Scævola, Digest, Book VII. Ad Dig. 18,1,81 pr.ROHGE, Bd. 15 (1875), Nr. 20, S. 49: Verkauf einer Sache unter Compensation des Kaufgeldes mit einer Schuld des Verkäufers. Kauf, Hingabe an Zahlungsstatt?Titius, when he borrowed a certain sum at interest, pledged or hypothecated lands, and gave Lucius as surety, whom he promised to release from liability within the next three years, and, if he did not do so at the appointed time, and the surety paid the debt, he directed him to hold, as purchaser, the lands which he had encumbered to his creditors. I ask if Lucius, as surety, should not be released by Titius and should pay the creditor, whether he would be the purchaser of the aforesaid lands? The answer was that if the surety was to have the land as a purchase, and not on account of the obligation, the purchase was made under a condition, and an obligation was contracted. 1Lucius Titius promised to furnish a hundred thousand measures of grain annually from his own land to that of Gaius Seius. Lucius Titius afterwards sold his land, and inserted the following words in the contract: “The land of Lucius Titius is sold today, and is to be held subject to the same rights and the same conditions as it is now held by the vendor.” I ask whether the purchaser is responsible to Gaius Seius for the delivery of the grain. The answer was that, according to the facts stated, the purchaser is not bound to furnish it.

Scævola, Opinions, Book VII. A woman sold certain lands to Gaius Seius, and received a sum of money by way of earnest, a time having been fixed for the payment of the remainder of the amount; and it was agreed that if the purchaser should not comply with the terms of the contract he should lose the earnest, and that the property should remain unsold. Upon the appointed day the purchaser, in the presence of witnesses, offered to pay the balance of the purchase-money, and sealed the bag containing the same with the seals of all the parties, but the vendor was not present. The next day the purchaser was notified by the Treasury, in the presence of witnesses, not to pay the woman until a claim of the Treasury was satisfied. The question arose whether, in this instance, the lands should not be recovered by the vendor in accordance with her agreement. The answer was that, in accordance with the facts stated, the purchaser had not committed any act in violation of the contract of sale.

The Same, Digest, Book VII. Seius bought a tract of land from Lucius Titius under the condition that the property would remain unsold if payment was not made by a certain time. Seius, having paid a portion of the price at once, and the vendor having died, he was appointed guardian of the minor children of Titius, along with others, but did not pay the remainder of the price to his fellow-guardians, in compliance with the contract, and did not place the amount among the assets of the guardianship. The question arose whether the purchase was void. The answer was that, in accordance with the facts stated, the sale was held to be of no effect. 1The purchaser of certain lands, suspecting that Numeria and Sempronia would raise a controversy with reference to the sale of the same, agreed with the vendor that a certain portion of the price should remain in his hands until a surety should be furnished him by the vendor. The vendor afterwards inserted the following provision into the contract, namely: “That if all the money was not paid by a certain time, and the vendor did not wish the lands to be sold, they would remain unsold.” In the meantime, the vendor gained his case against one of his female adversaries, and made a compromise with the other, so that the purchaser might obtain possession of the lands without any dispute. The question arose, as no surety was furnished, and the entire sum of money was not paid at the appointed time in accordance with the terms of the contract, whether the land remained unsold? The answer was that if the agreement had been that the money should not be paid before a surety had been furnished on account of the sale, and nothing had been done by the purchaser to prevent the execution of the contract, the latter portion of the same could not be enforced.

Scævola, Digest, Book VII. A certain man sold Pamphilus and Stichus, and inserted in the contract of sale that, as he had sold the said slaves at a low price, they should be subject to no servitude but that of Seius, and that, after his death, they should remain in freedom. The question arose whether the slaves, concerning whom this agreement had been made between the purchaser and the vendor, would become free by mere operation of law, after the death of the purchaser? The answer was that, in accordance with the Constitution of the Divine Hadrian, promulgated with reference to this point, if Pamphilus and Stichus, the slaves in question, were not manumitted, they would not become free. Claudius says that the Divine Marcus decided that where a condition of freedom was inserted in the contract of sale, the slaves would become free in six months, even if they were not manumitted, although the vendor had deferred their freedom until the death of the purchaser.

Scævola, Digest, Book VII. A creditor held a tract of land which was encumbered to him, and also had in his possession receipts for taxes previously paid by the debtor which had been deposited with him; and he sold the land to Mævius on the condition that the purchaser should pay any taxes which might become due. The said land was sold by the collector of taxes of the district in which it was situated, on account of the taxes that had already been paid; the same Mævius bought it and paid the amount. The question arose whether the buyer could sue the vendor in an action on purchase, or in any other action, and compel him to surrender the receipts for the payments above mentioned. The answer was that the buyer could proceed, by an action on purchase, to compel the documents in question to be produced. 1A father having given to his daughter, by way of dowry, a certain tract of land whose value had been appraised, the said land was found to be encumbered to a creditor. The question arose whether a son, who had accepted the estate of his father, would be liable to an action on purchase to obtain a release from the creditor, and furnish the property free of encumbrance to the husband, as the daughter, content with her dowry, had declined to accept her share of the estate. The answer was that he would be liable. 2It was agreed between the vendor and the purchaser of an office in the army, that the salary due to the former should be paid to the purchaser. The question arose as to the amount which the purchaser should demand, and what the vendor should pay to the purchaser in a transaction of this kind? The answer was that the vendor should assign the extraordinary right of action which he held on this account. 3A party who had a house on the sea-shore built a wall so that the shore, as well as the house, was enclosed by it, and then sold the house to Gaius Seius. I ask whether the shore which was enclosed with the house by the vendor also belonged to the buyer by the right of purchase? The answer was that the house would be sold in the same condition in which it was before the sale was concluded.

Scævola, Digest, Book VII. A tenant, although it was not included in the terms of his lease that he should plant vines, nevertheless, did plant them on the land, and, on account of the yield of the same, the field was rented for ten aurei more every year. The question arose whether the owner could sue the tenant, who had been ejected from the land for non-payment of rent, on the ground that rent was due; or whether he could recover the expense profitably incurred by planting the vines where an exception on the ground of fraud was filed. The answer was that he could either recover the expense, or that he would be liable for nothing more. 1A man leased for a certain sum a vessel to sail from the province of Cyrene to Aquileia, it being loaded with three thousand measures of oil and eight thousand bushels of grain. It happened, however, that the vessel, while loaded, was detained in said province for nine months, and the cargo was confiscated. The question arose whether the freight agreed upon could be collected by the owner of the vessel from the party who hired it, in accordance with the contract. The answer was that, in conformity to the facts stated, this could be done.