Pomponius, On Sabinus, Book IX. No one, by entering into an agreement, can bring it about that he will not be able to consecrate his own ground, or bury a corpse on his own land, or dispose of his property without the consent of his neighbor.

Pomponius, On Sabinus, Book IX. Where anyone is building a sepulchre near your house you can serve notice of a new structure upon him; but after the work has been completed, you will have no right of action against him except by means of the interdict Quod vi aut clam. 1Where a body is buried near a house belonging to another but within the limits prescribed by law, the owner of the house cannot afterwards prevent the same party from burying another body there, or from erecting a monument; if he acted with the knowledge of the owner from the beginning.

Pomponius, On Sabinus, Book IX. Where money which is not due is paid through mistake, suit may be brought for the recovery of the same money, or of an equal amount.

The Same, On Sabinus, Book IX. The party giving security against threatened injury with reference to a house belonging to the peculium, must furnish it for the entire amount, just as a noxal action on account of a sub-slave must be defended for the full amount, because the plaintiff, if the defence is not properly made, removes the property, or holds it in possession as a pledge.

Ad Dig. 17,2,6ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 430: Vervollständigung absichtlich unvollständiger Vereinbarung. Arbitrium boni viri. Taxation des Geschäftsantheils eines ausgetretenen Gesellschafters.Pomponius, On Sabinus, Book IX. If you form a partnership with me with the understanding that you are to have control of the shares of the partnership, this control should be such as would be exercised by a good citizen, and should be according to the judgment of one, as we may not be equal partners; for instance, where one of us has placed more labor, industry, or capital in the partnership.

Pomponius, On Sabinus, Book IX. A purchase is understood to take place where the object of it is a freeman, or a sacred or religious place, which is not susceptible of sale, if it is bought by a party who is ignorant of the fact:

Pomponius, On Sabinus, Book IX. Celsus, the son, says that you cannot purchase a man whom you know to be free, nor any other property if you know that it is not subject to alienation; as, for instance, sacred and religious places, or such as are not the object of commerce, but are public property, which, while they do not absolutely belong to the people, are used for public purposes, as, for instance, the Campus Martius. 1Where a tract of land has been sold on three annual payments, with the understanding: “That if the money is not paid at the times indicated, the sale of the land shall be void, and if the purchaser should, in the meantime, cultivate said land and harvest the crops from the same, they shall be returned if the sale is annulled, and the purchaser must make good to the vendor the amount of the price which is lacking, if he should fail to sell the property afterwards to someone else;” if the money is not paid at the stated times, it is established that the vendor will be entitled to an action of sale on this ground. We should not consider it confusing that where a purchase has been annulled, an action of sale can take place, for in the case of both purchase and sale consideration must rather be paid to the intention of the parties than to the language employed; and, according to what has been said with reference to the intention, it is evident that the understanding merely was that the vendor should not be bound to the purchaser if the money was not paid at the appointed time, and not that the mutual obligations of both purchaser and vendor should be released. 2A condition established at the beginning of a contract can afterwards be changed by a different agreement; just as both parties can absolutely rescind a sale, where the acts which were to be performed by both of them have not yet been executed.

Pomponius, On Sabinus, Book IX. Ad Dig. 18,1,8 pr.BOHGE, Bd. 1 (1871), S. 141: Verhaftung des Verkäufers aus einer emtio rei speratae.Neither a purchase nor a sale can be held to take place without property which can be sold; nevertheless, crops, and the yield of cattle can properly be made the object of purchase; and when the births have taken place, as the transaction is complete, the sale is understood to be concluded. If, however, the vendor contrived that the crops should not be raised, or the cattle not be born, an action on purchase will lie. 1A sale is, however, sometimes understood to be contracted without property being the object of the same, as, for instance, where a purchase is made dependent upon chance; which occurs where fish or birds which are yet to be caught, or money to be thrown to the populace, is bought. A purchase is also contracted even if nothing happens, because it relates to the expectation. Where the purchase has reference to money thrown to the populace, and the purchaser is deprived by eviction, of what he had secured, no obligation on the ground of purchase will be incurred; for the reason that this is understood to have been the intention of the parties.

The Same, On Sabinus, Book IX. If you sell a slave, knowing that he has the habit of running away, either to one of my slaves, or to a party whom I have directed to purchase him, and the latter is ignorant of the fact, and I am not; it is certain that you will not be liable to an action on purchase.

Pomponius, On Sabinus, Book IX. The purchase of my own property is not valid, whether I made it knowingly or not, but if I buy it while unaware of the fact, I can recover what I paid, because no obligation arose. 1It is no impediment to the sale, however, that only the usufruct of the property in question has been enjoyed by the purchaser.

Pomponius, On Sabinus, Book IX. Where the property purchased is jointly owned by the buyer and some one else, it should be said that the price must be diminished in proportion, and that the purchase will be valid with respect to a part of the property, and void with reference to the remainder. 1Where a slave, by the order of his master, in showing the boundaries of a field which has been sold, either by mistake or through fraud, includes more land than is embraced in the tract, it must be understood that he pointed out the boundary-lines where his master intended he should do so. Alfenus states the same opinion where possession is delivered by a slave.

