Ulpianus, On the Edict, Book XXXII. Where an agreement is made between you and your co-owner to the effect that you can take the crops in alternate years, and your co-owner does not permit you to gather them during your year; it should be considered whether an action based on the contract of leasing or one for the partition of common property will lie. The same question arises where a joint-owner who agreed that he should enjoy the crop every second year turns in cattle, and causes the crop for the next year, which his co-heir had a right to gather, to be ruined? I think that the better opinion is that an action for the partition of common property should be brought, rather than one on the contract of leasing (for how can a lease exist when there is no rent involved?) or a civil action should certainly be granted for uncertain damages.

Ad Dig. 12,7,2ROHGE, Bd. 22 (1878), Nr. 77, S. 333: Condictio der dem Käufer vom Frachtführer gezahlten Entschädigung wegen Versäumung der Lieferfrist im Falle der Aufhebung des Kaufvertrags.The Same, On the Edict, Book XXXII. Where a fuller made a contract to clean some clothes, and the clothes being lost, he is sued on the contract and pays their value to the owner, and the owner afterwards finds the clothes; what kind of an action must the fuller bring to recover the amount which he paid? Cassius says that he not only can bring an action on contract, but also one for recovery against the owner. I think that he has, at all events, a right of action under a contract, but with respect to the suit for a recovery there is a question, because he did not pay what was not due; unless, indeed, we can hold that an action for recovery can be brought on the ground that the money was paid without any consideration, for the clothes having been found, this would seem to be the case.

Ad Dig. 16,2,11ROHGE, Bd. 25 (1880), Nr. 9, S. 38: Kompensation verzinslicher Forderungen.The Same, On the Edict, Book XXXII. When one party owes another a sum of money without interest, and the latter owes the other a sum bearing interest; it was decreed by the Divine Severus that interest was not due on the sums owed to one another by the two parties respectively.

Ad Dig. 17,2,69Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 405, Note 15.Ulpianus, On the Edict, Book XXXII. When a partnership is formed for the purpose of making purchases, and it is agreed upon that one of the partners shall furnish the others with provisions, and shall leave the transaction of the business to them, if he does not provide them with supplies, an action on partnership, as well as one on sale, can be brought against him.

The Same, On the Edict, Book XXXII. I think that the vendor is, nevertheless, entitled to an action for production, as well as to one on sale.

Ulpianus, On the Edict, Book XXXII. The Emperor Severus stated in a Rescript: “Just as where a house is sold under a condition in this manner, the profits must be restored to the vendor, in case of a better offer; so he will be entitled to retain the income from the property where he shows that it is not sufficient to pay the necessary expenses which the first purchaser proves that he has incurred in the meantime.” I think that the Emperor had the action on sale in his mind.

Paulus, On the Edict, Book XXXII. Where a tract of land has been sold conditionally upon payment of the purchase-money, that is to say, that the sale will be void if the price is not paid within a certain time; let us consider in what way the vendor can proceed with reference to the land as well as the profits which he has received therefrom, and also in case the land has become deteriorated through the act of the purchaser. The purchase, indeed, is at an end, but it has already been decided that an action on sale will lie, as is stated in the Rescripts of the Emperor Antoninus and the Divine Severus. 1Ad Dig. 18,3,4,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 323, Note 12.What Neratius says is, however, reasonable, namely, that sometimes the purchaser is entitled to the profits when he loses the price which he paid. Therefore, this opinion of Neratius, which is just, applies when the purchaser has paid a certain portion of the purchase-money. 2Ad Dig. 18,3,4,2ROHGE, Bd. 19 (1876), Nr. 30, S. 96: Frist für Ausübung des Rechts des Verkäufers. Bedeutung von statim debere.Papinianus very properly says in the Third Book of Opinions that as soon as the clause in the contract becomes operative, the vendor must determine whether he wishes the sale to be annulled, or whether he will demand the price; for if he chooses to annul the sale, he cannot afterwards adopt a different course. 3It is customary in a sale of this kind to also agree, “That if the vendor should sell the same tract of land, he can collect from the first purchaser the amount of the deficiency in the price.” Hence, in this instance, an action on sale can be brought against a first purchaser. 4Ad Dig. 18,3,4,4ROHGE, Bd. 5 (1872), S. 111: Rechtliche Bedeutung der Clausel in Feuerversicherungspolicen: „die Versicherung wird erst durch die gehörig geleistete Prämienzahlung giltig“.Marcellus, in the Twentieth Book, is in doubt whether a contract of this kind is operative where he who is notified to pay does not do so, or where, in fact, he does not tender the money. I think the better opinion is that he should tender it, if he wishes to be released from liability on the contract of sale. If, however, no one should appear to whom he can tender it, he will be secure.

Ad Dig. 18,4,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 397, Note 1.Ulpianus, On the Edict, Book XXXII. Where a claim is sold, Celsus states, in the Ninth Book of the Digest, that the vendor is not obliged to guarantee the solvency of the debtor, but only that he is a lawful debtor; unless something else has been agreed upon.

Ulpianus, On the Edict, Book XXXII. For it is admitted that a sale of the right of succession to an estate can be made in the following terms: “If I have any rights in the estate they are sold to you,” just as if the expectation of a right was purchased; for a sale in this way can be made of anything that is uncertain, as for instance, of whatever may be caught in a net.

Ulpianus, On the Edict, Book XXXII. Where a slave is sold under the condition that he is not to remain in a certain place, the party who sold him under this condition can remit that part of the contract, and allow him to remain at Rome. Papinianus says in the Third Book that this condition is to be observed on account of the safety of the master, to prevent his being exposed to danger.

