not difficult to imagine one who had negotiated an advantageous exchange, of which the other party had repented and refused to accept execution, striving to convince a. court that the agreement, being a variety of sale, was consensual in principle, and therefore binding on both parties from the moment it was concluded. One at any rate of the fundamental doctrines of sale was extended to exchange, viz. the liability of each party for undisclosed defects in the article which he had exchanged for the other 1. On the other hand, there is a material difference of rule in three particulars. We shall see that a purchaser could not rescind a contract of sale because the vendor had in fact no right to sell the article which was the subject-matter of the contract but it is essential to exchange that each party should vest in the other the property in the article which he conveyed. Secondly, in sale the purchased property as a rule is at the risk of the purchaser from the instant that the contract is concluded: if it perishes without fault in the vendor, he must pay the purchase money, and if he has paid it already he cannot recover it back: whereas, on an exchange, if A has given B what he promised, and what B was to give perishes without his fault before conveyance to A, the latter can recover back what he has conveyed himself3. Thirdly, in exchange the property passes on delivery, and before counterperformance by the other party: in sale, as we shall see, it passed only if in addition to delivery the price were paid or credit were given.

1 Sed si quis permutaverit, dicendum est utrumque emptoris et venditoris loco haberi et utrumque posse ex hoc edicto experiri : Dig. 21. 1. 19. 5: aliter, The Code Civil, Art. 1706.

2 Dig. 19. 4. 1. 3: 12. 4. 16: Code Civil, Art. 1704: Pothier, 621. 3 Dig. 12. 4. 16. The Contract having become consensual in the French law of Pothier's time, the rule is laid down in the contrary form by him, 625, and it is the same in the modern law: Code Civil, Art. 1707.

* Cum precibus tuis expresseris placitum inter te et alium permutationis intercessisse eumque fundum a te datum vendidisse, contra

and to Hiring and Letting.

Another contract, between which and sale the Roman lawyers were at one time unable to precisely define the limits, is Hire, in two of its three forms, viz. locatio conductio rei, and locatio conductio operis faciendi. Hire is consensual, and consequently cannot be distinguished, like exchange, from sale by reference to the moment at which the obligation is generated. Locatio conductio rei is the letting another have, for a pecuniary consideration, the use and fruition of a thing which one has in one's de facto possession. What differentiates it from sale is the letter's intention not to part permanently with his own interest. In most instances of letting, whether of land or of chattels, this is so obvious that no question as to the true nature of the transaction can arise: but there was one case in which there was a long controversy, namely, that of ager vectigalis. If land was let in perpetuity, subject to an annual rent, there were some who inclined to the view that the contract was sale, though Gaius1 says that according to the better opinion it was hire. The Emperor Zeno eventually ruled 2 that it should be governed by special rules of its own, though in principle it was judged to be a case of letting and hiring. The determining consideration was perhaps less the periodical accruing of the money payment than the fact, that the lessor had the right of avoiding the transaction as regards the future if the rent were in arrear, and in certain other events. We shall see that sometimes a sale was concluded on somewhat similar terms 3: but where a sale was thus avoided the avoidance related back to the moment of conclusion, which was not the case with the contract now under consideration.

Locatio conductio operis faciendi is where one man

emptorem quidem te nullam habere actionem perspicis, cum ab eo susceperit dominium, cui te tradidisse titulo permutationis non negasti, Cod. 4. 64. 4. pr.

1 iii. 145.

3 See Index, s. v. lex commissoria.

2 Cod. 4. 66. 1.

employs another at a fixed remuneration to make him some definite object, such as a carriage or a piece of furniture, out of materials belonging to, or to be procured by, the employer. If they belonged to or were to be procured by the employé, Cassius held that the transaction must be broken up into two distinct contracts; a purchase of the materials, and a hiring of the skill and labour. No one appears to have thought that it was hire pure and simple, but Gaius says1 that the prevalent opinion was (at least where the materials belonged at the time to the employé) that it was merely a sale, and this was finally accepted as the law 2. The true criterion is supplied by Javolenus, who says that it is sale if property passes 3. This however

1 iii. 147.