Ad Dig. 18,1,20ROHGE, Bd. 23 (1878), Nr. 30, S. 87: Grenze zwischen Kauf- und Werkverdingung. Anfertigung und Ausstellung einer Maschine, Lieferung der Materialien.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 13.The Same, On Sabinus, Book IX. Sabinus gave it as his opinion that, if we wish anything to be made for us; as, for instance, a statue, a vase, or a garment, with the understanding that we shall give nothing but money for it; it is held that this is a true sale, and that it cannot be considered a hiring, if the material is not provided by the party for whom the article is to be made. The case is different where I furnish the ground upon which you are to build a house; since, in this instance, what constitutes the substance of the structure is provided by me.

Pomponius, On Sabinus, Book IX. For whatever contributes to the convenience of the vendor should be considered as affording more advantageous terms.

Pomponius, On Sabinus, Book IX. Even though the shares of the vendors were unequal.

Pomponius, On Sabinus, Book IX. Where land has been sold conditionally in this manner, and the vendor dies before the expiration of the time, or his heir appears afterwards, or does not appear at all, the land will belong to the first purchaser; because it cannot be understood that better terms have been offered which would be accepted by the owner, since he who sold the property is no longer living. Where, however, the heir appears before the expiration of the time, better terms can be offered to him. 1When a tract of land is sold subject to a condition of this kind, and more has been paid for it with the understanding that such accessories as have not been received by the first purchaser shall be delivered to the second; if these accessories are not less in value than the increase of price of the second sale, the former sale will be valid, because, if they are less, the terms of the second sale will not be more advantageous than those of the first. A similar estimate should also be made where a longer time for payment is granted the second purchaser, in order that the calculation of the interest may be made for the additional time.

Pomponius, On Sabinus, Book IX. If the right to inherit an estate is sold during the lifetime of the party who owns it, or if it is sold where it is worthless, the sale is void, because there was nothing in existence which could be sold.

Pomponius, On Sabinus, Book IX. If I purchase certain wine, that which is sour and mouldy being excepted, Proculus says that, although this exception is made for the benefit of the purchaser, if he is willing to accept wine that is acid, still, acid and mouldy wine will not be included in the sale; for whatever the purchaser is not willing to accept, he should not be compelled to take, for this is unjust, and the vendor should not be permitted to sell the wine to another.

Pomponius, On Sabinus, Book IX. The delivery of possession which should be made by the vendor is of such a nature that if anyone can legally deprive the purchaser of it, possession will not be understood to have been delivered. 1Where the purchaser stipulates for full delivery of possession, and brings an action on the stipulation, the profits will not be included in said action; because when anyone stipulates for the delivery of land, it is understood that full possession of the same must be delivered, and the delivery of the crops is not embraced in such a stipulation, as nothing more should be included in it than the mere transfer of the land; but an action on purchase for the delivery of the crops will lie. 2If I purchase a pathway, a driveway for cattle, a general right of way, or the right to conduct water through your premises, there is no delivery of mere possession; and therefore you should furnish me security that nothing will be done by you to prevent the exercise of my right. 3Ad Dig. 19,1,3,3ROHGE, Bd. 14 (1875), Nr. 44, S. 140: Anspruch des Käufers auf Ersatz des Schadens wegen Nichterfüllung seitens des Verkäufers nach dem höhern Werthe der Waare zur Zeit der Verurtheilung?Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 280, Note 15.When a vendor of wine is in default with reference to its delivery, he should be condemned to pay the highest price for said wine, either at the time of the sale, or when the damages were assessed in court, and also its greatest value either at the place where the sale was made, or where the suit was brought. 4Ad Dig. 19,1,3,4ROHGE, Bd. 4 (1872), S. 143: Zur Begründung der mora accipiendi genügt nicht die Bereiterklärung des Schuldners zur Erfüllung, sondern er muß auch wirklich dazu bereit gewesen sein.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 346, Note 2.When the purchaser is responsible for the default, the value of the wine must be estimated at the time when the action was brought, and with reference to the lowest price of the same at the place where this was done. Default is said to occur where the vendor is prevented by no difficulty from delivering the wine, especially if he has always been ready to deliver it. Moreover, it is not necessary to consider the price of the wine at the place where suit is brought, but where the wine is to be delivered, for if wine is sold at Brindisi, even though the contract may have been made elsewhere, it must be delivered at Brindisi.