The Same, On the Edict, Book XXXII. Ad Dig. 19,1,11 pr.ROHGE, Bd. 6 (1872), S. 267: Klage auf Lieferung vertragsmäßiger Waare nach Zurückweisung vertragswidriger neben der Klage auf Rückzahlung des voraus gezahlten Kaufgeldes.He who makes a purchase can avail himself of the action on purchase. 1In the first place, it must be remembered that, in a case of this kind, there should only be introduced what can properly be the subject of a guarantee, for since this is a bona fide action, there is nothing more consistent with good faith than that what was agreed upon between the contracting parties should be carried out. If, however, nothing was specially agreed upon, they will then be liable to one another for whatever naturally comes within the scope of the transaction. 2First, the vendor must transfer the property itself, that is to say, deliver it; and the ownership of said property will pass to the purchaser, if, in fact, it belonged to the vendor. If it did not belong to him, the vendor will only be bound in case of eviction, provided the price was paid, or security furnished for the same. The purchaser, however, can be compelled to pay the purchase-money to the vendor. 3Ad Dig. 19,1,11,3ROHGE, Bd. 10 (1874), S. 339: Die actio emti führt zur Auflösung des Geschäfts, wenn das Interesse eben in der Aufhebung des Vertrages besteht.Both Labeo and Sabinus hold that the restitution of the price in case of a defective title is also embraced in the transaction of purchase; and we approve their opinion. 4The vendor should also guarantee the soundness of animals and he who sells beasts of burden usually promises that they will eat and drink as they should do. 5Ad Dig. 19,1,11,5ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus. Täuschung und Uebervortheilung des andern Contrahenten.ROHGE, Bd. 12 (1874), Nr. 120, S. 424: Redhibitorische Klage beim absichtlichen Verleugnen eines Fehlers, welchen der Käufer bei genauerer Untersuchung entdecken konnte.Where anyone thinking that he is purchasing a female slave as a virgin, when she is a woman, and the vendor knowingly permits him to make this mistake; an action for the restitution of the price will, however, not lie in this instance, but an action can be brought on purchase for the rescinding of the contract, and when the price is refunded, the female slave should be returned. 6Where a person purchases wine, and pays a certain sum by way of earnest, and afterwards it is agreed that the purchase shall be void; Julianus says that an action on purchase can be brought for the recovery of the earnest, and that an equitable action on purchase will also lie for the purpose of annulling the sale. I propose the following question, namely: Suppose a ring is given by way of earnest, and that the sale is concluded, the price paid and the property delivered, but the ring is not returned; what proceeding should be instituted? Should it be a personal suit for recovery, where something has been given for a certain purpose and the purpose has been accomplished; or ought an action on sale to be brought? Julianus says that an action on sale will lie. It is certain that a personal action for recovery can be brought, for the ring is now in the hands of the vendor without any reason. 7Neratius says that the vendor will be liable to the purchaser, if he sells him a slave as not being in the habit of running away, even if he is not aware of the fact. 8Neratius says that the same rule applies, even if you should sell a slave belonging to another, and that you are obliged to guarantee him to be free from liability to prosecution for theft, or damages of any kind; and that it has generally been held by all authorities that an action on purchase will lie, to enable the buyer to be furnished security to hold the slave without interference, and, also, that possession may be delivered to him. 9He also says that if the vendor does not deliver the slave, judgment shall be rendered against him for the amount of the interest of the purchaser; and if he does not furnish security, judgment must be rendered against him for the largest amount for which a vendor can be liable. 10Neratius also says that, in all these instances, security must be given for the greatest amount that can be recovered; that is to say, in case of subsequent action, the damages must be assessed after deduction has been made of the amount of the security. 11He also very properly holds that if security is not furnished for one article, when it has been done for others, judgment must be rendered without any deduction. 12Ad Dig. 19,1,11,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 10.He also says in the Second Book of Opinions: “Where a purchaser has judgment rendered against him in a noxal action, he can only recover in an action on purchase the least amount for which he could be released.” He likewise holds that, if an action on stipulation was brought by the purchaser, whether the latter has defended the noxal action or not, for the reason that it was evident that the slave had committed damage, he can, nevertheless, proceed by an action on stipulation, or by one on purchase. 13Neratius also says that a vendor should, in delivering the property, place the purchaser in such a position that he will have the advantage in a contest for its possession. Julianus, however, in the Fifteenth Book of the Digest, states that the property should not be held to be delivered, if the better title to possession is not enjoyed by the purchaser. Therefore, an action on purchase will lie unless this advantage is conferred. 14Cassius says that a party who has obtained an assessment of damages founded upon a double stipulation cannot recover anything on account of other property, with reference to which it is customary to provide security in the case of sales. Julianus thinks that where there is no double stipulation, an action on purchase should be brought. 15Finally, he says in the Tenth Book on Minicius, “That if anyone sells a slave under the condition that he will pay double damages within thirty days if the title is not good, and that he shall not, after that time, be liable for anything,” and the purchaser does not require the amount to be paid within the designated period, the vendor will not be liable, provided he ignorantly sold a slave belonging to another; for, in this instance, he is only compelled to guarantee the purchaser that the title will not be disputed by himself or by his heirs. Where anyone knowingly sells a slave belonging to another, he holds that the vendor is not free from fraud and therefore will be liable to an action on purchase. 16I think that the opinion of Julianus with reference to pledges is also perfectly correct; for where the creditor lawfully sells a pledge, and afterwards the purchaser is deprived of it by someone with a better title, he will not be liable, and he cannot be sued in an action on purchase for the recovery of the price; for this point has been settled by several Imperial Constitutions. It is clear that the vendor must give a guarantee against fraud; for he expressly binds himself in this respect, but even though he does not do so, and sells the property, being aware that he had no claim on it, or that it did not belong to the party who pledged it to him; he will be liable to an action on purchase, because we have shown that he should be responsible for bad faith. 17If anyone should sell property, and should state at the time that its accessories will pass to the purchaser, everything which we have said with reference to the sale of property will apply in this instance, except that the vendor will not be liable for double damages in case of eviction, but will only be required to maintain the purchaser in possession, and this not only applies to himself but to all others. 18Ad Dig. 19,1,11,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 391, Note 38.Where a person who makes a sale agrees to maintain the purchaser in possession, let us see to what extent he becomes liable. I think that it makes considerable difference whether he promises that the purchaser shall not be disturbed either by him or by persons descended from him, or whether he agrees that his possession shall not be disputed by anyone whomsoever; for where he makes the promise for himself he is not held to warrant the title against others. Hence, if the property is recovered by someone with a better title, or a stipulation is entered into, the vendor will not be liable under the stipulation; or, if one should not be made, he will not be liable on the ground of purchase. Julianus, however, states in the Fifteenth Book of the Digest that, even if the vendor plainly states that the purchaser shall have undisturbed possession, so far as he and his heirs are concerned; the defence can be made that the party is not liable on purchase for the amount of the interest of the buyer, but will only be liable for the refunding of the price. He also says that the same rule applies where it is clearly stated in the contract of sale that no warranty is given against eviction, and, that in case eviction takes place, the vendor will be liable for the price paid, but not for any indemnity, as contracts made in good faith do not permit an agreement to be entered into by which the purchaser may lose the property, and the vendor retain the price; unless, as he says, anyone should consent to abide by all the agreements above mentioned, just as is the case where the vendor receives the money and the merchandise does not come into the hands of the purchaser; as, for instance, where we buy a future cast of a net by a fisherman, or whatever game may be taken in snares laid by a hunter, or any birds caught by a fowler; for even if nothing is taken, the purchaser will, nevertheless, be required to pay the price. The contrary, however, must be held with reference to the agreements above mentioned, unless the vendor knowingly sold the property of another; for then, in accordance with the opinion of Julianus quoted above by us, it must be held that he will be liable to an action on purchase, for the reason that he committed a fraudulent act.

