Paulus, On Sabinus, Book V. Where one house is conveyed by a party who has two; the description of the servitude should be expressly set forth; for if it is only mentioned in general terms that the house is subject to a servitude, the statement will be inoperative, because it is uncertain what kind of a servitude it reserved, or any kind of servitude may be imposed. 1Where a house which belongs to another party is situated between the two, a servitude can be created; as for instance, that the height of one of them may, or may not be raised; or even where a right of way is owing, that it shall only become operative if a servitude should subsequently be imposed on the intervening house; just as a servitude can be imposed on tracts of land belonging to several owners, even at different times. Although it can be stated that if I have three tracts of land which are adjoining, and I convey that at one end to you, a servitude can be acquired either for the benefit of your tract, or for that of both of mine; but if it is acquired for the tract most distant from you, which I have retained, the servitude will stand, because the intermediate tract is mine. But if I subsequently alienate either the tract for whose benefit the servitude was acquired, or the intermediate one, the right will be interrupted until a servitude is imposed on the intermediate tract.

Ad Dig. 13,6,11BOHGE, Bd. 1 (1871), S. 253: Haftung aus der Ueberweisung eines Arbeiters zu einer nicht übernommenen Leistung.ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.Paulus, On Sabinus, Book V. Because he did not select a suitable person in order that it might be carried securely.

Paulus, On Sabinus, Book V. Because a freeman is not easily distinguished from a slave.

Ad Dig. 18,1,10ROHGE, Bd. 22 (1878), Nr. 90, S. 392: Error in substantia, in qualitate, in bonitate.Paulus, On Sabinus, Book V. The case would be different where a party had actually sold gold, and the purchaser thought that it was a metal of less value, for then the sale will be valid.

Paulus, On Sabinus, Book V. Even though the parties may agree upon the article which is the object of the sale, still, if, in accordance with the course of nature, it ceases to exist before the sale is concluded, the purchase will be void. 1A purchaser can take advantage of his ignorance, provided it is not that of an extremely careless man. 2Ad Dig. 18,1,15,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 72, Note 10.If you sell me my own property, and I am ignorant of the fact, and you deliver it to another by my direction, Pomponius does not think that my ownership passes, since it was not intended that mine should pass to the other party, but that yours should do so. Therefore, the same rule applies where I intend to give some property of mine to another, and you deliver it to him under my direction.

Paulus, On Sabinus, Book V. Labeo says that the ambiguity of an agreement should rather prejudice the vendor who mentioned the terms, than the purchaser; because the former could have stated them more clearly before anything had been done.

Ad Dig. 18,1,23ROHGE, Bd. 16 (1875), Nr. 43, S. 150: Verpflichtungen aus dem Verkaufe eines nicht existirenden Kaufobjekts. Eigener Wechsel an eigene Ordre. Einfluß des Irrthums.Paulus, On Sabinus, Book V. The purchaser can revoke what he has paid on the ground of its not having been due.

Paulus, On Sabinus, Book V. Even though they are outside the house.

Paulus, On Sabinus, Book V. A conditional sale during a certain time is made as follows: “Such-and-such a tract of land is considered to be purchased by you, unless before the first Kalends of next January, I can obtain better terms by which I can relinquish the ownership of the same.”

Paulus, On Sabinus, Book V. Since, after the destruction of the property the condition of the vendor cannot be improved.

Paulus, On Sabinus, Book V. The vendor can adjudge the property to the last purchaser, where better terms are offered, unless the former is ready to bid a larger sum.

Paulus, On Sabinus, Book V. If a vendor pretends that better terms have been offered, while, in fact, the price was lower; and he should sell the property to the party for this, or for the same that had been previously offered, he will be liable to both purchasers for the entire amount. 1Where the purchaser provides another who is not solvent, and the land is adjudged to him, Sabinus says, “I do not see how the property can be purchased by the former, since another and a genuine sale has subsequently been made.” It is true, however, that where the vendor has been deceived, he will be entitled to an action on sale against the first purchaser, to the extent that he was interested in not having this done. By means of this action, the vendor will recover the crops which the first purchaser gathered, as well as damages to the extent that the property was deteriorated by the negligence or fraudulent acts of the latter. This opinion was also held by Labeo and Nerva. 2But where neither of the parties provided the new purchaser, but the land was adjudged to him on account of the larger amount which he offered, even though he may not be solvent, the first purchase is annulled; because what the vendor approved is understood to be more advantageous, since he had the right not to adjudge the property to the last purchaser. 3Where, however, a ward purchases property at a higher bid, without the authority of his guardian, if the vendor accepts his bid the first purchase will be annulled; and the same rule applies to the case of a slave belonging to another. It would be otherwise, however, if the vendor, through mistake, should adjudge the property to his own slave, or to his son who is under his control, or to the owner of the property himself, because there can be no sale under such circumstances. On the other hand, if he should adjudge the property to the slave of another whom he believed to be free, he would be liable; and the case will be similar to that of an insolvent debtor. 4Where a purchaser offers better terms, he acquires nothing except the property which is sold. 5Still, however, better terms are not offered where another party is willing to pay the same price, because he does not obtain the crops which belonged to the first purchaser, since these are not the object of the transaction between a second purchaser and the vendor.

