There has been some conflict of opinion as to whether this passage was based on a special law aimed against auctioneers or whether the case of an auctioneer was taken merely as an illustration of a universal principle. Assuming the latter view to be correct (and subsequent quotations will show that if the principle had not become general by the time of Gaius it soon became so), the passage indicates both that there was ground for an exception if the seller sought to recover the price without delivering the subject-matter of the sale, and further that by special agreement as to the respective times of performance of the parties, such an exception could be met. Presumably in case of an action by the buyer, the seller would have been given relief on like principles.

§ 896. Passages in Digest and Code.

There are several passages in the Digest and Code, throwing light on the topic. The jurists to whom the passages are attributed all flourished about 200 A. D; so that by that time the general theory at least of the mutual dependency of the obligations arising from one of the nominate consensual bilateral contracts must have been recognized. The most important passages are as follows:

"If, of the farms which you have bought, any have been mortgaged and have not been delivered, you shall have an action ex empto in order that they may be released from the creditor. Likewise, if the buyer sues for the price in an action ex vendito you will set up the exception of fraud." 5

"If one who has bought a harvest of growing grapes is forbidden by the seller to gather them he can make use of this exception against the seller, if the latter sues for the price: 'if this money for which the suit is brought was promised for the harvest which has arrived at maturity and has not been delivered. . 196

aliter emptori res traderetur quam si prætium emptor solverit."-Gaius, IV. 126a.

* Dernburg, Pandekten, II. § 20, supports the former view; Bechmann, Der Kauf, I. 570, the latter.

5 C. 8. 44. 5. Ex prædiis, quæ mercata es, si aliqua a venditore obligata et

necdum tradita sunt, ex empto actione consequeris, ut ea a creditore liberentur. Idem etiam fiet, si adversus venditorem, ex vendito actione prætium petentem, doli exceptionem opposueris. Antoninus.

D. 19. 1. 25. Qui pendentem vindemiam emit si uvam legere prohibea

One may likewise defeat a suit for the price brought by one who has sold goods belonging to another by setting up the exception of goods not delivered, although he who assumed to sell them has already paid the price to the owner. He has in this case recourse against the owner. It is the same, according to Pedius, in the case of one who has sold goods while assuming to act in our affairs."7

9

"When the buyer brings an action against the seller, the price ought to be offered by the buyer, and although he offers a part of the price, not yet does he have an action against the seller; for the seller can retain the thing which he sold, as if it were a pledge." A few other passages are referred to in this connection, but their bearing on the subject seems somewhat remote; and it must be admitted that the materials are too meagre to make it profitable to discuss in much detail the theories of Roman jurists on the reciprocal rights and duties in the performance of bilateral contracts of sale, hiring, partnership and agency." 10 It seems evident enough, however, that non-performance by the plaintiff of his promise in such a bilateral contract afforded generally a defence. The particular cases stated relate to sales exclusively, but the assumption made by the writers, that the principle was a general one and that sales furnished the readiest illustration, seems fair. It is a probable supposition too, that the defendant's defence was taken by exception, rather than by denial of any allegations tur a venditore, adversus eum petentem pretium exceptione uti poterit "si ea pecunia, qua de agitur, non pro ea re petitur, quæ venit neque tradita est. . . ."-Julianus.

7 D. 44. 4. 5. § 4. The passage in full is: Si servus veniit ab eo, cui hoc dominus permisit, et redhibitus sit domino: agenti venditori de pretio exceptio opponitur redhibitionis, licet jam is qui vendidit dominum pretium solverit (etiam mercis non traditæ exceptione summovetur et qui pecuniam domino jam solvit) et ideo is qui vendidit agit adversus dominum. Eandem causam esse Pedius ait eius, qui negotium nostrum gerens vendidit.-Paulus.

8 D. 19. 1. 13. § 8 Offerr ipretium ab emptore debet cum ex empto agitur, et ideo etsi pretii partem offerrat, nondum est ex empto actio: venditor enim quasi pignus retinere potest eam rem quam vendidit.-Ulpianus.

D. 18. 1. 34. § 3; D. 18. 4. 22; D. 18. 5. 7. § 1; D. 21. 1. 57; D. 21. 1. 59; C. 2. 3. 21.

10 This has, of course been attempted by the German writers, but the results seem hardly adequate to the learning expended upon the problem. The best brief commentary on the passages quoted and others is contained in André, Die Einrede des nicht erfüllten Vertrages (Leipzig, 1890), pp. 30 et seq.

expressed or implied in the plaintiff's pleading. That is, the plaintiff's performance was not strictly a condition precedent to his right of action, but his obligation to perform was the basis of a counter-right on the part of the defendant, and if this obligation was not fulfilled, it effected the destruction of the plaintiff's claim." Whether there was a special exception recognized as exceptio mercis non tradita, the words used in the extract quoted above from Paulus or whether it was regarded as a kind of exceptio doli, as might be inferred from the passage quoted from the Code, is not so clear; though both assumptions are often made.12

§ 897. Inconsistency of dependency and rule governing risk of loss.