2 Inst. iii. 24. 4: Dig. 19. 2. 2. I. Demante, Cours analytique de Code Civil, commenting on Art. 1788, observes that (though the case is treated under the contract of louage), 'lorsque l'entrepreneur fournit la matière, il y a proprement vente de la chose, qu'il s'oblige à faire, par conséquent vente d'une chose future, vente nécessairement conditionnelle.'

3 Si ex fundo meo tegulas tibi factas ut darem convenit, emptionem puto esse, non conductionem: toties enim conductio rei alicuius est, quoties materia in qua aliquid praestatur in eodem statu eiusdem manet: quoties vero et immutatur et alienatur, emptio magis quam locatio intellegi debet: Dig. 18. 1. 65. Precisely the same question has arisen in English law, in consequence of § 17 of the Statute of Frauds, and it was finally settled, in the same way as at Rome, by Lee v. Griffin (30 L. J. Q. B. 252), which was an action brought by a dentist to recover £21 for two sets of artificial teeth made for a deceased lady, of whom the defendant was executor. Crompton J. said, 'When the contract is such that a chattel is ultimately to be delivered by the plaintiff to the defendant, when it has been sent, then the cause of action is goods sold and delivered. . . . I do not agree with the proposition, that wherever skill is to be exercised in carrying out the contract, that fact makes it a contract for work and labour, and not for the sale of a chattel :' and Hill J., ' When the subject matter of the contract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labour.' See the cases reviewed in Benjamin on Sale, pp. 96-110. He points out that in America the rule in Lee v. Griffin is not generally approved.

requires one qualification. Property may pass in consequence of the relation of principal and accessory having been established between something delivered by lessor to lessee, and something originally belonging to the latter: and where the thing delivered under the letting is principal, its owner becomes owner also of the accessory by the title of accession, not by a delivery in performance of a sale. Thus if a land owner gives a building lease, the house built under the lease is his, and yet the contract is locatio conductio only1.

1 Nec posse ullam locationem esse, ubi corpus ipsum non datur ab eo cui id fieret: aliter atque si aream darem ubi insulam aedificares, quoniam tunc a me substantia proficiscitur: Dig. 18. 1. 20. So too if one hires a builder to build one a house, it is locatio conductio only: quam insulam aedificandam loco, ut sua impensa conductor omnia faciat, proprietatem quidem eorum ad me transfert, et tamen locatio est locat enim artifex operam suam, id est faciendi necessitatem: Dig. 19. 2. 22. 2. So too, in English law, the consideration to be paid to the builder is not for a transfer of chattels, but for work and labour done and materials furnished in adding something to the land: Cotterell v. Apsley, 6 Taunt. 322: Tripp v. Armitage, 4 M. & W. 687 : Clark v. Bulmer, 11 M. & W. 243.

CHAPTER II.

WHO CAN BUY AND SELL.

Persons entirely unable to contract. Special restrictions: tutors and curators: public officials. Effects of Contract of Sale entered into by a pupillus without auctoritas: is he bound or not?

THE rules governing the capacity to enter a contract of sale are in substance merely part of the general law relating to contractual capacity, and for that reason do not here require any prolonged discussion. Some persons cannot either buy or sell, because they cannot make any sort of contract whatsoever. Others are, for special reasons, disabled by law from buying certain kinds of property. Lastly, though certain persons can enter into the contract either as vendors or purchasers, it does not, owing to the status of the contracting party, produce all its usual legal consequences.

entirely

Those who cannot contract at all are infants, that is to Persons say, children under the age of seven years; spendthrifts unable to judicially interdicted from the management of their own contract. affairs; and idiots and lunatics 3, except in lucid intervals *.

The following special restrictions on the capacity to purchase are mentioned in the authorities :

restric

(1) Tutors and Curators may not buy on their own Special account property belonging to those placed under their tions: charge, because, as Ulpian remarks, one cannot be both tutors and

1 Inst. iii. 19. 10.

3 Dig. 50. 17. 5.

2 Dig. 45. 1. 6.

Cod. 4. 38. 2.

Dig. 18. 1. 34. 7: Pothier, 13: Code Civil, Art. 1596.

5

6 Dig. 26. 8. 5. 2.

curators: