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E´MPTIO VENDI´TIO

E´MPTIO VENDI´TIO The contract of [p. 1.732]buying and selling is one of those in which the Romans said the obligation was imposed consensu, because no form (as in verbal and literal contract) or delivery on one side (as in real contract) was required to give it binding force (Gaius, 3.135; Inst. 3.22, pr.): as soon as the parties were agreed on the thing to be sold by the one, and the price to be paid by the other, they were bound, and neither could withdraw without paying damages (Gaius, 3.139). Writing was unnecessary unless it was a term in the contract that its provisions should be expressed in a note or memorandum (Inst. 3.23, pr.; Dig. 44, 7, 2). The vendor was under no obligation to deliver the res vendita until he had been paid the price, unless he chose to give credit (Inst. 2.1, 41); and until it was delivered no property in it passed to the purchaser: but it was at the latter's risk from the moment the contract was concluded, so that if, even before delivery, it was lost, stolen, or accidentally destroyed, the loss fell on the purchaser, unless he could show that the vendor had failed in his legal duty of diligentia [CULPA] in the charge of it. As a set-off to this the vendor was bound to deliver with the thing itself all its fruits, accessions, increase, &c. from the date of the contract. If the purchase-money was not paid, it carried interest (Dig. 19, 1, 13, 20). As regards the fairness or adequacy of the price, the general rule was, in the absence of fraud, not to interfere with the freedom of contract (Dig. 19, 2, 22, 3); but by two rescripts of Diocletian (Cod. 4, 44, 4 and 8), if a thing were sold for less than half its real value (which was called laesio enormis) the vendor might rescind the sale unless the purchaser would pay as much in addition as would make the price a fair one. The vendor was not bound to make the purchaser owner of the thing sold: in other words, the contract of sale would oe good even though the thing did not belong to the vendor: he was bound, however, to give free and undisturbed possession; and if the property was recovered from the purchaser by process of law by a third person who proved a better title, the vendor was bound to indemnify him [EVICTIO] (Dig. 21, 2). Every sale contained an implied warranty of quality, and the vendor was answerable for substantial defects which were unknown to the purchaser at the date of the contract (except through his own carelessness). Where the vendor had expressly warranted the quality of the thing, or had deliberately concealed defects, he could be sued by actio empti at any time within thirty years of the making of the contract: but the implied warranty was enforceable only by two special actions of aedilician origin (Dig. 21, 1) [EDICTUM]; i. e. by the actio redhibitoria (which lay only within six months) the purchaser could rescind the sale and recover his purchase-money with interest: by the actio aestimatoria seu quanti minoris (lying within twelve months) he could, without rescinding, recover a part of his purchase-money proportionate to the defects discovered. Horace in his Satires (2.3, 286; cf. Ep. 2.2 ad init.) alludes to the precautions to be taken by the buyer and seller of a slave. (Gaius, 3.139-141; Epit. 2.9, 14; Paul. Sent. rec. 2.17; fragm. Vat. 1-40; Inst. 3.23; Dig. 18, 1; 19, 1; Cod. 4, 38 and 49; Vangerow, Lehrbuch der Pandekten, § § 604, 611, 632 sq.; Bechmann, Der Kauf nach gemeinem Recht, vol. i., 1876; Muirhead, Roman Law, pp. 279-286.)

[J.B.M]

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