he received and held the money for the use of the purchaser of the inheritance1. The sale of the inheritance is deemed to be an assignment from the heir to the purchaser of all the choses in action of the deceased, and the purchaser can sue upon them, including even those which may have been due to the deceased from the heir himself, or from other persons to whom also he may have succeeded 2: but in a case of joint inheritance the purchaser of an heir's portion has no right to the portions of co-heirs accruing to his vendor after the sale to him by the latter of his own share in the succession 3. In addition to paying the purchase money, the purchaser of an inheritance is under an obligation to the vendor to pay the outstanding debts of the deceased, including those due to the vendor himself, and to regrant to the latter any servitudes over property of the deceased which might have been extinguished by the confusio resulting from the succession. On the same principle, if the vendor, while still having an unsettled claim against the purchaser of the inheritance, became heir to the latter, and sold his estate in turn, he could sue the second purchaser on the original claim 5. The purchaser is further under an obligation to the vendor to pay legacies and trusts, including those due to the vendor himself as heir to a legatee or other beneficiary under the will. Finally, he must reimburse him all costs which he has incurred in connection with the inheritance 7, such as funeral expenses, taxes on land, payment of debts, or debts for which he remains liable 10. 1 Pothier, 532. 3 2 Dig. 18. 4. 20. pr.: Pothier, 537. Arg. Dig. 18. 4. 2. 1: cf. Dig. 50. 17. 34. The point is very fully discussed by Pothier, 545. Purchase of a debt, or of a When we turn to consider the effects of a contract for the sale of an inheritance from the point of view of third parties who may be debtors or creditors of the estate, it is obvious that, so far as they are concerned, the contract not having made the purchaser heir instead of the vendor, it is res inter alios acta1. Hence the vendor-at any rate until notice-retains against the debtors of the estate all rights of action which he might have exercised in his own behalf, had he not sold the inheritance, though whatever he recovers by enforcing them he can be compelled to surrender to the purchaser. Similarly, as no one can be required to accept performance of an obligation from any one except the party bound2, the creditors, legatees, and other persons who could have sued the heir before the sale are not debarred from suing him still, and if they do so, he can only resort to his remedy over against the purchaser: quamvis heres institutus hereditatem vendiderit, tamen legata et fideicommissa ab eo peti possunt, et quod eo nomine datum fuerit, venditor ab emptore vel fideiussoribus eius petere poterit 3: and even though the purchaser has expressly promised the vendor to pay them, he can, if he pleases, refuse to let them sue him, for with them he has made no contract at all; except where the Treasury is the vendor, for in that case the purchaser alone can be sued 5. But every action that can be brought by the heir can be brought (alternatively) by the purchaser under the assignment implied in the sale The last peculiar subject of sale upon which a few observations are necessary is a debt or a right of action. Whether the action was in rem (for the recovery of whether property) or in personam (for the enforcement of an inpersonum, obligation) was immaterial: if it were in personam, the right of action, in rem or 4 Cod. 4. 39. 2. 1 Pothier, 529. 2 Arg. Cod. 2. 3. 2. 3 Cod. 6. 37. 2. Cod. 4. 39. 5. 7 Cod. 4. 39. 9. obligation might be absolute, conditional, or subject to a time limitation, and its source, whether contract or private delict, was, speaking generally, a matter of indifference 2, but the obligation must not be based on purely personal grounds, as in such cases as an actio injuriarum or a querela inofficiosi testamenti. A sale of the documentary evidence of a debt is deemed to be a sale of the debt and of the action for its recovery 3. lating to ment. The effect of the sale of a right of action is that it Rules reoperates as an assignment, entitling the assignee to sue assigneither by direct action in the name of the assignor, or in his own name by actio utilis: but the law relating to the form and effects of assignment does not belong to a treatise on the law of sale, except so far as such assignment for a money consideration is subject to the ordinary principles of that contract. The only points to which it seems at all necessary to call attention are the following. The sale of a right of action carries with it all securities 4, whether in the nature of mortgage or charge or of suretyship. The implied warranty by which the vendor is bound extends to the existence of the right of action, but not to the certainty of its being effectively enforced : 5 si nomen sit distractum, Celsus libro ix Digestorum scribit, 2 1 Dig. 18. 