Ad Dig. 19,1,13ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus. Täuschung und Uebervortheilung des andern Contrahenten.Ulpianus, On the Edict, Book XXXII. Ad Dig. 19,1,13 pr.ROHGE, 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.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 393, Note 1.Julianus, in the Fifteenth Book, makes a distinction with reference to rendering a decision in an action on purchase between a person who knowingly sold the property, and one who ignorantly did so; for he says that anyone who sold a flock which is diseased, or a defective beam, and did so ignorantly, must make the claim good in an action on purchase, to the extent that the buyer would have paid less if he had been aware of said defects. If, however, he was aware of them, and kept silent, and deceived the purchaser, he will be obliged to make good all the loss which the purchaser sustained from said sale. Therefore, if a building should fall down on account of the defect in the price of the timber aforesaid, its entire value must be estimated in assessing damages; or if the flock should die through the contagion of the disease, the purchaser must be indemnified to the extent of the interest he had in the sale of the property in good condition. 1Ad Dig. 19,1,13,1ROHGE, 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.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 393, Note 1.Moreover, where anyone sells a slave who is a thief, or one who has the habit of running away, and does this knowingly, he should indemnify the purchaser to the amount of his interest in not being deceived. If, however, he was ignorant of this when he sold him the slave, he will be liable with respect to a slave who has the habit of running away to the extent of the lesser amount which the purchaser would have paid if he had known that he had such a habit; but he will not be liable at all, where the slave is a thief. The reason for this distinction is, that a fugitive slave cannot be kept in custody, and the vendor is held liable, as it were, on the ground of eviction; but we can restrain a slave who is a thief. 2Ad Dig. 19,1,13,2ROHGE, Bd. 22 (1878), Nr. 44, S. 200: Interesse eines Aktienzeichners, der durch Täuschung des Kommittes zu Einzahlungen veranlaßt worden.A great deal is included in the clause which we mentioned, namely: “To the amount of the interest of the purchaser in not being deceived,” as, for instance, if he had solicited others to run away with him, or had stolen property at the time he fled. 3What would be the case, however, if the vendor was not aware that the slave was a thief, and had given the assurance that he was frugal and faithful, and sold him at a high price? Let us see if he would be liable to an action on purchase. I think that he would be liable, but suppose that he was ignorant of the character of the slave? He ought not to assert so positively something that he did not know. There is then a difference between this instance and that where the vendor knew the character of the slave, for he who knows should warn the purchaser that he is a thief, but in the other instance, he should not be so ready to make a rash statement. 4Where the vendor committed a fraudulent act in order to sell the property at a higher price; for example, if he lied concerning the skill of the slave, or with reference to his peculium, he will be liable in an action on purchase, for the additional amount which he was paid for the slave on the assumption that he had private property, or was skilled in some trade. 5On the other hand, Julianus also says that Terentius Victor died leaving his brother his heir, and that a steward abstracted from the property of the estate certain articles, documents, and slaves, and after these were taken away, the estate was easily made to appear to be of little value; and the steward persuaded the heir to transfer to him his rights in the same. Would he be liable to an action on sale? Julianus says that an action on sale will lie only for the extent to which the estate would have been more valuable if the said property had not been removed. 6Julianus also says that the vendor is usually responsible for fraud, and he explains this by means of the following case. Where a vendor knew that the land which he offered for sale was charged with legacies to several municipalities, and stated in the advertisement that it was only indebted to one municipality, but afterwards inserted in the contract of sale that, if any tributes, taxes, or anything by way of imposts, or for the repair of highways, should be due, the purchaser must make payment, perform said acts, and be responsible; the vendor will be liable to an action on purchase as having deceived the purchaser. This opinion is correct. 7But as it was, in fact, suggested that certain guardians had acted in this way who sold property belonging to a ward, he says that the question is whether the ward should be held liable for the fraud of his guardians? If, indeed, the said guardians sold the property, there is no doubt whatever that they are liable to an action on purchase. Where, however, the ward sold the property by their authority, he will only be liable for the amount by which he profited by the transaction, and judgment should be rendered against the guardians for the remainder, without reference to limitation of time, because liability for fraudulent acts of his guardians does not attach to the ward after he arrives at puberty. 8Ad Dig. 19,1,13,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 321, Note 2.When the buyer brings an action on purchase, the price should be tendered by him; and therefore, even though he only tenders a portion of the price, an action on purchase will not lie, for the vendor has a right to retain the property which he sold, by way of pledge. 9Wherefore, the question arises where part of the price is paid and the property is delivered, but is afterwards lost through proof of a superior title, can the purchaser proceed by an action on purchase to recover the entire price of the property, or merely what he paid? I think the better opinion is that he can recover only what he paid; otherwise, he would be met by an exception on the ground of fraud. 10Where a field is sold on which the crops have already matured, it is settled that they must also be delivered to the purchaser; unless some other agreement has been made. 11If, however, the field was leased, the rent must be paid to the party who leased it. The same rule applies to urban estates, unless some express agreement is made to the contrary. 12Where, however, the vendor had acquired any rights of action for injury committed against the property; for instance, for the prevention of threatened injury, or for the care of rainwater, or under the Lex Aquilia, or an interdict against clandestine or violent possession, they must be assigned to the purchaser. 13Again, where any profit has been obtained from the labor of slaves, or from transportation by beasts of burden, or ships, it must be turned over to the purchaser, as well as any increase of the peculium of the slaves; but not, however, where any gain has been acquired by means of the property of the vendor. 