6. POMPONIUS libro IX ad Sabinum.

Sed Celsus filius ait hominem liberum scientem te emere non posse nec cuiuscumque rei si scias alienationem [prohibitam] esse: ut sacra et religiosa loca aut quorum commercium non sit, ut publica, quae non in pecunia populi, sed in publico usu habeantur, ut est campus Martius.

1. Si fundus annua bima trima die ea lege uenisset, ut, si in diem statutum pecunia soluta non esset, fundus inemptus foret et

for eviction and the passage in the Institutes (iii. 23. 5), is to be read in the same sense. Ulpian, Paul, and Modestine, on the other hand, appear to indicate the contrary opinion (LL. 22-24; 34, 1; 62, 1 infra, and notes). Savigny (Obl. ii. § 81), with many able commentators, denies that there is any contradiction in the passages cited; but even among those who agree in denying that there is an antinomy,' there is no consensus of opinion as to the meaning of the authorities; some hold that the validity of the sale is generally recognised, others find the opposite doctrine in all the texts.

L. 6 pr. Some inferior MSS. insert prohibitam' before esse: 'if you know that the law declares them incapable of alienation.' Some editors get the same sense by inserting 'non.' A construction for the genitive 'cuiuscumque rei' may be got either by supplying emptionem esse' from what precedes, or by repeating 'alienationem.'

Res sacrae and religiosae are defined in Inst. ii. 1. 7–9; Gaius, ii. §§ 6, 9. Res publicae are of two kinds: (1) some belong to the people in the same sense as things belong to a private owner (e.g. the ager publicus- crown lands,' as we say), and these were said to be in patrimonio seu pecunia populi—they were capable of alienation, and were the subject of contract quite commonly; (2) others are in usu publico, i.e. owing to their nature or destination no private person can own them, but all may use themthey cannot be alienated so long as they retain their character.

§ 1. This is an example of the pact known as lex commissoria, which entitles one party to a contract to treat it as a nullity in case the other party fails to fulfil his engagements at the proper time (D. 18. tit. 3. passim). In practice it was imposed on the buyer,

6. POMPONIUS.

But Celsus the younger says that you cannot knowingly purchase a free man, nor anything whatever which you know to be inalienable; for example, sacred and religious spots, or those which are withdrawn from commerce, as public places, which are not held to belong patrimonially to the community, but to be dedicated to the public use, e.g. the Campus Martius.

1. If lands are sold to be paid for by instalments in one, two, and three years, under the condition that, if the price be not paid

in the interest of the seller, as a security for payment of the price in credit sales, and it could not be enforced by the buyer against the will of the seller. As soon as the price was due and unpaid, the seller could, without making a formal demand for payment, cancel the sale, or at his option hold the buyer to it, and sue him for the price and damages; but when he had once declared his choice in any way he could not go back upon it. In case of doubt, this agreement was treated as a resolutive condition.

Where the price was payable by instalments, the right to resile generally arose as soon as one of the instalments was in arrear, so here and D. 4. 4. 38 pr.; but it was quite permissible to make the agreement inoperative till the date of the last instalment had passed without payment. Cp. D. 13. 7. 8, 3, which exemplifies the different ways of conferring on the pledgee the right to sell a pledge given in security of an annual payment, and supplies two forms of such a clause (1) si qua pecunia sua die soluta non erit, the effect of which was to give a power of sale after default of the first payment, and (2) nisi sua quaque die pecunia soluta esset, which suspended the power of sale till the last instalment was due and unpaid.

This point may be illustrated by the class of questions arising in our Courts upon contracts for the sale of goods to be delivered and paid for by instalments. It is not settled whether default in making delivery of the first or any subsequent instalment goes to the root of the consideration and justifies the buyer in cancelling the contract, apart from any special evidence of the intention of parties; but the failure of the buyer to pay the first, or any subsequent instalment of the price, is not regarded as enough

B

ut, si interim emptor fundum coluerit fructusque ex eo perceperit, inempto eo facto restituerentur, et ut, quanti minoris postea alii uenisset, ut id emptor uenditori praestaret: ad diem pecunia non soluta, placet uenditori ex uendito eo nomine actionem esse. nec conturbari debemus, quod inempto fundo facto dicatur

Freeth v. Burr

per se to entitle the seller to rescind the contract. (1874) L. R. 9 C. P. 208 was the case of a contract to deliver pig-iron in two parcels, half in two weeks, the remainder in four: payment, net cash fourteen days after delivery of each parcel. Owing to delay of six months in delivering the first parcel, the buyers refused to pay for it, claiming a right to set off the loss that they had sustained through being obliged to procure other iron; but they still urged the delivery of the second parcel. The seller treated the refusal to pay as a breach and an abandonment of the contract, and declined to deliver any more. Held he was wrong and liable in damages for the non-delivery; and observed that in cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is, whether the acts or conduct of the one do, or do not, amount to an intimation of an intention to abandon the contract.' Cp. Mersey Steel Co. (1874) 9 App. Ca. 434; S. G. B. § 33; Turnbull (1874) 1 R. 730; Bell, Prin. § 108.

