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COMMISSO´RIA LEX

COMMISSO´RIA LEX is a term met with in the law of pledge and in the law of sale. In the former it meant the agreement between pledgor and pledgee that the property pledged should be vested absolutely in the latter unless the debt which it secured was punctually discharged by the day fixed for payment. Such agreements, though apparently common in all three forms of pledge--Fiducia, Pignus, and Hypotheca--were declared unlawful and void by Constantine (Cod. Theod. 3, 2; Cod. 8, 35); but the principle of foreclosure was allowed to some extent, though under stringent limitations, by Justinian: see PIGNUS

In the law of sale lex commissoria denotes an agreement between vendor and purchaser that the former shall be at liberty to rescind the contract if the latter does not perform his obligations under it in due manner and at the proper time (Dig. 18, 3, 1). This was not the same thing as a conditional sale; for in the latter, if the property were damaged or destroyed, the loss would fall on the vendor, whereas in our case, if the property was lost, damaged, or destroyed, the loss fell on the purchaser. If the vendor intended to take advantage of the lex commissoria, he had to communicate his intention to the other as soon as the latter had made default; and any acceptance or demand of performance (e. g. receipt of purchase-money) after the day agreed upon was an implied waiver of his right to avail himself of it. Upon communicating his intention, he was entitled to recover the res vendita, and to keep the arra or earnest given by the purchaser, and probably also any of the purchase-money which had been paid, though in this case the purchaser might retain any fruits which he had taken from the res vendita since the conclusion of the contract (Dig. 18, 3, 4, 1; ib. 6, pr.; ib. 8). The lex commissoria also commonly stipulated that, if the vendor had to sell the property again, the first purchaser should make up any difference between the price which he had promised himself, and the less sum obtained by the second sale.

[J.B.M]

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