Ad Dig. 17,1,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 411, Note 5; Bd. III, § 567, Note 7.Gaius, On the Provincial Edict, Book X. The rule is the same if I have directed you to purchase a tract of land from my heirs after my death.

Gaius, On the Provincial Edict, Book X. Because, although delivery does not actually take place, still, it is tacitly presumed to do so.

Gaius, On the Provincial Edict, Book X. On the other hand, he who has admitted him will be responsible to him for the acts of the other partners as well as for his own, because he himself has a right of action against them. It is also certain that there is nothing to prevent proceedings in an action on partnership from being instituted between the partner who admitted him and him who was admitted, before this is done between the other partners and the one who admitted him.

Gaius, On the Provincial Edict, Book XX. In those instances where one party happens to have expended money on the common property, or collected the crops or profits of the same, or has diminished its value, there is no ground for an action on partnership; but among co-heirs an action for partnership of the estate will lie, and among others an action for the division of property owned in common. An action for the division of property held in common can also be brought between those to whom it belongs by hereditary right.

Gaius, On the Provincial Edict, Book X. If at the time when the partnership property is divided, circumstances exist which make it certain that the dowry, or even a portion of the same, should not be given up; the judge should order it to be divided among the partners.

Gaius, On the Provincial Edict, Book X. No partner, even though the partnership is a general one, can alienate a larger amount than that which composes his share. 1The question arises whether a party is held to have committed an act to avoid making payment of the amount for which he is responsible, who disposes of his property fraudulently to avoid a future suit, or who does not make use of an opportunity for profit on this account? The better opinion is that, in this instance, the Proconsul had in mind a party who had disposed of his property, and this we can infer from the interdicts in which the sentence, “Because you have committed fraud in order to avoid being in possession,” is inserted.

Gaius, On the Provincial Edict, Book X. Because earnest is often given where purchases are made, it does not follow that where this is not done the agreement is void; but only that it can be more easily proved that the price was agreed upon. 1It is settled that a transaction is imperfect when the vendor says to a party who wishes to buy: “You can purchase this for whatever price you wish to give, or for whatever you think just, or for whatever you consider the article to be worth.” 2Certain authorities hold that a contract cannot be made for the purchase of deadly poison, because neither a partnership nor a mandate has any force in a case where criminality is involved. This opinion can, indeed, very properly be held with reference to substances which cannot be rendered useful to us, even with the addition of something else. Concerning substances, however, which, after having been mixed with others, lose their harmful nature to such an extent that antidotes and other healthful drugs can be made of them, a different opinion must be given. 3If anyone should direct a friend of his, who was about to take a journey, to look for his fugitive slave, and if he found him, to sell him; he cannot be said to have acted in violation of the Decree of the Senate, because he did not sell him, nor can his friend, if he sold him when he was present. A purchaser, also, if he buys a slave who is present, is understood to have engaged in a legal transaction. 4Ad Dig. 18,1,35,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 389, Note 8d.If property which is purchased is lost by theft, it must first be considered what had been agreed upon between the parties with reference to its safe-keeping. If no agreement appears to have been entered into, the same care in its custody should be required of the vendor as a good head of a household would exercise with regard to his own property. If he used such care, and the property was nevertheless, lost, he will be secure, for he can assign his right of action to recover it, as well as his right of personal action to the purchaser. Wherefore, we must consider the legal position of him who sells property belonging to another, since he is not entitled to an action to recover it, or to a personal action either. On this account he should have judgment rendered against him, because if he had sold his own property, he would have been able to assign these rights of action to the purchaser. 5With reference to articles which are determined by weight, number, and measure (as, for instance, grain, wine, oil, and silver) the sale is held to be perfected in these instances as well as in others, only when an agreement has been made with reference to the price; and sometimes, even when an agreement has been made as to the price, the sale is not considered to have been perfected, unless the articles have been measured, weighed, or counted. For where all the wine, oil, grain, or silver, no matter how much there may be, is sold for a certain price, the same rule applies as in the case of other property. If, however, the wine was sold in separate jars, and the oil in separate vessels, the grain in separate measures, and the silver in separate weights, a certain price being fixed for each; the question arises at what time was the purchase perfected? This question might also be asked with reference to articles which are counted, where the price was fixed according to a certain number of said articles. Sabinus and Cassius hold that the purchase became complete when the articles were counted, measured, or weighed; because the sale is considered to have been made under the condition that you should measure them in individual vessels, or weigh them pound by pound, or count them one by one. 6Ad Dig. 18,1,35,6ROHGE, Bd. 5 (1872), S. 406: Beim Kaufe nach Gewicht ist für die Preisbestimmung der Zeitpunkt der Ablieferung entscheidend.Therefore, if a flock is sold as a whole, for a certain amount, the sale is held to be perfect after the price has been agreed upon; but if the animals are sold by the head at a certain price for each one, the rules which we have just laid down will apply. 7Where wine is sold from a wine-cellar, for example, a hundred measures, it is perfectly true, (and this also seems to be settled) that it will be entirely at the risk of the vendor before it is measured. It makes no difference whether a price has been fixed for the hundred measures, or where one has been agreed upon for each of them. 8Where anyone, in selling a tract of land, conceals the name of his neighbor from the purchaser, and the latter, having learned it, should not purchase the property, we hold that the vendor will be liable.

