by payment of the price would
have derived greater profit by trading [with the money] than
from the interest. Dig. 18. 6. fr. vlt. (de peric. et comTnod. rei
rend.). For neither can a purchaser, on the ground of delay
in the delivery of the thing sold, claim the value of the profit
which he might have obtained by trade if the delivery had
been made at the proper time, Dig. h. t. fr. 21. § 3.* .The
text in Dig. 13. 4. fr. 2. § idt. (de eo qwod certo loco) is not
opposed to this, for that refers to the particular case of money
exported which is to be paid at a certain place for the purpose
of trade (*' frajectitia pecunia.'').

§ 21. Similarly, a vendor cannot on account of non-
payment of the price claim a dissolution of the sale and the
restitution of a thing already transferred by delivery, but must

law ; for example (to take first the most obvious case) a thief is always
in mora ; and so is a debtor to a pupil or the Fisc ; and so is a purchaser
who enjoys the produce of what he has bought, before he has paid the
prioe. The subject is discussed in Voet ad Pand. lib. 22. tit. 1. § 24. et aeq.
\de tiauria et/ruct. &c.).

* On the very important subject of the ** measure of damages," and
especially the distinction between the debtor's liability for a certain and
for an uncertain amount, see Lib. 21. tit. 2. § 27 (cfe evictionibus, <fcc.) and
Lib. 45. tit. 1. num. 9. et eeqq. {de verb, oblig.). Compare also § 14. ante^
which deals with the cases in which a party is liaole for the id quod
ivteresty and the limitation put by Justinian on the amount of this in the
Cod. lib. 7. tit. 47.

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rather sue for implement of the sale, Cod. 8. 82. Jr. 12 : unless
it was expressly agreed from the first that he should be at
liberty to withdraw from it in the event of delay being made
in its implement, Cod. h. t. (4. 49) /r. 6. And the imperial
rescript in Cod. 4. 64. fr. 6 (de pactis inter emt. et rend.) may
be taken as applying to the case in which it has been so
expressly agreed, if ** conrenit " be there read instead of
" conveniat,'' as suggested by CI. D. Noodt, probabil. lib. 4.
cap. 2. Though also it may not inaptly be said, that retaining
the present reading the said lex may be understood of an
" innominate '* contract and of the [personal action styled]
condictio causa data caivsa non secuta* thence arising. For
there Rimnlus (to whom the rescript was directed) had sold a
land to Titius for a low price in contemplation of a certain
arrangement had between them, and therefore with a view to
Titius reciprocally doing or rendering something besides the
low price mentioned in the agreement ; but as Titius had not
on his side fulfilled this innominate contract, the Emperors
say that Kimulus should not be thereby defrauded, " quando
non impleta pratnissi fide dominii'* tra/nslati ^*ju8 in siuim
causani reveHi conveniat^' the meaning of which is that "the
promise not having been fulfilled, and so the consideration on
account of which the thing was sold and given for an insufficient
price having failed, it is proper or equitable that the jiLS dominii
(ownership) ghould revert to its former position,'* and return
to Bimulus, namely, on his instituting the condictio coma data
causa non secuta against Titius who had failed to fulfil his
promise ; which condictio [or personal action] arises not from
a true contract but from a quasi-contract, as has been already
said in the title de condict. causa data {lib. 12. tit. 4). And
Urns the case given in this 6th lex nearly coincides with the
one in Dig. h. 6. § 1, where Pomponius saj's : " If I have
sold you a block of buildings in consideration of a certain sum
and of your agreeing to repair another block of mine, I can
sue you ex rendito to make the repairs.*' It cannot be rejoined
that from the very circumstance that Pomponius in this lex
concedes an action ex empto for the repair of the buildings, it
necessarily follows that the agreement must be referred, not

♦ The action grounded on failure of consideration {Lib. 12. tit, 4), or
rather of the reciprocal causa y for the word causa is not exactly equivalent
to the technical sense in which the word ** consideration " is used in
English Law. "Innominate" contracts were so called because in the
ancient Jus Civile they had no special designation, and in it there were
no forms of action prescribed for or adapted to them. The history of the
actions to enforce them is very clearly given by Maj-nz {Cours de Droit
Rmmin, § 243). See further p)*^ Lib, 19. tit, 5. § 1.