Besides the negative difficulty due to the slightness of the materials which the Corpus Juris affords, there is a positive difficulty in working out a complete theory. In a contract of sale the buyer was bound by the Roman law to pay the price though the subject-matter of the sale were destroyed by accident before the transfer of title.13 From this rule it might be supposed that the theory of the Roman jurists was that in order to make out an excuse for non-performance by one party to a bilateral contract, not merely failure but unexcused failure to perform by the other side was essential— that it was the wrongful breach of contract, not the mere non-receipt of what was promised, that afforded ground for an exceptio.14 But this supposition does not square with the

11 This proposition, though now generally admitted, was formerly much doubted in Germany and stress was laid on the words in the last passage cited from the Digest, "nondum est ex empto actio" as showing that performance by the plaintiff was a condition precedent to his right of action. But it was shown by Heerwart, Archiv für die Civil. Praxis, vii. 344, 345, that analogous expressions are used in many other places in the Digest where an exception was unquestionably necessary to protect the defendant. See also Dernburg, Pandekten, ii. § 20, note 4.

12 The exception is classed by modern writers as a kind of exceptio doli, though frequently with recognition that the classification is not wholly fortunate. André, 122. Larombière, Théorie des Obligations (ed. 1885), III. 266; Giorgi, Teoria delle Obbligazioni (4th ed.), IV, 207. See also an article on the exceptio doli by Römer in Zeitschrift für Handelsrecht, XX. 48.

13 Inst. of Justinian, lib. III. tit. XXIII. 3. The subject of risk of loss after a contract of sale in the Roman Law is discussed, infra, § 947.

14 And so the rule is often stated, e. g.,

rule in regard to risk in contracts of leasing and hiring, whether of property or of personal services. In these cases non-performance, though excused by impossibility, was a defence to an action for the stipulated price.15 There is here an inconsistency from which no amount of juridical learning has been able to effect an escape.16

§ 898. Right of rescission in the Roman Law.

Connected with the right to refuse performance of a contract because the other party has not performed, is the right to have the contract rescinded or dissolved for that reason and any performance already given restored if the nature of the case allow. If no performance by either party has been made, and performance by the party in default no longer can be made, either because the proper time has elapsed or for any other reason, it makes little practical difference whether it is said that the other party has the right to rescind the contract or merely that he need not perform until he receives performance. The result is the same. But where performance has been partly rendered, or is still possible, the difference is important. The right to rescind the transaction does, it is true, imply the right to refuse to perform unless counter performance is rendered, but the converse statement does not hold good.

Roman law did not authorize dissolution of a sale because of non-payment of the price, and the same principle is applicable to the other consensual contracts under discussion.17 If the seller trusted to the credit of the buyer he had no other

by Pothier, Contrat de Vente, § 307; Dernburg, Pandekten, ii. § 20. The other view is well stated by André, 146 et seq. See also infra, § 950.

15 Dig. 19. 1. 50, Hunter, Roman Law (3d ed.), 508, 512.

16 See Hofmann, Periculum beim Kaufe (Vienna 1870) pp. 18-21. Esterlen, Mehrfacher Verkauf. (Stuttgart, 1883), p. 66; Tödter, Die Allgemein Bestimmungen des Bürg. buches über den gegenseitigen Vertrag (Erlangen, 1899), p. 31. The rule

Gesetz

in regard to risk of loss after a contract of sale is of great antiquity (see Hofmann, pp. 169-188), and perhaps the most satisfactory way of dealing with that rule is to regard it as a survival in a particular class of cases of the early doctrine of the independence of mutual promises, indicated by the quotation from Varro, supra, in spite of the later development of a general doctrine of inconsistent nature.

17 Windscheid, Lehrbuch, II. § 321,

note 9.

remedy than a personal action for the price. 18 In order to give the seller the right of rescission if the buyer failed to fulfil his obligations it was necessary to insert a special clause which was called lex commissoria.19 In later Roman law the buyer was allowed to rescind a sale without this special agreement in case the article sold had latent defects, but not simply because the seller had broken his contract.20

§ 899. General provisions of the French Law.

Modern civil law has developed and in some respects changed the doctrines of the Roman law.

In France it is well recognized that one party to a bilateral contract has the right to refuse performance until the other party has performed or offered to do so. This is called the right of retention, being considered analogous to the right of a pledgee or lien holder.21 The Code Civil expressly gives the right only in the case of sales and in favor of the seller only, 22 but it is not questioned that it exists in all bilateral contracts.23

This right, however, has been very little considered in French law, and has never received elaborate treatment by French writers. The reason for this is not far to seek. The right of one party to a bargain to rescind it for non-performance or imperfect performance by the other party, a right which, as previously stated, did not generally exist in the Roman law, had already by legal usage been greatly extended at the time when Pothier wrote, 24 and Article 1184 of the Code Napoléon made the principle universal. That article

18 Actio tibi pretii, non eorum quæ dedisti repetitio competit. C. 4. 38. 8. See also C. 4. 44. 14.

19 Larombière, III. 84; Moyle, Sale in Civil Law, 169; Hunter, Roman Law, 591.

20 Larombière, III. 85; Moyle, Sale in Civil Law, 201; Hunter, Roman Law, 498-502.

21 Saleilles, Annales de Droit Commercial, VII. 25; Larombière,. III. 266.

22 Art. 1612. Le vendeur n'est pas

tenu de délivrer la chose, si l'acheteur n'en paie pas le prix, et que le vendeur ne lui ait pas accordé un délai pour le payement. See also Arts. 1651, 1653, 1749, 2102-2104.

23 Larombière, III. 266; Saleilles, Ann. de Droit Comm. VII. 25. Indeed the language and illustrations of Larombière indicate that it exists in all reciprocal obligations, whether arising from contract or not.

24 Contrat de Vente, § 475. was published in 1762.

This