Paulus, On Sabinus, Book V. The vendor must exert the same care that he should do where articles are loaned for use; that is to say, he must exercise more exact diligence than he would with reference to his own property.

Ad Dig. 18,6,5ROHGE, Bd. 11 (1874), Nr. 97, S. 295: Folge des Annahmeverzuges des Frachtguts seitens des Empfängers. Befugnis des Frachtführers zum Verkaufe, nicht Verpflichtung.Paulus, On Sabinus, Book V. If it was the fault of the purchaser that the wine was not removed at the appointed time, the vendor is not obliged to be responsible for it afterwards, unless the delay was caused by fraudulent intent on his part. If, for example, a hundred jars of wine in a certain cellar were sold, the vendor must bear the risk until they are measured, unless the purchaser was to blame for the delay.

Paulus, On Sabinus, Book V. If, after a sale, an addition is made to land by alluvial deposit, or its amount is diminished from the same cause, the purchaser will enjoy the advantage, or suffer the inconvenience. For if, after the sale, the entire field is covered by a river, the purchaser must bear the loss, and therefore, in the same manner, he is entitled to any benefit arising therefrom. 1Everything that is sold must be conveyed with the land, unless it has been agreed upon that this should not be done. Whatever cannot be measured must also be transferred, if this was the understanding; as, for instance, highways, boundaries, and groves adjoining the premises. Where, however, nothing was said on the subject, these need not be transferred; and therefore it is customary to expressly provide that groves, and public highways which are in the tract of land shall all be measured, and included in the transfer.

Paulus, On Sabinus, Book V. Where the dimensions of a tract of land are mentioned at the time of the sale, and the amount is not delivered, an action on purchase will lie. 1Full possession of property is not understood to be transferred to a purchaser, if any legatee or trustee appointed for its preservation is in possession of the same, or any creditors hold it. The same must be said where an unborn child is in possession, for the term full possession also applies to this case.

Paulus, On Sabinus, Book V. If you sell me a slave, being aware that he is a thief or has committed some damage, and I am ignorant of the fact, even though you may have promised me double damages, you will be liable to me in an action on purchase to the amount of what my interest would have been in knowing the character of the slave; because I cannot bring an action against you on the ground of the stipulation, before I myself have actually lost something. 1Where the measurement of a field is found to be less than had been stated, the vendor will be liable for the amount of the deficiency; because where the measurement falls short, the quality of ground which does not exist cannot be ascertained. And not only will the purchaser be entitled to an action where the measurement of a field falls short in its entirety, but also with reference to any portion of the same; as, for instance, if it were stated that there are so many jugera in a vineyard, or an olive-orchard, and the amount is found to be less. Therefore, in these instances, an estimate should be made with reference to the good quality of the soil.

Paulus, On Sabinus, Book V. If I should deliver to you a field free of all encumbrance, when, in fact, I ought to have delivered it as subject to a servitude; I will have the right to bring an action for the recovery of an unascertained amount, in order to compel you to permit the servitude which is due to be imposed. 1If I transfer a field subject to a servitude, which I should transfer to you as free; you will be entitled to an action on purchase, in order to release said servitude, which you ought not to be burdened with.

Paulus, On Sabinus, Book V. If double damages are not promised, and an action is brought on the ground of eviction; judgment for double damages should be rendered against the defendant.

Paulus, On Sabinus, Book V. Proculus very justly held that where part of a tract of land is lost by eviction, an estimate of its quality should be made at the time when it was sold, and not when the purchaser was deprived of it;

Paulus, On Sabinus, Book V. If, however, the land subsequently received any accession by way of alluvial deposit, the time when this took place should be taken into account. 1Ad Dig. 21,2,15,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 28.Where an usufruct is lost by eviction, an estimate should be made of the value of the crops. Where, however, a slave is lost to the purchaser by eviction, the extent to which the land is diminished in value on this account must be estimated in court.

Paulus, On Sabinus, Book V. Even though an exception may not have been pleaded, or if, having been successfully opposed, the purchaser is, nevertheless, evicted; the vendor can still be sued for double damages under the stipulation, for an action on purchase can be brought against him.

Paulus, On Sabinus, Book V. The purchaser will be entitled to an action on sale, on the ground that he did not make him his freedman, if the vendor was aware that he was selling a slave belonging to another. Where, however, the purchaser was compelled to manumit the slave on account of a trust, he will be entitled to an action on purchase.

Paulus, On Sabinus, Book V. Where an estate is left to anyone under the condition, “If he pays a certain sum to a minor, or an insane person,” the legatee will be held to have complied with the condition if he pays the money to the curator or the guardian of the party interested.

