Paulus, Questions, Book V. In making sales we know what acts the debtor must perform on the one hand, and what the purchaser must do on the other; but if any different terms are inserted in the contract they must be observed.

Ad Dig. 18,4,6ROHGE, Bd. 5 (1872), S. 44: Uebergang des Rechts, eine Handlung des Cridars mit der actio Pauliana anzufechten, auf den Cessionar.The Same, Questions, Book V. The right of action for the recovery of a pledge should also be assigned to the purchaser, even where the pledge has been received by the vendor after the sale; for the advantages of the vendor must accrue to the purchaser.

The Same, Questions, Book V. If I purchase a second time, under a condition, something which I have already purchased absolutely, the subsequent purchase is void. 1Ad Dig. 18,5,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 321, Note 22.Where a ward personally makes a contract without the authority of his guardian, and afterwards makes a purchase with his consent, although the vendor is already bound by a contract with him, still, because the ward is not liable, the sale is renewed in order that they may be mutually bound. If the authority of the guardian was interposed in the first place, and afterwards the ward made a purchase without his authority, the second purchase is void. The question may also be raised if the purchase can be annulled, where an agreement was entered into by the ward without the authority of his guardian, since such an agreement has the same effect as if the ward had, in the first place, made the purchase without the authority of his guardian, and therefore he himself is not liable; but if he brings an action for the property, can the vendor retain it until it is paid for? It may reasonably be held, however, that since the purchase was properly contracted for in the beginning, it is hardly consistent with good faith that an agreement should be adhered to if, by means of it, the other party should be taken at a disadvantage; and this is especially the case if the latter was misled by a plausible error.

Paulus, Questions, Book V. Titius sold a slave on condition that if he remained at Rome he would be permitted to arrest him. The purchaser sold him to another party under the same condition, and the slave escaped from the second purchaser, and remained at Rome. I ask whether he could be arrested, and if this was the case, by whom? I answered, there was no doubt that, as he was a fugitive, nothing would be held to have been done contrary to the condition, as he had no right to leave his master; nor, merely because he was a fugitive, could he establish his residence at Rome. If, however, he remained there with the consent of the second purchaser, the party who imposed the condition should be preferred, and the second vendor is only held to have had recourse to it for the purpose of warning the purchaser, and releasing himself from liability; for he could, in no way deprive his vendor of the benefit given by the condition, as if he promised to pay a penalty he would be liable even though he himself had also stipulated for the same penalty. But where a penalty is promised, two actions will lie, and the slave can be arrested. If, however, the first vendor made the sale under the condition that if the slave became a prostitute she should be free, and the second one that she could be seized; freedom will be preferred to the right of arrest. It is clear that if the first condition included the right of seizure, and the last one that of freedom, it must be held that the one granting her freedom will have the preference; since both conditions are added for the benefit of the slave, and, as arrest by the vendor releases her from harm, so freedom produces the same effect.

Ad Dig. 19,1,43Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.The Same, Questions, Book V. When Titius died, he left Stichus, Pamphilus, and Arescusa in trust to Seia, and directed that all of them should be given their freedom after the lapse of a year. As the legatee was unwilling to accept the trust, and still could not release the heir from the claim which she had against him, the heir sold the said slaves to Sempronius, without mentioning that their freedom had been bequeathed by the terms of the trust. The purchaser, after having made use of the labor of the aforesaid slaves for several years, manumitted Arescusa; and when the other slaves, having ascertained the intentions of the deceased, demanded their freedom granted under the trust, and brought the heir before the Prætor, the slaves were manumitted by the former on the order of the Prætor. Arescusa answered that she was unwilling to have the purchaser for her patron. When proceedings were instituted by the purchaser in an action on purchase to recover from the vendor the price paid for the slaves including Arescusa; an opinion of Domitius Ulpianus was read, in which it was held that if Arescusa declined to have the purchaser for her patron, her act was justified by a rescript of the Imperial Constitutions, but that the purchaser, after her manumission, could not recover anything from the vendor. I remember that Julianus held, with reference to this opinion, that the right to an action on purchase continued to exist even after the manumission, and I ask which opinion is correct? In this proceeding it was petitioned in the name of the purchaser, that the expenses which he had incurred in the instruction of one of the slaves should be refunded to him. I also ask, since Arescusa refused to have the purchaser as her patron, by whose act she was liberated, and whether she could have either the legatee who did not liberate her, or the heir as her patron, for the other two slaves were manumitted by the heir. I answered that I have always approved the opinion of Julianus, who thought that the right of action was not extinguished in this way by manumission. But with reference to the expenses which the purchaser incurred in the instruction of the slave, there is a point to be considered, for I think that an action on purchase will be sufficient in a case of this kind, since not only is the price involved, but all the interest of the purchaser in not being deprived of the slave by eviction. It is clear that if the expense incurred in the case you suggest exceeds the price to such an extent that the vendor would not have thought that it would amount to so much; as, for instance, if we suppose that the slave was purchased for a small sum and instructed as a charioteer or an actor, and the owner was afterwards deprived of him by eviction, it would seem to be unjust for the vendor to be liable for a larger amount.