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to the class of innominate contracts, but to purchjwe, and that
therefore the lex 6 of the Cod. 4. 58 (de jpact. inter empt. et.
vend.) would be wrongly taken in such a sense as if not
purchase but an innominate contract was there suggested.
For as in solving the question whether a transaction is to be
considered Purchase or Barter, when on the one side money
is given and on the other side partly money and partly some-
thing else, we have, in case of doubt, to consider whether the
money or the other things predominate (for in the one case it
is said to be purchase, and in the other exchange) — so the
same principle must also be applied here. Thus, on an agree-
ment that on the one side a thing is to be delivered, and on
the other side money to be paid and also some act at the same
time to be done, — if the value of the act to be done, thus
coupled with the giving of money, is worth more than the
money itself, it will be an innominate contract, taking this
name fi'om the predominant feature, just as a contract would
be innominate when on one side only an act of repairing or
the like has to be performed, according to Pomponius and
Neratius in D^. h. t d. fr. 6. § 1 ; Dig. 19. 5. fr. 6 (de
praescript. verbis) ; and that the lex 6 of the Code 4. 58 (de
pact, inter emt. et. vend.) should be taken as referring to that
case, may be sufficiently inferred from this, that there the
farm is not stated to be sold but " transferred *' to another
"for an inadequate price'' ''in contemplation of a certain matter
had between the contracting parties ; " but a price must without
doubt be considered ** inadequate" when it is less than half.
Arg. Cod. 4. 44. fr. 2 {de rescind, vend.). Since therefore on
that account the value of the act to be performed predominated,
and exceeded the inadequate price, it cannot be considered
otherwise than as the innominate contract. Do ut facias y ** I
give that you may do.*' On the other hand, if the value paid
was more than the value of the act to be implemented and
coupled with it, so that money predominated, such an agree*
ment will rather be considered as a purchase than a species of
innominate contract, and you would rightly accept as referring
to such a case the said text in Dig. fe. t. /r. 6. § 1, where it is
not simply said that a block of buildings is transferred to
another, but that it is sold, and that not for any inadequate
price but simply for ** a certain sum of money," and the act
coupled therewith is of no very sumptuous character but only
the repair of another block, the cost of wliich repairs must
generally to a moderate extent be borne by a usufructuary,
or by the husband in case of dowry -property, or other like
persons, and has not to be refunded to them at the termination
of the usufruct or mamage, &c. Arg. Dig. 7. 1. § 7 (de

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umfnLctu et quemad. qnis titat,) ; Dig, 25. 1. /;*. 12. § pen^
{de impensis in rem. dot, factis) ; Dig. 24. 8. //*. 7. § ulU
{soluto matrimonio).

§ 22. As it is common by our usages for lands to be sold
for a sum payable in instalments at the end of one, two, or
three years, and — the first instalment being paid down —
solemnly transfeiTed to the purchaser by delivery before the
local tribunal, but mortgaged for the balance of the price at
the very time of delivery* (in which case the instruments of
mortgage are called casting brieren, and the money due existing
penningen), Grotius Mannd. ad Jiirispi', Holl, lib, 3. cap, 14.
n, 66. 57 ; — whence it may be doubted whether when the first
purchaser has sold the land to a second purchaser for a price
to be paid by certain instalments, and has solemnly delivered
it before the local tribunal, mortgaged for the residue of the
price which is to be paid piecemeal at stated times, but while
one or other of these instalments is overdue, the second pur-
chaser has again sold the same land to a third party for a price
also to be paid by three yearly instalments ; — it may I say be
doubted whether in such a case the first vendor is bound to
delay exaction of the instalments which have already become
payable [to him], until the instalments of the purchase money on
the second sale have also become payable. But as res inter alios
acta — the contracts of third parties — do not prejudice others,
and the first purchaser could not to the prejudice of the vendor
effectually deliver the thing to the second purchaser on any
other terms than those by which the first vendor meant that
it should be transferred to the first purchaser, it follows that
the first vendor can rightly sue for immediate payment of that
part of the price which is already due and payable, or may
cause the land to be sold by public auction under decree, as
subject to his mortgage ; unless the second purchaser comes
forward and tenders immediate payment of what might be sued
for ; and the intermediate interest for the period during which
he (the second purchaser) was entitled to delay payment [to
his vendor] is, on account of his present payment, to be
imputed in part discharge of the price to be paid to the second

§ 28. With respect to the question whether the purchaser
or the vendor must first implement [his part ofj the contract,

♦ Viz., simul et semel. See Menzies* Cape Reports v, 1. p, 318. re
insolvent estate of BuisstunCf as to the preference enjoyed by these ** Knsting
Brieven ** or mortgages for purchase money.