Gaius, On the Provincial Edict, Book X. But this should be understood to be operative only where a party is not aware that he had no right to the succession which he sold; for if he did, he would be liable on the ground of fraud.

Gaius, On the Provincial Edict, Book X. Unless the vendor has stated the amount.

Gaius, On the Provincial Edict, Book X. If, after the examination of a tract of land, and before the contract of sale is made, the trees on said tract are overthrown by the force of the wind, the question arises whether they, also, should be delivered to the purchaser? The answer is that they should not, because he did not purchase them, since before he bought the land they ceased to be a part of it. Where, however, the purchaser was not aware that the trees had been overthrown, but the vendor knew it and did not inform him, he will be liable for damages to the amount of interest of the purchaser, provided the sale takes place.

Gaius, On the Provincial Edict, Book X. Where anyone has rented property, he is not required to surrender what he recovered on account of said property in an action for theft.

Gaius, On the Provincial Edict, Book X. Where rent has been promised in general terms, to be decided by a third party, a lease is not held to have been made. But where it is stated that the amount of the rent shall be estimated by Titius, the lease will be valid subject to this condition; and if the party mentioned fixes the rent, it must, by all means, be paid in accordance with his estimate, and the lease will become operative. If, however, he refuses to do this, or is unable to fix the rent, the lease will be of no effect, just as if the amount of the rent had not been determined. 1Where a man has leased anyone a tract of land to be cultivated, or a house to be occupied, and, for some reason or other, he sells the land or the house, he must see that the purchaser permits the tenant to enjoy the land or occupy the house, in accordance with the terms of the same contract; otherwise, if he is prevented from doing so, he can bring an action on lease against the vendor. 2Where a neighbor, in building a house, cuts off the light from a room, the landlord will be liable to the tenant. There is certainly no doubt that the tenant can give up the lease in a case of this kind; and also, where an action is brought against him for the rent, compensation must be taken into account. We understand that the same rule applies where the landlord does not repair any doors or windows which may have been damaged or destroyed. 3The lessee should do everything in accordance with the terms of the lease, and, above all things, he should be careful to perform the labors on the farm at the proper time, lest cultivation out of season cause the soil to be deteriorated. He should also take care of the buildings in order to prevent them from being damaged. 4He will also be considered to be to blame if his neighbor, through enmity, cuts down the trees. 5If he himself cuts them down, he will not only be liable to an action on lease, but also to those under the Lex Aquilia and the Law of the Twelve Tables with reference to cutting trees by stealth, and to the interdict based on a violent or clandestine act. It is, undoubtedly, a part of the duty of the judge who hears the case on lease, to see that the lessor abandons the other actions. 6Superior force, which the Greeks call “Divine Power,” should not cause any loss to the tenant where the crops are injured in an unusual degree, otherwise, he must endure any moderate damage with untroubled mind, where he is not deprived of any extraordinary profit. It is evident, however, that we are speaking of a tenant who pays his rent in cash; on the other hand, where he divides the crops, as in the case of a partnership, he must also share the loss and gain with the owner of the land. 7Ad Dig. 19,2,25,7ROHGE, Bd. 13 (1874), Nr. 25, S. 77: Haftpflicht des conductor operis für die culpa seiner Gehilfen.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 5.Where anyone takes charge of the transportation of a column, and it is broken when it is raised, or while it is being carried, or when it is unloaded, he will be responsible for the damage, where this happened through his fault, or that of any of the workmen whom he employs. He will not be to blame, however, if all precautions are taken which a very diligent and careful man should take. We, of course, understand that the same rule applies where anyone agrees to transport casks or lumber, as well as other things which are to be conveyed from one place to another. 8If a fuller or a tailor should lose clothing, and satisfy the owner of the same, the latter must assign to him his rights of action to recover the property.

Gaius, On the Provincial Edict, Book X. Just as if this had happened through an attack of robbers.

Gaius, On the Provincial Edict, Book X. If I give you clothing to be cleaned or repaired, and you undertake to do the work gratuitously, an obligation on mandate arises; but if compensation has been given or agreed upon, the transaction is one of leasing and hiring. If, however, you did not undertake it gratuitously, and compensation was neither given at the time nor promised, but the transaction was entered into with the understanding that afterwards payment should be made to the amount agreed upon between us; it is settled that an action in factum should be granted, as in the case of a new transaction, that is to say a suit for the interpretation of the contract.

Gaius, On the Provincial Edict, Book X. Where a tract of land is sold, it is necessary to furnish security against eviction, according to the custom of that part of the country where the transaction took place.

Gaius, On the Provincial Edict, Book X. It sometimes happens that he who has an interest in having the property preserved is not entitled to the action for theft. For instance, a creditor cannot bring suit for the theft of property belonging to his debtor, although the latter, otherwise, may not be able to pay what he has borrowed. We speak, however, of property which has not been given in pledge. 1Likewise, a wife cannot bring an action for theft with reference to dotal property, which is at her risk; but her husband can do so.

Gaius, On the Provincial Edict, Book X. No one is compelled to make restitution of anything which has been exacted by way of penalty.