Ad Dig. 19,1,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 14.Paulus, Questions, Book V. Africanus states that Julianus held the same opinion, and this is just, as the amount to be paid will be diminished if the value of the slave has depreciated while in the hands of the purchaser, when he is recovered by a better title. 1Ad Dig. 19,1,45,1ROHGE, Bd. 20 (1877), Nr. 99, S. 398: Einfluß der Konkurrenz der culpa levis des Beschädigten auf die Haftung des Beschädigers.The following is held to be more convenient, namely, if you should sell me a vacant lot belonging to another, and I should build upon it, and the owner of the property should recover it by eviction; for since the latter, in bringing an action to recover said property, can be barred by an exception on the ground of bad faith unless he pays the cost of the buildings, the better opinion is that the vendor is not responsible for this. It must also be held in the case of a slave that, if he is recovered under a better title, while he is still in slavery and not after he has been set free, the owner must make good any outlay and expenses incurred on his account. If the buyer is not in possession of the building or the slave, he will be entitled to an action on purchase. In all these instances, if anyone knowingly sells property belonging to another he will, unquestionably, be liable. 2There still remains the third point, that is to say, who shall be the patron of the freedwoman Arescusa, who refused to accept the purchaser as such? It is held, and not without reason, that she ought to become the freedwoman of the person by whom she is sold, that is to say, of the heir, because he himself is liable to an action on purchase. This only applies where Arescusa does not select the purchaser as her patron, for if she does, she will remain his freedwoman, and he will not be entitled to an action on purchase, because he has no longer any interest since he has her as his freedwoman.

