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BEBAIO´SEOS DIKE´ (βεβαιώσεως δίκη), an action to compel the vendor to make a good title, was had recourse to in the following cases:--

1. To compel specific performance of the contract, when the vendor, after receiving the ἀρραβὼν or deposit, gets a more advantageous offer from another quarter, or otherwise repents of his bargain. (Harpocrat. s. v. ἐνίοτε καὶ ἀρραβῶνος μόνου δοθέντος, εἶτα ἀμφισβητήσαντος τοῦ πεπρακότος, ἐλάγχανε τὴν τῆς βεβαιώσεως δίκην τὸν ἀρραβῶνα δοὺς τῷ λαβόντι.

2. When the right or possession of the purchaser was impugned or disturbed by a third person. A claimant under these circumstances, unless the present owner were inclined to fight the battle himself (αὐτομαχεῖν), was referred to the vendor as the proper defendant in the cause (ἀνάγειν ἐπὶ τὸν πρατῆρα, Poll. 8.34). The latter was then bound to make good the title (βεβαιοῦν); or if he refused, the action in question was the legal remedy against him.

3. If the third party so claiming had established his right, and been by the decision of the dicasts put in legal possession of the property, whether movable or otherwise, the ejected purchaser was entitled to sue for reimbursement (τὴν τιμὴν καὶ τὴν ζημίαν, the actual price plus compensation for loss and inconvenience) from the vendor by this action (Pollux, 8.6). The intricate case in the speech of Demosthenes against Pantaenetus has sometimes been referred to this head, but seems hardly to belong to it. The provision in Plato's Laws (12.954 A) probably represents the actual law of Athens: “He who sells for another who sells unlawfully, or is not able to make good the loss, shall himself be responsible; the agent and the principal shall be equally liable.”

It has been conjectured that there was also a βεβαιώσεως δίκη when the purchaser of confiscated property (δημιόπρατα) was disturbed in his possession by a claimant; the defendant in that case being the Prytanis of the Poletae who had carried out the decree of sale (Att. Process, p. 574). But it was a well-known axiom in Athenian law that sales by the state gave an indefeasible (or, as we should say, a parliamentary) title (Demosth. c. Timocr. p. 717.54, with Wayte's note; Pollux, 8.99; Hesych. sub voce ἐν λευκώμασι). The only evidence to the contrary is a doubtful reading (πέπρακε for πέπραχε) in Demosth. c. Pantaens. p. 972.19; and the notion of Meier and Schömann has not found favour among recent scholars (Müller, ap. Pauly; Caillemer, ap. D. and S.).

The βεβαιώσεως δίκη, like most civil actions, came before the tribunal of the Thesmothetae (K. F. Hermann, Privatalterth., § 65, n. 15-18).

[J.S.M] [W.W]

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