14Titius sold a tract of land containing ninety jugera, and it was stated in the contract of sale that there were a hundred jugera in said tract, and before the measurement was taken ten jugera were added to it by alluvial deposit; I concur in the opinion of Neratius, who held that if the vendor was aware of the deficiency when he sold the land, an action on purchase could be brought against him, even though ten jugera had been added to the tract; because he was guilty of fraud which was not removed by the addition. If, however, he made the sale ignorantly, an action on purchase will not lie. 15If you sell me a tract of land belonging to another, and it afterwards becomes mine by a good title, I will, nevertheless, be entitled to an action on purchase against you. 16With respect to those things, however, which it is customary to furnish with the property purchased, I think that the vendor will not only be liable for fraud but also for negligence; as Celsus states in the Eighth Book of the Digest that, when it is agreed that the vendor shall collect any rent which is past due, and pay it to the purchaser, in case of his failure to do so, he will not only be liable for fraud but also for negligence. 17Celsus also says in the same book: You sold your share of a tract of land which you held in common with Titius, and before you delivered possession you were compelled to join issue in an action in partition. If the tract of land was entirely adjudged to your fellow-owner, you can recover from Titius on this account the amount which you are obliged to pay to the purchaser; but if the entire tract is adjudged to you, he says that you can transfer it all to the purchaser, in such a way, however, that he must pay to Titius the amount for which judgment has been rendered against you in this matter, and that you must provide security against eviction with reference to the part which you sold; but so far as the remainder is concerned, you will only be responsible for fraud. For, indeed, it is only just that the purchaser should be placed in the same position as if the action for partition had been brought against him. If, however, the judge divided the tract between you and Titius by certain boundaries, there is no doubt that you must deliver to the purchaser whatever has been adjudged to you. 18Where a vendor has given anything to a slave who was sold before his delivery took place, this also must be turned over to the purchaser, as well as any estates, and all legacies acquired by the slave; nor shall any distinction be made with reference to him by whom these things were left. Moreover, whatever has been obtained by the labors of the slave must be delivered to the purchaser, unless the day of delivery has been deferred by agreement, in order that the proceeds of the labors of the slave may belong to the vendor. 19The vendor is entitled to an action on sale to recover from the purchaser all that the latter is obliged to give him. 20All the matters hereinafter stated are included in this action; first, the price for which the property was sold, as well as the interest on the same after the day of delivery, for when the purchaser enjoys the property, it is perfectly just that he should pay interest on the purchase-money. 21We must understand delivery of possession to take place to mean even where the possession is precarious; for we should only consider whether the purchaser has the power to gather the crops. 22Again, the vendor can also recover any expenses incurred with reference to the property sold, by bringing an action on sale; for example, if something was expended on the buildings which were disposed of; as Labeo and Trebatius both say that an action on sale can be brought on this ground. The same rule applies where expense has been incurred for the cure of a sick slave before his delivery, or where anything has been expended in instruction, which it is probable that the purchaser would wish to be so expended. Labeo goes still further, and says, that where anything has been expended on the funeral of a dead slave, it must be recovered in an action on sale, provided the slave died without any blame attaching to the vendor. 23Moreover, if, when the property was sold, it was agreed that a solvent debtor should be furnished by the purchaser, the vendor can proceed by an action on sale to compel him to do this. 24If it was agreed between the purchaser and the vendor of certain lands, that, if the purchaser or his heir should sell said lands for a higher price than he had paid, that he would refund to the vendor half the amount of the excess; and the heir of the purchaser should sell said lands at a higher price, the vendor can, by means of an action on sale, recover the amount of his share of the excess for which the property had been sold. 25Ad Dig. 19,1,13,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 18.If an agent should make the sale and furnish security to the purchaser; the question arises whether an action should be granted in favor of the owner, or against him? Papinianus, in the Third Book of Opinions, thinks that an equitable action on purchase can be brought against the owner in the same way as an Institorian Action, provided the owner directed the property to be sold. Hence, on the other hand, it must be said that an equitable action on purchase can be brought by the owner. 26Papinianus says in the same place, that he gave it as his opinion that, where it had been agreed upon that if the price was not paid at the appointed time, double the amount should be paid to the vendor, such a provision seemed to have been added in violation of the constitution, because it exceeded the lawful interest; and he also stated that the case of a conditional rescission of a sale was different from this one; for, in that instance, illegal interest is not agreed upon, and the terms of the contract are not considered dishonorable. 27Where anyone, acting in collusion with my agent, makes a purchase from him, can he bring an action on purchase against me? I think he can, to the extent of compelling me either to abide by the purchase, or annul it. 28Where anyone takes advantage of another under the age of twenty-five, we will grant him an action on purchase, to the same extent as that which we mentioned in the former instance. 29Where anyone makes a purchase from a ward without the authority of his guardian, the contract is only valid on one side; for he who makes the purchase is liable to the ward, but he does not make the ward liable to him. 30Where a vendor reserves a lodging, for instance, that it shall be permitted for a tenant to reside in the house, or that a tenant, who was a farmer, shall have a right to the crops for a certain time; Servius thinks the better opinion to be that an action on sale will lie. Finally, Tubero says that, if the said tenant causes any damage, the buyer, by bringing an action on purchase, can compel the vendor to proceed against the tenant in an action on lease, and pay the purchaser whatever he recovers. 31Where a house is sold or devised, we are accustomed to state that everything is included in the house which is considered to be part of the same, or is used for the benefit of it; as, for instance, the stone edge of a well.

