must restore the price. 20 This text led Cujacius to maintain that by the Roman Law the risk remained with the seller until delivery, but the text was reconciled by other writers as depending upon the particular facts of the case. Thus Voet says: 21 "There the question was as to a farm, which, though captured from the enemy, for the time had been left to its former owner, but afterwards had been confiscated owing to urgent necessity or public utility, as it appears may be done. Since, therefore, the seller could not prevent this confiscation, it would have been unjust for the buyer to be bound, because the seller ought to have warned an ignorant buyer that the land was in a position where it might be confiscated at the will of the Prince; and if he did not do this, he is held to restitution of the price, as if on account of some latent defect of the thing." § 948. Until there was emptio perfecta the risk was on the seller. In order to transfer the risk to the buyer, it was necessary that there should be emptio perfecta. The obligation of the parties to go forward might be complete, yet the sale might not be perfect. To make a perfect sale it was necessary for the bargain to be unconditional, to relate to specific goods, and for the price to be certain. 22 If a sale was subject to a suspensive (or precedent) condition, and the subject-matter was destroyed before fulfilment of the condition, the loss fell on the seller, since the obligation could never become complete; but if the injury to the subject-matter did not destroy it or change its identity, the loss fell on the buyer, if the condition was fulfilled, for the fulfilment was held to relate back to the time when the agreement was concluded. If a resolutory (subsequent) condition was attached to a bargain, the risk of destruction nevertheless passed immediately, but the 20 Dig. Lib. 19 (locati conducti), 2, 33, quoted by Pothier, Contrat de Vente, § 308. 21 Compendium Juris, Lib. 18 Pandectarum, Tit. vi. De Periculo, 1. 22 "Si id quod venierit appareat quid quale quantum sit, sit et pretium, et pure venit, perfecta est emptio." Dig. 18, 6, 8. Pothier, Contrat de Vente, $309; Moyle, Contract of Sale in the Civil Law, 77. risk of injury not amounting to destruction did not necessarily pass, for such injury would not prevent the rescission of the contract by the happening of the condition; and if the condition were dependent on the will of the buyer, he would naturally exercise his right.23 A sale was also imperfect if the amount of the price was not exactly determined, or if the goods were not exactly defined. Thus, in sales by count, weight, or measure, the risk did not pass to the buyer till the goods were counted, weighed, or measured. This was so where a definite quantity or proportion of a specified mass was sold at a price to be determined by calculation when the goods should be counted, weighed, or measured; 24 and it has even been held that though the whole of such a mass were purchased, the transaction should be regarded in the same way, 25 but the contrary view certainly seems more sensible.26 So if a fixed proportion of a specified mass were purchased, that should also be regarded as a sale per aversionem,—that is, a sale of a specified thing for a lump sum.27 § 949. Effect of negligence or default. After the risk had passed to the buyer, the seller before delivery was liable for wilful default (dolus), and also negligence (culpa), whether gross or slight, unless the buyer were "Moyle, Contract of Sale, 78–82; Pothier, Contrat de Vente, §§ 311–313; Voet, Compendium Juris, Lib. 18 Pandectarum, Tit. vi. 4. Code Civil, § 1182. Compare 24 Moyle, Contract of Sale, 84, 85; Pothier, Contrat de Vente, § 309; Code Civil, § 1585. 25 Moyle, Contract of Sale, 84, citing Demante, Cours Analytique de Code Civil, vii. p. 10; Pothier, Contrat de Vente, § 309. So in Peterkin v. Martin, 30 La. An. 894, 896, it is laid down: "There can be no sale in lump except for a lumping price." This is because by the civil law to make a perfect sale it is necessary that the price as well as the goods should be ascertained. Aubry & Rau, Cours de Droit Civil Français, 4th ed., iv., § 349, p. 341, citing Duvergier, i. 90, Dijon, 13 décembre, 1867, Sir., 68, 2, 311. As delivery is no longer necessary in France for the transfer of title, the title in the case supposed would in that country pass to the buyer; and if the risk remains with the seller, the curious case is presented of a seller retaining the risk after he has parted with title and perhaps possession. But such, it seems, is the law of Louisiana. It was so held in Shuff v. Morgan, 9 Martin, 592. In Larue v. Rugely, 10 La. An. 242, however, the court expressly leave open the question whether transfer of possession as well as title transfers the risk. See also Goodwyn v. Pritchard, 10 La. An. 249; Peterkin v. Martin, 30 La. An. 894. 27 Moyle, Contract of Sale, 86. in default (mora) in receiving delivery, in which case the seller was thereafter only responsible for wilful default.28 If the seller were in default in making delivery, the property was thereafter at his risk, 29 950. Reasoning of the older writers inconsistent with dependency in bilateral contracts. The reason uniformly given by the older writers in support of the doctrine of the Roman law, that the risk passes as soon as there is emptio perfecta, though the title has not passed, is thus expressed by Noodt: 30 "The buyer, as soon as the bargain is made, is a creditor of the thing sold. The seller, on the other hand, is a debtor. By the natural destruction of it, the debtor of a specific thing is freed from his debt." 31 This argument is, of course, sufficiently conclusive to prove that the seller is freed from liability, but it does not prove that the buyer is liable. That it is assumed to have this effect would naturally induce the belief that the Roman law did not have the principle of the English law, that if one party to a contract of mutual obligation is excused from performing by the impossibility of performance, the other party is likewise excused; or, as it may be put more tersely, impossibility excuses breach of a promise, but not breach of a condition, whether express or implied. Certainly writers on the civil law prior to the nineteenth century did not recognize the doctrine of implied dependency of mutual promises 32 or the insufficiency of their arguments as to risk would have been 28 Voet, Compendium Juris, Lib. 18 Pandectarum, Tit. vi. 2. 29 Ibid. Tit. vi. 3. See also Moyle, p. 87. 30 Lib. xviii. Tit. vi. 31 See also Voet, Lib. xviii. Tit. vi.; Sandars' Justinian, Hammond's ed., p. 446; Pothier, Contrat de Vente, § 308; C. G. Wächter, Archiv. f. civil Pr., xv. 97 (1832). See also Moyle, p. 90. 32 Thus Pothier, Contrat de Vente, § 308, states that though Barbeyrac and Puffendorf object "that the buyer's obligation to pay the price is dependent upon the condition that the thing sold shall be delivered to him, I deny the proposition. The buyer is under an obligation to pay the price, not upon condition that the seller shall give him the thing, but rather upon the condition that the seller is on his part obliged to cause him to have the thing; it is sufficient, therefore, if the seller is legally subject to such obligation, and does not fail in its performance, in order that the obligation of the buyer may have a cause and subsist." apparent. Nevertheless, there is a text in the Digest which covers the case. 33 At the present day the general rule in the civil law is almost universally recognized to be the same as in the English law.34 § 951. Reasons advanced by modern writers. It only remained, therefore, for the civilians to find another and better reason, or to change their rule. The subject has been a popular one with legal writers on the Continent of Europe, especially in Germany; and many and various have been the reasons, theoretical and practical, suggested. It is not necessary to examine all of them, 35 but three lines of reasoning seem entitled to consideration,— I. The buyer is entitled to the commodum rei, and the periculum rei should always go to the same party. But there is no commodum rei that can be classed with the risk of destruction. Changes in the pecuniary value of the subjectmatter of a bargain have of course no effect upon it. But if a case can be supposed of an accidental change in the subjectmatter of a contract of sale, so that it is no longer substan 33 Dig. 19, 1, 50. "Bona fides non patitur, ut, cum emptor alicujus legis beneficio pecuniam rei venditæ debere desisset antequam res ei tradatur, venditor tradere compelletur et re sua careret." Both 34 Windscheid, Lehrbuch des Pandektenrechts, § 321, 3; Hofmann, Periculum beim Kauf, pp. 8, 9. writers cite a number of other authorities. Some authorities, however, still maintain that in order to make out the exceptio non adimpleti contractus it is necessary that the plaintiff shall be in default in the performance of his obligation,-not simply have failed to perform it under circumstances making his failure excusable. A few writers hold that a bilateral contract consists of two wholly independent promises. See citations above. 35 As an illustration of the fertility of the Teutonic intellect when in search of a reason, the suggestion of a writer, not inaptly named Goose, may be mentioned. He says, "even if the buyer were not required to pay the price, he would be injured by the calamity, for the thing purchased was of more value to him than the money; the seller also would not be freed from loss, for the money was worth more to him than the thing. If the buyer is required to pay the price, he only suffers loss. A contrary view would be very like the justice of St. Crispin, only worse. It injures both, and indemnifies neither." Jahrb, f. Dogm., ix., § 203. So able a writer as Ihering puts forward as the reason of the rule the theory that failure to make an immediate delivery and transfer of title is generally due to the wrongful delay of the buyer, and that to prevent controversy, the law assumes this to be always the case. Jahrb. f. Dogm. iii. 463–465. tially the same thing, it is not certain that the seller would be bound to perform.36 As this argument rests on an assumption which, though it cannot be disproved, cannot be proved, it does not advance the discussion. 2. Immediately after the contract, the seller can no longer deal with the subject-matter of it freely for his own benefit. His hands are tied. If an accident befalls the thing, and the loss is thrown upon the seller, he has incurred a loss because of holding the thing for the seller's benefit instead of disposing of it otherwise. But it must be observed that every bilateral contract, if the parties respect their promises, involves the consequence that neither party is as free as he was before; and in a contract of sale the loss of freedom on the part of the buyer is just as real, and just as much for the benefit of the other party, as is the seller's sacrifice. True, the seller's obligation relates to a specific thing; but, generally speaking, the only result of a failure by the seller to have the thing ready for delivery is liability in damages to the buyer, and the latter suffers the same consequence if he has not the price ready at the appointed time. 3. Windscheid's explanation 37 is that the contract of sale itself is from its very nature in effect an alienation of the thing sold. A contract of sale, he says, is an immediate declaration of surrender of the owner's rights in a thing (Entaüsserungserklärung). "It has for its content that the thing sold is given; it is not that an obligation is undertaken to give it. An obligation on the part of the seller first arises when the actual state of affairs does not correspond to the declaration." It is another and somewhat less carefully analyzed way of saying the same thing, to say that when a contract of sale is entered into, an immediate completion is ordinarily expected and a delay is accidental. This line of argument in a sense includes also the reason given in the preceding paragraph. It may be doubted whether the parties to a contract to sell at a future day, look at the matter in this way; and it is not 36 "It is said, 'the buyer is not un- party, but to which one?" Hofmann, fairly treated, the commodum also p. 33. belongs to him.' This is only saying that the commodum rei and the periculum rei must always fall to the same 37 Lehrbuch, § 321, 3. A similar theory is expressed in Austin on Jurisprudence, 4th ed., p. 1001. |