Paulus, Questions, Book V. My natural son is in your service, and your son is in mine. It is agreed between us that you shall manumit mine, and that I shall manumit yours. I did so, but you did not. The question arose as to under what action you will be liable to me. In the consideration of this point every kind of transaction relative to the delivery of property must be taken into account which is shown in the following example, namely: I either give to you that you may give to me, or I give to you that you may perform some act, or I perform some act that you may give to me, or I perform some act for you that you may perform another for me. In these cases it may be asked what obligation arises. 1If, in fact, I give money that I may receive some property in return, the transaction is one of purchase and sale. If, however, I give an article in order to receive another, for the reason that it is not held that an exchange of property is a purchase, there is no doubt that a civil obligation arises on account of which an action can be brought, not to compel you to return what you have received, but that you may indemnify me to the extent of my interest in receiving the article which was the subject of the contract; or if I prefer to receive my property, an action can be brought to recover what was given, because property was given on one side but not on the other. If, however, I gave you certain cups in order that you might give Stichus to me, Stichus will be at my risk, and you will be responsible only for negligence. This is the explanation of the agreement, “I give in order that you may give.” 2But where I give in order that you may perform some act, and the act is such that it can be hired; for example that you may paint a picture, and money is paid, it will be a hiring, just as a purchase was made in the former instance. Where the transaction is not a hiring, a civil action either arises with reference to my interest, or a suit for the recovery of the property will lie. But if the act is such that it cannot be the subject of a contract for hire, as, for instance, that you manumit a slave, whether a certain time is added within which he must be manumitted, and when he could have been manumitted the time elapsed during the lifetime of the slave; or whether the time had not elapsed, but a sufficient period had passed when he could and should have been manumitted, an action can be brought for his recovery, or one for the construction of the contract. What we have already stated is applicable to these cases. If, however, I gave you a slave in order that you might manumit your slave, and you did so, and the one that I gave you is lost through a better title; if I gave him to you knowing that he was the property of another, Julianus says that an action based on fraud should be granted against me. If I was ignorant of the fact, a civil action in factum can be brought against me. 3If I perform some act in order that you may give me something, and after I have performed the act, you refuse to give it; a civil action will not lie, and therefore one on the ground of bad faith will be granted. 4If I perform some act in order that you may perform another, this includes several transactions. For if you and I agree that you can collect a claim from my debtor at Carthage, and that I can collect one from yours at Rome, or, that you may build a house on my land, in order that I may build one on yours, and I build mine, you fail to build yours; it is held that, in the former example, a mandate is given, as it were, without which money cannot be collected in the name of another. For even though expenses should be incurred on both sides, still, we are each doing a service for one another, and a mandate founded on an agreement may extend beyond its natural limits. For I can direct you to be responsible for the safe-keeping of the property, and, order that, in collecting the debt, you shall not spend more than ten aurei. Where we both spend the same amount, there can be no cause for dispute, but if only one performs the act, so that in this instance a mandate seems to have been given, for example, that he should refund to one another the expenses incurred by each, I give you no mandate with reference to your own property. It will, however, be safer both in the construction of houses and in the collection of debts, to hold that an action should be granted for the interpretation of the contract, which resembles an action on mandate, just as in the former cases a resemblance exists between the action on hiring and the one on sale. 5Hence, if these things are true, where it has been agreed upon by both parties to perform reciprocal acts, the same can be said with reference to the question proposed; and it necessarily follows that judgment must be rendered against you to the extent of my interest in the slave that I manumitted. Should a deduction be made because I now have a freedman? This, however, cannot be taken into consideration.

The Same, Questions, Book V. Where one slave purchases another, and his master brings an action for his return, the vendor is not obliged to pay him, unless he delivers to him everything included in this action, the whole amount in fact, and not merely what has reference to the peculium; for if the master brings an action on sale, unless he pays the entire purchase-money, he will not accomplish anything. 1Where, however, a slave or a son makes a sale, an action for the return of the slave will involve his peculium, and the ground for the return is also included in the peculium. Nor does it concern us that the slave was not part of the peculium before he was returned, for a slave cannot belong to the peculium who is still the property of the purchaser, but the ground for the return itself is considered to be part of the peculium. Therefore, if a slave purchased for ten thousand sesterces is only worth five thousand, we say that the latter sum belongs to the peculium. This is the case if he owes his master nothing, or has not been deprived of the peculium. If, however, he owes his master more, the result will be that he must surrender the slave, and will not recover anything.

Paulus, Questions, Book V. Where property is evicted an action on purchase will not only lie for the recovery of the price, but also for the amount of the interest of the buyer. Hence, if the property has become less valuable, the loss must be sustained by the buyer.

Paulus, Questions, Book V. A guardian or a curator cannot marry a grown woman who is committed to his care, unless she has been betrothed to, or intended for him by her father, or where the marriage takes place in accordance with some condition mentioned in his will.

Paulus, Questions, Book V. The question is asked whether, where a woman, either before or after marriage, agrees that her creditor shall be satisfied with the crops of land which she gave by way of dowry, will the agreement be valid? I say that it will be valid, if it is made before marriage and that in this way the dowry will be diminished; but if it is made after marriage, as the profits of the dowry are intended to relieve the matrimonial burdens, the husband practically consents to pay the creditor out of his own property, and the transaction will be a mere gift.