Ulpianus, On the Edict, Book XXXII. Well-ropes and basins, projecting gutters, and also the pipes connected with the latter, although they may project a considerable distance beyond the building, belong to the latter as well as the gutters. Fish, however, which may be in a reservoir, do not belong either to the house or to the land;

Ulpianus, On the Edict, Book XXXII. Nothing belongs to the land unless it is attached to the soil. It must not be forgotten that many things form part of a building which are not attached to the same, as for instance, locks, keys, and bolts. There are also many things buried in the earth which do not belong to the land, or to a farm-house, for example, wine-vats and presses, for since these are rather considered implements, they also are attached to the buildings. 1Moreover, it is settled that wine, and crops which have been gathered, do not belong to the house. 2Where a tract of land is sold or devised, the manure-heaps and straw belong to the purchaser or the legatee, the wood, however, belongs to the vendor or the heir; for the reason that the former do not constitute part of the land, even though they may have been collected for the benefit of the same. With reference to the manure-heaps, a distinction is made by Trebatius, who holds that if they have been prepared for the purpose of fertilizing the ground, they belong to the purchaser, but if for the purpose of sale, the vendor is entitled to them, unless some other agreement has been made; and that it makes no difference whether the manure remains in a stable or has been placed in a heap. 3Any paintings attached to the wall, as well as any marble encrusted upon the same, belong to the house. 4Nets about the columns and couches around the walls, as well as hangings of haircloth, are not parts of the house. 5Moreover, anything which has been prepared for a house but has not yet been finished, even though it may be placed in the building, is, nevertheless, not considered to be a part of it. 6Where, in a sale, reservation is made of everything which has been taken out, or cut down; sand, lime, and other things of this kind are held to have been taken out, and trees which have been felled, charcoal, and other similar articles are considered to have been cut. Gallus Aquilius, however, whose opinion is given by Mela, states very properly that a provision with reference to articles which have been taken out and cut down is included, without effect, in a contract of sale; because if they are not expressly sold, an action can be brought to compel them to be produced; as a vendor is not required to give security with reference to any material which has been cut, or for stone or sand, any more than he is for other things which are more valuable. 7Labeo states, as a general proposition, that whatever is in a building for its perpetual use belongs to it, but that which is only for temporary use does not; as, for instance, pipes which are only attached to it for a time, do not belong to the house, but if they are fastened to it permanently, they form a part of it. 8Reservoirs lined with lead, wells, and the covers of the latter which are placed upon the land, but are not attached to it, it is settled belong to the house. 9It is also settled that small images, columns, and figures through the mouths of which water is accustomed to flow, belong to the house. 10Anything which has been removed from a building with the intention of being replaced, forms a part of it; but whatever has been prepared to be placed upon it does not. 11Stakes which have been prepared for a vineyard do not form part of the land before they have been placed in position, but they do belong to it if they have been purchased with the understanding that they shall be so placed.

Ulpianus, On the Edict, Book XXXII. If anyone rents me a house or a tract of land which has been purchased in good faith, and he is evicted from the same without fraud or negligence on his part; Pomponius says that the lessor will, nevertheless, be liable to an action on lease, in order that the lessee may be enabled to enjoy the property rented to him. It is clear that if the owner will not allow him to occupy the premises, and the lessor is ready to furnish him another house which is just as convenient, he says that it would be perfectly just for the lessor to be released from his obligation. 1What Marcellus stated in the Sixth Book of the Digest may be added, namely: “If an usufructuary rents a tract of land subject to an usufruct, for five years, and dies; his heir will not be liable to permit him to enjoy the same, any more than a lessor would be liable to a lessee after a house has been destroyed by fire. But whether the lessee will be liable to an action on the lease to collect the rent during the time he was in the enjoyment of said property, is a question asked by Marcellus; just as he would have been compelled to pay, if he had leased the services of a slave subject to an usufruct, or a lodging. He states that the better opinion is that he will be liable; and this is perfectly just. He also asks if the lessee should incur any expense on account of the land through the expectation of enjoying it for five years, whether he can recover the same. He says that he cannot do so, because he should have foreseen that this would take place. But what if the usufructuary had not leased the land to him as such, but as the owner of the same? He will certainly be liable, for he deceived the lessee; and this the Emperors Antoninus and Severus stated in a Rescript. They also stated that, where the house has been destroyed by fire, the rent must be paid for the time that the building stood. 2Julianus says in the Fifteenth Book of the Digest, that, where anyone leases land on the condition that if anything should happen to it through the exertion of irresistible force, he will be responsible for the same; he must abide by the contract. 3Where, in the terms of a lease of land, the lessee was notified to be careful about fire, and some accident caused a conflagration, he will not be compelled to make good the loss. But where damage is caused by the negligence of the lessee, for which he was responsible, he will be liable. 4Ad Dig. 19,2,9,4ROHGE, Bd. 5 (1872), S. 406: Beim Kaufe nach Gewicht ist für die Preisbestimmung der Zeitpunkt der Ablieferung entscheidend.The Emperor Antoninus, together with his father, stated in a Rescript with reference to a flock of goats, which a party had hired, and which had been stolen from him, “If it can be proved that the robbers drove away the goats without any fraud on your part, you will not be compelled to be responsible for the occurrence in an action on lease, and you can recover any rent for the time following the theft as being money paid which was not due.” 5Celsus also states in the Eighth Book of the Digest that want of skill should be classed with negligence. Where a party rents calves to be fed, or cloth to be repaired, or an article to be polished, he must be responsible for negligence, and whatever fault he commits through want of skill is negligence, because he rents the property in the character of an artisan. 6If you lease me a house belonging to another, which has been bequeathed or given to me, I am not liable to you for the rent in an action on lease. Let us see, however, whether anything is due for the time which has elapsed before the bequest was made. I think that the rent should be paid for that time.