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tlie rule seems to be that whoever sues, whether purcliaser or
vendor, ought first to fulfil and make good on his side all that
he is bound to do under it, lest otherwise he should be repelled
by the defendant's pleading that the plaintiff had not yet
fulfilled his part of the contract, Dig. h, 13. § 8./r. 25 ;
Dig. -21. 1. fr. 26. § vlt, fr. 57 {de Aedil act.) ; Cod. 8. 45.
fr. 5 in Jin. {de eviction.) ; Dig. 18. l./r. 78. § pen. {decontrah.
empt.) ; Zangerus de exception, part 3. caj). 22. 7ium. 6. 7 ;
Gratianus discept. forens. cap. 325. inpr.; Andr. Gayl. lib. 2.
observat. 17 ; Resp. Jurisc. Holl. lib. 3. cap. 15. num. 8, and
others there cited. The burden of proof, however, on the
plea of nonfulfilment of the contract on the part of the plaintiff,
does not lie on the defendant who takes the exception, but
rather on the plaintiff himself, who, suing as on an imple-
mented contract, must prove that it has been implemented [by
him] ; for although it is ordinarily true that ** the defendant
becomes plaintiff in exception " [i.e., when pleading those
defences which are called exceptiones], and that tlie burden of
proving the truth of an "exception ''lies on him (the defendant),
Dig. 44. l./r. 1 {de exceptionibtis, dtc.) ; Cod. 8. 36. /r. 9 {de
exception.), yet this does not hold here ; both because the
whole basis of the action is the plaintiff's own fulfilment of the
contract on his side, so that he is as much bound to show this
fulfilment when it is denied by the opponent, as to prove the
contract itself, if the defendant denies that (as to wluch proof
of purchase see Mascardus canclus. 1409) ; — and also because a
defendant, by this exception, makes a simple denial of a fact
[i.e., alleges a negative] which from the nature of things cannot
be proved. Cod. 4. 19. fr. 28 {de probation.) ; Cod. 4. 30.
fr. 10 in fine {de non numerata pecunia) ; Mascardus de
probation, conchas. 892 ; Zangerus d. part 3. cap. 22 ;
Carpzovius defin. for. part 1. constit. 10. defin. 18. Plainly,
during whatever period of the action the exception that the
plaintiff had not fulfilled his contract is advanced, it is open
to the latter to offer immediate fulfilment, and thus to render
his claim eflficacious which at first seemed to be in some danger,
Arg. Dig. 13. 7. fr. 9. § tUt. {de pignorat. act.) ; Gratianus
discept. for. cap. 825. num. 10 ; Menochius de arbitrar. jud.
lib. 1. qtmest. 16. num. 6 ; Tiraquellus de retract, gentil. § 1.
gloss. 18. num. 18. If neither of the contracting parties will
trust the other, nothing else remains but for both the thing
sold (if it be a moveable) and the promised price to be seques-
trated, and for the depositary to deliver the price to the vendor
and the thing to the purchaser. Dig. 46. 3. fr. 39 in fine {de
solution.) ; or that both parties give adequate security for
fulfilment of the contract. Arg. Dig. 21. 1. fr. 26. de Aedil.

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edict ; Groenewegen ad Grotii ManiuL Jurisprud, HolL lib. 3.
cap. 16. ru 8 in Jfine.

[As subjects connected with the foregoing titles on Purchase and
Sale though dissevered from them in the arrangement of the Digest, it
may be convenient to make the following references here to subsequent
titles. For the contract of Aestimatum, whereby a thing is given to be
sold at not less than a certain price or to be returned intact, see UK 19.
tit, 3 {De Aestimatoria) \ — for that of BARTER, Lib, 19. tit. 4 {De

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 23 of 69)