Paulus, On Sabinus, Book V. A slave who is to be conditionally free is one who will be entitled to his freedom at the expiration of a prescribed time, or upon the fulfillment of a certain condition. 1Slaves become free either under an express condition, or by the operation of the law itself. It is clear in what way this takes place under an express condition. They are manumitted by operation of law where they are liberated for the purpose of defrauding creditors. For as long as it is uncertain whether a creditor will avail himself of his rights, the slaves are conditionally free, because, by the Lex Ælia Sentia, the commission of a fraud under such circumstances must take effect.

Paulus, On Sabinus, Book V. When the heir is absent on business for the state, and the slave has the money ready for payment, he must wait until he to whom he is to pay it returns, or he must deposit it, sealed up, in a temple; and this having been done, he will immediately be entitled to his freedom. 1Ad Dig. 40,7,4,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 94, Note 8.A slave is not considered to become conditionally free whose liberty is deferred for so long a time that he who is to be manumitted cannot live until it has elapsed; or, if his owner has prescribed such a difficult, or even an impossible, condition that his freedom cannot be acquired by complying with it; as, for instance, if it was that he should pay a thousand times a certain sum to the heir, or if he should order him to be free from the time of his death. A grant of freedom made in this manner is void, as Julianus says, because there is, in fact, no intention of granting the slave his freedom. 2If a slave is ordered to be free on condition of serving Titius for a year, and Titius should die, the slave will not immediately become free, but he will after the expiration of a year, because freedom is considered to have been given him not only under a condition, but also from a certain date. For it would be absurd for him to become free sooner when he did not comply with the condition than he would if he did comply with it. 3Where a slave is ordered to be free on the payment of ten aurei to two persons, and one of them refuses to accept five, it is better to hold that the slave can obtain his freedom by tendering the said five aurei to the other party. 4“Let Stichus be free, if he serves Titius for three years, or renders him services worth a hundred solidi.” It is settled that freedom can be legally granted in this manner; for the slave of another can serve us as a freeman, and can, with greater propriety, render us his services; unless the testator, by the term services, meant ownership, rather than labor. Hence, if the heir prevents the slave from serving Titius, he will be entitled to his freedom. 5“Let Stichus be free if he serves my heir for a year.” The question might arise how ought the word “year” be understood in this case; should it be a term which contains three hundred and sixty-five consecutive days, or merely that many days? Pomponius says that the word should be understood in the former sense. If, however, illness, or some other just cause prevents the slave from serving during certain days, these ought to be included in the year. For those whom we take care of when ill are understood to serve us, if they are willing to do so but are precluded by bad health. 6If a slave is ordered to pay ten aurei to the heir, the latter will, through the indulgence conceded to freedom, be compelled to receive the money in separate payments. 7Where a slave was ordered to be free, “if Titius should ascend to the Capitol,” and Titius refuses to do so, the grant of freedom is annulled. This rule also applies to similar cases under the same conditions. 8Cassius, likewise, says that where a slave is ordered to serve for a year, the time when he was in flight or in litigation will not be included in favor of his freedom.

Paulus, On Sabinus, Book V. The alienation of the usufruct does not carry with it the condition upon which the slave is to become free.

Paulus, On Sabinus, Book V. If an heir sells a slave who had been ordered to pay ten aurei, and delivers him to the purchaser, and says that he was entitled to his freedom if he pays twenty aurei, an action on purchase will lie against the vendor. If double the amount had been promised, an action for double damages will lie on the ground of eviction, and an action on purchase on account of the false statement.

Paulus, On Sabinus, Book V. A person to whom property is due under the terms of a stipulation is not entitled to an action for theft if it should be stolen, even though the debtor may be to blame for not having delivered it to him.

Paulus, On Sabinus, Book V. A creditor, whose pledge has been stolen, has an interest not merely to the extent of his claim, but he can bring an action of theft for the entire value of the property stolen, but he must return to the debtor all in excess of his debt which can be recovered in an action on pledge. 1The owner of the property who has stolen something of which another enjoys the usufruct is liable to the usufructuary in an action for theft. 2If anyone who has lent you an article for use should steal it; Pomponius says that he will not be liable in an action for theft, as you have no interest in the matter, for an action based on the loan of the property cannot be brought against you; hence, if you have retained the article on account of some expense which you have incurred with reference to it, you will be entitled to an action for theft, even against the owner himself, if he should steal it, because, in this instance, the property takes the place of a pledge.

The Same, On Sabinus, Book V. The following clause is not only inserted in contracts for the delivery of property, but also in purchases, stipulations, and wills, namely, “In the best condition possible,” and means that land is guaranteed to be free from all encumbrances, but not that servitudes are due to it.

Paulus, On Sabinus, Book V. Whenever the interest of anyone is concerned, it is a question of fact, and not one of law.