Ulpianus, On the Edict, Book XXXII. Let us see whether the tenant is liable for the negligence of his slave, and of those to whom he has sublet the property, and also to what extent he is responsible; shall he surrender the slave by way of reparation, or will he be liable in his own name; and, with reference to those to whom he has sublet the premises, must he only assign to the owner any rights of action which he may have against them, or will he be accountable just as if the negligence was his own? It is my opinion that he is responsible in his own name for the negligence of his sub-tenants, even though nothing had been agreed upon with reference to this: provided, however, he committed negligence in subletting the property to such persons, either his own slaves or tenants. Pomponius approves this in the Sixty-third Book On the Edict. 1If it was agreed upon at the time of the lease that the tenant could not have fire, and he, nevertheless, has it, he will be liable, even though an accident may cause a conflagration, because he had no right to have it. The rule is different where he is permitted to have fire which will not cause injury, for, in this instance, he is allowed to have it provided it causes no damage. 2The lessee must also be careful not to injure the property, or any right attaching to the same, nor to permit this to be done. 3Where a party hired his services for the transportation of wine from Campania, and then, a controversy having arisen between himself and another, he sealed the casks with his own seal and that of the other person, and placed the wine in a warehouse; he will be liable to an action on hiring to return the possession of the wine to his employer, without any dispute, unless the employee was guilty of negligence. 4It was agreed upon between a lessor and a lessee that hay should not be placed in a building in a city. It was, nevertheless, placed there, and a slave, having afterwards set fire to the hay, killed himself. Labeo says that the lessee is liable to an action, because he himself was the cause of the disaster, by bringing in the hay in violation of the terms of the lease.

Ulpianus, On the Edict, Book XXXII. The question is also asked, where the driver of a vehicle, while trying to pass others, overturns one, and injures or kills a slave, what course must be pursued? I think that an action on hiring will lie against him, for he should have been more careful. Moreover, a prætorian action under the Lex Aquilia will be granted him. 1If the master of a ship should receive a cargo to be taken to Minturnæ, and, as his ship was unable to ascend the river, he should transfer the merchandise to another which was lost at the mouth of the river; in this instance, the first master will be liable. Labeo says that if he was not guilty of negligence, he will not be liable; but if he acted against the consent of the owner, or transferred the cargo at a time when he should not have done so, or loaded it in a vessel which was less seaworthy than his own; an action on hiring can be brought against him. 2Where the master of a ship takes it into a river without a pilot, and, a storm having arisen, he cannot manage the ship and loses it; the owners of the cargo will be entitled to an action on hiring against him. 3If anyone leases a slave for the purpose of instructing him, and takes him to a foreign country where he is either captured by the enemy, or loses his life, it is held that an action on hiring will lie, provided he did not hire him for the purpose of taking him into a foreign country. 4Julianus also says in the Eighty-sixth Book of the Digest that if a shoemaker, being dissatisfied with a boy employed by him should strike him on the neck with a last so hard as to destroy his eye, an action on hiring can be brought by his father; for although masters are permitted to inflict light punishment, still, this is immoderate. We have stated above that an action under the Lex Aquilia will also lie. Julianus denies that an action on injury can be brought, because the party did not commit the act for the purpose of causing injury, but in the course of instruction. 5Ad Dig. 19,2,13,5ROHGE, Bd. 13 (1874), Nr. 25, S. 77: Haftpflicht des conductor operis für die culpa seiner Gehilfen.Where a precious stone has been given to an artisan for the purpose of being set or engraved, and it is broken; if this was caused by any defect in the stone, an action on hiring will not lie, but where it occurred through want of skill, it can be brought. It must be added to this opinion, “unless the workman assumed the risk,” for then, even if the accident was caused by a defect, an action on hiring will lie. 6If a fuller should receive clothing to be cleaned, and mice gnaw it, he will be liable to an action on hiring, because he ought to have provided against this. If a fuller changes cloaks, and gives one to one person which belongs to another, he will be liable to an action on hiring, even though he did so ignorantly. 7A tenant left the premises on the approach of an army, and the soldiers afterwards removed the windows and other things from the house; if the tenant did not notify the owner when he left, he will be liable to an action on hiring. Labeo says that if he could have resisted, and did not do so, he will be liable; and this opinion is true. But if he could not notify the landlord, I do not think he would be liable. 8Where anyone rents measures, and a magistrate orders them to be destroyed; if they were false, Sabinus makes a distinction where the lessee was aware of the fact, and where he was not. If he knew that they were false, an action on hiring will lie, otherwise not. If the measures were correct, he will only be liable where he was to blame for the act of the Ædile. This opinion is also held by Labeo and Mela. 9Two lessees can be held liable for the entire amount involved. 10Where it is included in the contract for the hire of labor, that if the article is not completed by a certain time it may be given to someone else, the first lessee will not be liable to an action on hiring unless the article is given to someone else under the same contract; nor can this be done until the day fixed for its completion shall have passed. 11Ad Dig. 19,2,13,11ROHGE, Bd. 18 (1876), Nr. 19, S. 80: Relocatio tacita bei Schiffs-Frachtverträgen.Where, after the term of his lease has elapsed, the tenant remains on the premises, not only is a renewal of the lease held to have been made, but also any pledges which have been given as security are still considered to be encumbered. This, however, is only true where another party had not encumbered the property at the time of the original lease, otherwise his fresh consent will be necessary. The same rule applies where lands have been leased to the government. What we have stated, namely, that the tenant is held to have made a new lease through the silence of both parties, must be understood to mean that where they were silent, the lease is renewed for a year, but this does not apply to ensuing years, even though the term of the lease should, in the beginning, have been five years. Moreover, if no contrary agreement was made during the second year after the end of the term of five years, the lease will be considered to be renewed for that year, as the parties are held to have consented for the year during which they kept silent. This rule must also be observed afterwards for every ensuing year. Another rule is applicable to urban estates, however, for a tenant is liable for all the time he occupies the premises, unless a certain term fixing the duration of the lease is mentioned in the written instrument.