Paulus, Questions, Book V. The application of this law is therefore indefinite, because the obligation was dotal. Hence where the husband was able to alienate one tract of land could he also alienate the other, because he had the right to repurchase the first, even if this had not yet been done? Or should this not be allowed, for fear either one of them might compose the dowry? It is certain that one of them would be held to have been lawfully alienated, if the other was afterwards redeemed.

Paulus, Questions, Book V. If a father-in-law, appointed heir by his son-in-law, enters upon his estate, and the father dies, his daughter can bring an action on dowry, so Nerva and Cato hold; and this opinion is also stated by Sextus Pomponius in the Fifth Book of the Digest of Aristo. Pomponius, in the same place, agrees with Aristo. I, however, will say that if the father should emancipate his daughter, he also can be sued by her. 1Lucius Titius promised Gaius Seius a hundred aurei by way of dowry for his daughter, and it was agreed between Gaius Seius and Lucius Titius, the father of the woman, that the dowry could not be demanded of the husband during the lifetime of Lucius Titius, that is, the father of the woman. The marriage was afterwards dissolved by a divorce through the fault of the husband, and the father of the woman, having died, appointed other heirs, after disinheriting his daughter. I ask whether the husband could collect the dowry from the heirs of his father-in-law since he was obliged to return it to the woman? I answered that since the daughter was entitled to an action to recover her dowry, as other heirs had been appointed by her father, her husband would be required either to surrender the actual dowry to her, or assign her his rights of action, and that the heirs of the father-in-law would not have a right to plead an exception against him; since it would be absurd for a party to be considered guilty of bad faith when he demands a sum of money to be refunded, not to him whom he sued, but to another. On the other hand, if the divorce had taken place after the death of the father, and before the dowry had been demanded, the husband would be excluded from bringing an action for the dowry, which should not be admitted. But even if the daughter had been appointed heir to a part of her father’s estate, the husband should bring suit against her co-heirs for their individual proportions of the dowry, and either return to the woman what he collects, or assign to her his rights of action.

Paulus, Questions, Book V. If you appoint a patron heir to the share to which he is entitled by law, and charge him to transfer absolutely a tract of land to someone, and bequeath him a legacy of the same value as said land, under a condition, the trust becomes conditional. There is something here, however, which may cause annoyance, for the patron will be burdened with the execution of the trust. It must be said in this instance that security should be given by the trustee who is charged with the legacy to the patron, so that the latter may not, under any circumstances, suffer a diminution of his rights. 1A patron having been appointed an heir, and a slave having been bequeathed to him in order to make up the share to which he was entitled by law, cannot demand prætorian possession contrary to the terms of the will, even though the slave should die before the will is opened. 2Ad Dig. 38,2,44,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 644, Note 8.If a freedman, either by appointing him his heir, or by a legacy, leaves his patron the share of his estate to which he is legally entitled at the time of his death, and, after the decease of the freedman, another slave having returned from captivity increases the value of the estate; the patron cannot, on this account, complain that he had a smaller interest in the slave than he would have had if he had been appointed heir to the share in him to which he was entitled by law. The same rule applies with reference to alluvium, provided the patron is satisfied out of the estate which the freedman left at the time of his death. This is also the case when a portion of a legacy or of an estate is left to a freedman at the same time with others, and the latter refuse to accept, and their share accrues to the estate of the freedman.

Paulus, Questions, Book V. Latinus Largus sold a female slave under the condition that she should be manumitted, but did not mention any time when this must be done. I ask when she would be entitled to freedom, by virtue of the constitution, if the purchaser failed to manumit her? I answered that the understanding of the parties ought to be considered, whether the purchaser must manumit her as soon as he could, or whether it was in his power to liberate her whenever he chose to do so. In the first instance, the time can easily be determined; in the last, she will be entitled to her freedom at the death of the purchaser. If what was agreed upon is not apparent, the favor conceded to liberty will cause the first opinion to be accepted; that is to say, the slave will be entitled to her freedom within two months, if both the slave and her purchaser are present; but if the slave should be absent, unless the purchaser gives her her freedom within four months, she will obtain it by virtue of the Imperial Constitutions.