4. 17. Dig. 50. 16. 11 & 12. pr. 3 Eum qui chirographum legat, debitum legare, non solum tabulas, argumento est venditio: nam cum chirographa veneunt, nomen venisse videtur: Dig. 30. 44. 5; qui chirographum legat, non tantum de tabulis cogitat, sed etiam de actionibus quarum probatio tabulis continetur : appellatione enim chirographi uti nos pro ipsis actionibus palam est, cum, venditis chirographis, intellegimus nomen venisse: Dig. 32. 59. La vente ou cession d'une créance comprend les accessoires de la créance, tels que caution, privilège et hypothèque: Code Civil, Art. 1692. Dig. 18. 4. 23. pr. 7 Dig. 18. 4. 4 & 5. Qui nomen quale fuit vendidit, duntaxat ut sit, non ut exigi etiam aliquid possit, et dolum praestare cogitur1. That is to say, if the right assigned does not belong to the vendor at all, the ordinary principles apply which regulate the sale of a res aliena 2, and the fact that the action can be met by a peremptory exception puts it on a par with an action which does not exist at all 3: but in the absence of fraud or express warranty, the vendor is not liable if the person chargeable proves unable to satisfy any judgment which may be recovered. The sale of a debt or right of action is also governed by the ordinary principles as to periculum and commodum rei, which will be fully set forth in a later chapter. 1 Dig. 21. 2. 74. 3. Celui qui vend une créance ou autre droit incorporel doit en garantir l'existence au temps du transport, quoiqu'il soit fait sans garantie. Il ne répond de la solvabilité du débiteur que lorsqu'il s'y est engagé: Code Civil, Arts. 1693, 1694: cf. Demante, Cours analytique de Code Civil, pp. 194-199: Pothier, 559-572. 2 Dig. 18. 4. 8: Code Civil, Art. 1691. 3 Dig. 50. 17. 112. 4 Actiones autem eas non solum arbitrio, sed etiam periculo tuo tibi praestare debebo, ut omne lucrum ac dispendium te sequatur, Dig. 19. 1. 31. pr. CHAPTER V. HOW THE CONTRACT IS CONCLUDED. Necessity of complete agreement between the parties. No forms (such as writing) required for the validity of the contract. Justinian's enactment in Inst. iii. 23. pr. as to writing: it relates to negotiations, not to a sale definitely agreed upon. Contracts made by correspondence, and through agents. Arra or earnest. of com between ties. It is not necessary to say much of the mode in which Necessity the contract of sale was concluded, for the law left the plete parties to make it as they pleased. All that it required agreement was that they should be agreed upon the thing to be the parbought and the price to be paid, and that each should be aware of that agreement1. In fact, however, they must be agreed not only on the essential points of the bargain (merx and pretium), but on all its subsidiary or ancillary terms as well, in this sense, that if the negotiations have dealt with such terms, and any of them are still unsettled, or have been reserved for further consideration, the 1 Trois choses sont nécessaires pour le Contrat de Vente: une chose qui en soit l'objet, un prix convenu, et le consentement des contractans: Pothier, 3; (la vente) est parfaite entre les parties. . . . dès qu'on est convenu de la chose et du prix, quoique la chose n'ait pas encore livrée ni le prix payé : Code Civil, Art. 1583. 'Written evidence of the consent is required in Scotland to complete the contract of sale of land, of copyright, of ships, and of goods bonded for duties in the warehouse of the importer. But the sale of goods and merchandise in general is effectually proved by evidence prout de iure; parole, written, or confession. When the bargain is made by the principals without writing, the evidence of two witnesses, or one corroborated by circumstances, is necessary: or the letters of the parties, holograph, or signed by them, are good proof': Bell, § 89. |