The Same, On the Edict, Book XXXII. The action on hiring is granted to the lessee. 1Moreover, the action will, to a certain extent, lie in the following cases; for instance, where the party is unable to enjoy the property which he has leased, perhaps because possession of an entire field or of a portion of the same has not been given him; or a house, or a stable, or the place where flocks must be kept, has not been repaired; or where something is not furnished which was agreed upon under the terms of the lease; an action on hiring will lie. 2Let us consider whether the lessor is obliged to do anything for the lessee, where bad weather has caused the latter loss. Servius says that the lessor must indemnify the lessee for any violence which could not be resisted; as, for instance, that caused by the overflow of rivers, by birds of different kinds, or by any similar accident, or where an invasion of enemies takes place. If any defect should arise with reference to the property itself, the loss must be borne by the tenant; as, for example, where wine becomes sour, or the crops are ruined by weeds. If, however, an earthquake occurs, and destroys all the crops, the loss will not be sustained by the tenant, for he cannot be compelled to pay the rent of land in addition to the loss of the seed. Where, however, the olive crop has been spoiled by fire, or this has taken place through the unusual heat of the sun, the owner of the land must bear the loss; but if nothing extraordinary happens, the tenant will be responsible for it. The same must be said where an army that was passing by removed anything in mere wantonness. But if a field should be so ruined by an earthquake that nothing remains of it, the loss must be borne by the owner, for he is obliged to furnish the land to the lessee in such a condition that he can enjoy it. 3Where a tenant alleged that a fire had taken place on the land, and asked that the rent be remitted; it was stated in a Rescript, “If you cultivated the land, you are entitled to reasonable relief on account of the occurrence of an unexpected fire.” 4Ad Dig. 19,2,15,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 220, Note 7.Papinianus says in the Fourth Book of Opinions that where a landlord has remitted the rent to a tenant for one year on account of sterility, and there was a great yield during the following year, the landlord has lost nothing on account of remitting the rent, and he can even claim the rent for the year which he remitted. He gave the same opinion with reference to the loss under a perpetual lease. If, however, the landlord remitted the rent for a year on account of sterility, as a gift, the same rule will apply, as this is rather an agreement than a donation. But what if he remitted the rent because of sterility during the last year of the lease? It is held to be more correct that, if the preceding years were fruitful, and the landlord was aware of the fact, he should not call the tenant to account for the one which was sterile. 5It is stated in a Rescript of the Divine Antoninus that no attention should be paid to a tenant who complains of the smallness of the crops. It is also stated in another rescript, “You are claiming something unusual, when you ask that the rent shall be remitted to you on account of the age of the vines.” 6Ad Dig. 19,2,15,6ROHGE, Bd. 22 (1878), Nr. 46, S. 210: Kürzung des bedungenen Frachtgeldes, wenn das Schiff die bedungenen Sitzplätze nicht enthält.Again, where a certain individual, in the case of the loss of a vessel, demanded what he had paid for transportation on the ground that it was a loan; it was stated in a Rescript by the Emperor Antoninus that the Imperial Procurator had not improperly demanded the freight from the owner of the vessel, since he had not performed his duty in transporting the property. This rule must likewise be observed in the case of all other persons. 7Ad Dig. 19,2,15,7ROHGE, Bd. 22 (1878), Nr. 46, S. 210: Kürzung des bedungenen Frachtgeldes, wenn das Schiff die bedungenen Sitzplätze nicht enthält.Wherever there is any ground for the remission of rent for the above-mentioned reasons, the lessee cannot recover any interest to which he may be entitled, but he will be released from the payment of rent in proportion to the time. Finally, it has been already stated that the loss of the seed must be borne by the tenant. 8It is clear that if the owner of the property does not allow the lessee to enjoy it, either because he himself has leased it, or for the reason that someone has leased the property of another acting as his agent, or as if it was his own, he must indemnify the lessee to the extent of his interest. Proculus held this opinion where a party pretended to be an agent. 9Julianus says in the Fifteenth Book of the Digest that sometimes an action on hiring is brought for the purpose of releasing the parties to the contract; as, for instance, where I leased land to Titius, and he died after appointing a ward his heir, and, as the guardian had caused the ward to reject the inheritance, I leased the said land to another party at a higher rent; and afterwards the ward obtained possession of the estate of his father. In an action on hiring, he can recover nothing more than to be discharged from liability on his contract, for I had a good reason for again leasing the property:

Ulpianus, On the Edict, Book XXXII. He also says that the ward is entitled to an action against his guardian, if he ought not to have rejected the estate.