The lex c. had certain penal consequences, for the buyer is (by implication of law, where not by express agreement) bound to forfeit what he has given as earnest, and what he has paid to account of the price, but is allowed to retain, as compensation for his loss, the fruits he has meantime gathered (D. 18. 3. 6; ib. 4, 1; ib. 8).

The seller might even go so far as to stipulate by a special covenant that the vendee should be responsible to him for any loss sustained on a re-sale of the goods, and for the produce or fruits that had accrued from the subject pendente conditione: as in the case here figured, and in D. 18. 3. 4, 3.

The actio venditi was the proper action for enforcing restoration of the subject and its accessions, and all other claims arising under the pact; for the action on a bonae fidei contract extended to all matters embraced in any adjected pact, and was competent even where it had been agreed that the contract should be off in

by the term fixed, the sale shall be held cancelled; and if the purchaser in the interval crops the lands, he shall account for the value upon the rescission of the sale, and shall make up to the vendor any loss he may subsequently sustain by reselling for a less price, it is settled that, if the price be not paid by the term appointed, the vendor can bring an action on the sale. The statement that an action on sale will lie, although the sale is declared to be off, need not occasion any difficulty; for in all cases of sale the intention is more important than the language:

a certain event-this was the opinion of Sabinus; but Proculus, considering it absurd that an action intended to secure the execution of a contract should be used to annul it, held that an actio praescriptis verbis was the proper procedure (D. 19. 5. 12). The Sabinian view, followed with some hesitation by Paul (D. 18. 5. 6), and adopted here with more confidence by Pomponius, prevailed in the end. Cp. D. 18. 3. 4 pr.; 19. 1. 11, 3.; ib. 6. The pact (he argues) was intended simply to release the vendor from his contractual engagements on the expiry of a certain period, and to invest him again with the free disposal of his property, but not to have retroactive effect so as to annul all that had gone before, as if the contract had never been made. The continued efficacy of the contract is plain, both from the penal consequences which followed, and from the consideration that, if it had been avoided to all intents, the lex commissoria as an adjected pact would have been equally void.

It is a disputed question whether the seller was entitled to bring a rei vindicatio, i.e. to claim the thing sold as his, on the ground that the property in it (which passed to the buyer upon delivery where credit was given) had been revested in him as the direct result of his exercising his right to rescind the sale. The inain authorities on the point are the Rescripts in C. iv. 54. 1–4, and they seem to yield a negative answer. Of course where the agreement was to operate as a suspensive condition, the seller as undivested owner could maintain a real action against the person in possession.

The tendency of modern law is more favourable to the transfer of property and the security of commerce; it rejects the idea of any implied condition or hypothec for security of the price after

actionem ex uendito futuram esse: in emptis enim et uenditis potius id quod actum, quam id quod dictum sit sequendum est, et cum lege id dictum sit, apparet hoc dumtaxat actum esse, ne uenditor emptori pecunia ad diem non soluta obligatus esset, non ut omnis obligatio empti et uenditi utrique solueretur.

2. Condicio, quae initio contractus dicta est, postea alia pactione immutari potest, sicuti etiam abiri a tota emptione potest, si nondum impleta sunt quae utrimque praestari debuerunt.

7. ULPIANUS libro XXVIII ad Sabinum.

Haec uenditio serui'si rationes domini computasset arbitrio' actual delivery; and even express conditions, of the nature of the lex commissoria, to enable the seller to rescind a completed sale and reclaim the goods after they have been delivered into the actual or constructive possession of the buyer, in the event of his failure to pay the price by an appointed day, are jealously interpreted. A resolutive condition of this kind is treated in Scots law as a personal obligation only, effectual between the vendor and vendee, but of no avail against third persons, e.g. the creditors of the vendee or bona fide purchasers from him; but if the condition as to payment be so conceived as to be truly suspensive of the sale, the property does not pass till the condition is purified, and therefore it cannot be attached by the buyer's creditors (Bell, Com. i. 260). In England, the vendor's sole remedy against the vendee who has got possession of his goods, and wrongfully neglects or refuses to pay for them, is, like that of other creditors, by personal action for the price: he cannot treat the contract as rescinded, because the vendee makes default in paying at the appointed time (Martindale v. Smith (1841) 1 Q. B. 389), a stipulation as to the time of payment not being deemed by English law to be of the essence of the contract (S. G. B. § 11). Similarly, by the civil law, the actio venditi was the only competent process for a vendor who had sold on credit, and given delivery without securing himself by the lex commissoria. C. iv. 30. 8; C. iv. 44. 14; Pothier, Vente, § 475.

But as regards the earlier stages of sale, before the buyer is in actual possession, our law studies the interest of the unpaid seller by giving him certain rights against the goods: (1) if the seller is