Pomponius, On Sabinus, Book IX. A vendor will be liable to an action on sale, even if he was not aware that the measurement of the field was less than had been represented. 1If I should sell you a house for a certain amount, under the condition that you will repair another house belonging to me, I can bring an action on sale to compel you to repair it. If, however, it had only been agreed upon that you should repair said house, a purchase and sale, as Neratius says, is not held to have been made. 2Ad Dig. 19,1,6,2ROHGE, Bd. 11 (1874), Nr. 75, S. 227: Zahlung des Kaufpreises statt baar in Actien. Nebenvertrag.Moreover, if I sold you a vacant lot for a certain price, and delivered it, on the condition that after you had built a house you will re-convey half of the same to me; it is certain that I am entitled to an action on sale to compel you to build, and also to make the transfer to me after the building has been completed; for so long as any condition relative to the property sold is not complied with by you, it is established that I am entitled to an action on sale. 3If you purchase ground for a burial-place, and a house is built by the vendor near said place, before any interment is made there, you can have recourse to an action against him. 4Ad Dig. 19,1,6,4ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.If you sell me a vessel of any kind, and state that it is of a certain capacity, or of a certain weight, if it is deficient in either respect, I can bring an action on sale against you. But if you sell a vase to me, and guarantee it to be perfect, and it should prove not to be so, you must make good to me any loss which I may have sustained on that account; but if it is not understood that you guarantee it to be perfect, you will only be liable for fraud. Labeo is of a different opinion, and thinks it should only be held that the party must guarantee that the vase is perfect, where the contrary had not been agreed upon; and this opinion is correct. Minicius states that Sabinus gave it as his opinion that a similar guarantee should be understood to be made where casks were hired. 5If I sell you a right of way, you can only notify me to prove my title to the same where the land for which you wish to acquire the servitude is yours; for it would be unjust for me to be liable, if you could not acquire the servitude because you were not the owner of the adjoining land. 6If, however, I should sell you a tract of land, and state that a right of way was attached to the same; I will certainly be liable on account of the right of way, because I am bound as the vendor of both these rights of property. 7If a son under paternal control sells and delivers property to me, he will be liable, just as if he were the head of a household. 8If the vendor has committed any fraudulent act with reference to the property sold, the purchaser will be entitled to an action of purchase on that ground. For it is necessary to consider any fraud in the trial of the case, and whatever the vendor has promised to furnish he must deliver to the purchaser. 9If the vendor knowingly sells property which is encumbered, or which belongs to another, and it is set forth in the contract that he binds himself for nothing on this account, it is necessary to take into consideration his fraudulent conduct which ought always to be absent in the transaction of a sale which is one of good faith.

Pomponius, On Sabinus, Book IX. Where a tract of land is leased, and the tenant receives the implements for its cultivation after they have been appraised, Proculus says that the intention of the parties is that the tenant should have the implements, as being purchased; just as when any property, after having been appraised, is given by way of dowry.

Pomponius, On Sabinus, Book IX. Where the property sold has been recovered by anyone having a better title, an action on purchase can be brought with reference to anything which has been added to it, just as where those things which are expressly stated to be accessories to land which is purchased must simply be made good by the vendor if they are lost by eviction. 1A stipulation for double damages is said to be operative at the time the property is restored to the claimant; or where he has judgment rendered against him for the value of the property; or when the possessor, having been sued by the purchaser, is released. 2Ad Dig. 21,2,16,2ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.ROHGE, Bd. 10 (1874), S. 274: Der Verkäufer muß sich nicht nur zur Lieferung der Waare bereit erklärt haben, sondern auch wirklich dazu bereit gewesen sein, um den Käufer in Verzug zu setzen.Where a slave, on account of whom we have stipulated for the payment of double damages is lost by us because of his being a fugitive, or not being sound; the question arises can we, nevertheless, institute proceedings? Proculus says that it should be considered whether a difference does not exist where he was not mine at the time eviction took place, and where he had become mine at that time; for, in the case where he became my property, I immediately acquired an interest in the amount to which he was deteriorated, for this reason; and I at once acquired a right of action on the stipulation, which I cannot lose either by eviction, or by the death, manumission, or flight of the slave, or for any other similar reason. But if he had not become part of my property, I am none the poorer, because the slave is a fugitive; since he was not included in my estate. If, however, I stipulated that he was sound, and not accustomed to wander about, my interest only has reference to the present use, although it may be undetermined; just as if it was unknown how long I should have him, and whether anyone would recover him by eviction either from me, or from the person to whom I sold him and to whom I likewise gave a guarantee. The conclusion of Proculus is that I could only be sued on the stipulation after it had become operative, to the extent of my interest that the said slave should not be in the habit of running away.

The Same, On Sabinus, Book IX. No one can provide in his will that laws affecting it shall not apply to the same; for the reason that the obligation of the heir with reference to the payment of legacies cannot be affected by time, place, or condition.

Pomponius, On Sabinus, Book IX. If you owe me a certain slave on account of a legacy, or a stipulation, you will not be liable to me after his death; unless you were to blame for not delivering him to me while he was living. This would be the case, if, after having been notified to deliver him, you did not do so, or you killed him.

Pomponius, On Sabinus, Book IX. If a slave, owned in common by yourself and me, stipulates for a right of way of any description, without mentioning our names, and I alone have the adjoining land, he will acquire the right of way solely for me. If you, also, have a tract of land, the servitude will likewise be acquired for me in its entirety.

Pomponius, On Sabinus, Book IX. A release cannot be granted under a condition.