Ulpianus, On the Edict, Book XXXII. But you should add to the opinion of Julianus that if I was in collusion with the guardian I would be liable to an action on hiring to the extent of the interest of the ward. 1Where anyone rents defective casks, not knowing that they are such, and the wine afterwards leaks out, he will be liable to the amount of the party’s interest, and his ignorance will not be excusable. This opinion was held by Cassius. The case is different if you rented a tract of land for pasturage in which poisonous herbs grew; for, in this instance, if any of the cattle died, or were depreciated in value, and you knew of the existence of the herbs, you must indemnify the lessee to the amount of his interest; and if you were ignorant of their existence, you cannot collect the rent. This was also held by Servius, Labeo, and Sabinus. 2We must consider where anyone leases a tract of land what implements he must furnish the lessee, and if he does not do this, whether he will be liable in an action on lease. A letter of Neratius to Aristo upon this point is extant which states that casks must be furnished the tenant, as well as a wine-press and an olive-press, equipped with ropes, and if they are lacking, the owner must provide them, and he must likewise repair a press if it is out of order. If any of the implements become damaged through the fault of the tenant, he will be liable to an action on lease. Neratius says that the tenant is also required to provide the vessels which we use for pressing the olives. If the oil is pressed out by means of baskets, the owner must furnish the press, the windlass, the baskets, the wheel, and the pulleys by which the press is raised. He must also furnish the brazen kettle in which the oil is washed with warm water, as well as the other necessary utensils for handling the oil, together With the wine-casks, which the tenant must cover with pitch for present use. All these things shall be provided in this manner, unless some other special agreement has been made. 3Where the landlord inserted in the lease that he should be entitled to a specified amount of grain at a certain price, and he refuses to accept it, and is unwilling to make any deduction from the rent, he can bring an action to recover the entire amount; but the result will be that, in the discharge of his duty, the judge must take into account the interest which the lessee had in delivering the grain, rather than in paying money by way of rent. The same must likewise be held where an action on the lease is brought. 4What action will lie where a tenant adds a door or anything else to a house? The better opinion is that held by Labeo, namely, that an action on lease will lie to permit the tenant to remove it; provided, however, that he gives security against threatened injury, lest he may render the house of less value in some respect when he removes what he added, but only that he will restore the building to its original condition. 5If a tenant should bring a metal chest into a house, and the owner subsequently makes the entrance smaller; it is a fact that an action on lease, as well as one for the production of property will lie against the owner, whether he was aware or ignorant of the fact. It is the duty of the judge to compel him to furnish a passage to enable the tenant to remove the chest, of course at the expense of the landlord. 6If anyone should lease a house for a year, and pay the rent for the entire term, and, six months afterwards, the house falls down, or is consumed by fire; Mela very properly says that he will be entitled to an action on lease for the recovery of the rent for the remaining time, but not to one for the recovery of money which was not due; for he did not pay more by mistake, but that he might be benefited with reference to the lease. The case is different where anyone leases property for ten aurei and pays fifteen; for if he paid this sum by mistake, being under the impression that he had rented the property for fifteen aurei, he will not be entitled to an action on lease, but can only sue for the recovery of the money; for there is a great deal of difference between one who pays by mistake, and one who pays the entire rent in advance. 7Where anyone makes a contract for the transportation of a woman by sea, and afterwards a child is born to her on the ship, it has been established that nothing is due on account of the child; for the transportation was not more expensive, nor did the child consume anything which was provided for the use of those navigating the vessel. 8It is clear that an action on hiring can also pass to an heir. 9Where a certain copyist leased his services and the party who had contracted for them died; the Emperors Antoninus and Severus stated the following in a Rescript, in answer to an application of the copyist: “Since, as you allege that you are not to blame for not having furnished the services for which you were hired to Antoninus Aquilia, it is only just that, if you did not receive any salary from another during the year, the contract should be carried out.” 10Papinianus states in the Fourth Book of Opinions that, where an envoy of the Emperor dies, his attendants must be paid their salaries for the remainder of their time of service; provided the said attendants were not, during that time, in the employ of others.

Ulpianus, On the Edict, Book XXXII. Ad Dig. 19,3,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 383, Note 6; Bd. II, § 384a, Note 2.The action for the estimation of the value of property was invented for the purpose of removing doubt. For when property which had been appraised was given to another to be sold, it was doubtful whether an action on sale based on the estimated value would lie; or whether one on lease would be available, as I seemed to have leased the property for the purpose of sale; or whether one on hiring could be brought, since I hired the services of the party to sell it, or whether recourse could be had to an action on mandate? It, therefore, seemed to be betto be delivered as rent was required to be specifically indicated, and not merely a share of what might be produced. 1The estimate of property, however, is made at the risk of the person who receives it, and hence he must either restore the property itself in an undamaged condition, or pay the amount of the appraisement agreed upon.

The Same, On the Edict, Book XXXII. It is asked by Labeo, “If I give you horses that I have for sale to be tried, under the condition that you will return them within three days if they do not please you, and you, being a performer in the circus, ride said horses and win the prize, and then refuse to buy them; can an action on sale be brought against you?” I think the better opinion is that an action should be brought for the construction of the contract, for it was agreed upon between us that you should take said horses for the purpose of trying them gratuitously, and not that you should enter them in a race. 1The following question is asked by Mela: “If I let you have some mules for the purpose of trying them, with the understanding that if they please you you will buy them, but if they do not please you that you will pay me a certain sum for each day, and the mules are stolen by robbers within the time given for the trial; what must be made good, the money and the mules, or the mules alone?” Mela says that it makes a difference whether the purchase had already been concluded, or was to be concluded afterwards, for if the transaction was complete, suit can be brought for the price; but if not, it can only be brought for the mules. He does not mention, however, what actions are available, but I think that if the purchase was perfected, an action on sale will lie; but if this were not the case, that one can be brought like that granted against the circus-performer. 2If when you wish to purchase silver plate, and a silversmith brings some to you and leaves it, and, as it does not suit you, you give it to your servant to be returned, and it is lost without fraud or negligence on your part; the loss must be borne by the silversmith, because it was sent for his benefit as well as yours. Labeo says that it is certain that you are responsible for the negligence of those to whom the articles have been committed for safe-keeping and delivery; and I think that an action for the construction of the contract will lie in this instance.

Ulpianus, On the Edict, Book XXXII. The question arises whether he who sold the slave should give a surety against eviction, who is commonly called a second surety. It has been settled that he need not do so, unless it has been agreed upon. 1Where a guardian makes a sale in the name of a minor, and eviction follows, Papinianus says in the Third Book of Opinions that an equitable action will be granted against him for whose benefit the guardianship is being administered. He adds, however, that this only applies to what was included in his property at the time. Let us see whether the ward will be liable for the entire amount if the guardian should not be solvent. This I think to be the better opinion, for a contract made with a guardian is not void.

Ulpianus, On the Edict, Book XXXII. Double the amount of the price must be promised by the vendor to the purchaser, unless some other arrangement is made, still, it is not necessary for him to give security, unless a special agreement is entered into to that effect, but the vendor will only be liable. 1Moreover, where he stated that double damages must be promised, it should be understood that this does not apply to every kind of transaction, but only to such where the articles sold are of great value; as, for instance, jewels, or precious ornaments, or silken garments, or anything else which is not sold at a low price. By the Curule Edict the vendor is also ordered to furnish security in the case of the sale of a slave. 2Where the buyer through mistake stipulates for simple instead of double damages, and he is deprived of the property by eviction, Neratius says that he can recover the deficiency in the stipulation by means of an action on purchase, provided the buyer does everything required by the stipulation. For if he does not do so, he can, only in an action on purchase, compel the vendor to promise him what was omitted in the stipulation in the first place.

Ad Dig. 50,16,187Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 17.The Same, On the Edict, Book XXXII. The expression, “Money collected,” relates not only to payment, but also to the delegation of the claim.