or could be enforced simply on the ground that it had taken place.
The vendor was bound to support the purchaser in any action by
a third party disputing his right, and to repay him the price twofold
in the event of that third party's success; and he was bound,
moreover, to make good to him any loss he had sustained through
a deficiency of acreage he had guaranteed, non-existence of servitudes
he had declared the lands enjoyed, existence of others from
which he had stated they were free,[1] incapability of a slave for
labour for which he was vouched fit, and so on. But breaches of
these obligations were probably all regarded as of a delictual
character; the obligations were binding, not in virtue of the sale per se,
but of the transaction per aes et libram superinduced upon it; and, if
the vendor had at any time to return the price on failure to mancipate
what he had sold, it was not because he had committed a breach
of contract, but because he had unjustly enriched himself at the
purchaser's expense.
In sales of res nec mancipi, just as in those of res mancipi, a vendor who had been incautious enough to deliver his wares before he had been paid, or had got stipulatory security for the price, or had converted it into a book-debt, might recover them by a real action if payment was unduly delayed; while the purchaser who had paid in advance but failed to get delivery might also get back his money from the vendor on the plea of unwarrantable enrichment. But, as mancipation was, as is generally supposed, incompetent for carrying the property, some other machinery had to be resorted to than that of the copper and the scales for imposing upon the vendor an obligation of warranty against eviction, defects and so forth. What it was is a question much controverted among modern writers. It may be that, until trade began to assume considerable proportions, and when a transaction was between citizens, a purchaser was content to rely partly on the honesty of his vendor, partly on the latter's knowledge that he ran the risk of an action for theft if what he sold belonged to another,[2] and partly on the maxim common in all ages and climes, caveat emptor. When it was one between a citizen and a peregrin, a different set of rules of course came into operation; for between them disputes were settled by actions in factum before recuperators, whose decisions were arrived at very much on considerations of natural equity. On the whole, while admitting it to be quite maintainable that the urban praetors, under the influence of jus gentium, granted arbitria for enforcing obligations of parties in sales inter cives even a good while prior to the lex Aebutia, the balance of evidence, we think, is in favour of the view that it was the popularization of the stipulation that facilitated the development of sale into a bonae fidei contract.
We read of a satisdatio secundum mancipium, a stipulatio habere licere and a stipulatio duplae. The nature of the first is obscure; Confirmatory stipulations. it seems to have been connected with mancipatory sales, and probably to have been the guarantee of a sponsor for the liabilities imposed upon the vendor by the transaction per aes et libram and the verba nuncupata that were covered by it.[3] The stipulation habere licere occurs in Varro, in a collection of styles of sales of sheep, cattle, &c., some of which he says were abridgments of those of M. Manilius, who was consul in the year 149 B.C. It was the guarantee of the vendor of a res nec mancipi, or even occasionally of a res mancipi sold without mancipation, that the purchaser should be maintained in possession of what he had bought; it entitled him to reparation on eviction, measured not by any fixed standard but according to the loss he had sustained. It cannot have been introduced, therefore, until after the Lex Aebutia and the formulation by the praetor of the actio ex stipulatu. The stipulatio duplae was one binding the vendor for double the price in case of eviction, and was entered into not only where no mancipation of a res mancipi took place or one which might be challengeable for invalidity, but also where valuable res nec mancipi were sold.
The idea of the stipulatio duplae may have been borrowed from the duplum incurred by a vendor on the eviction of a purchaser acquiring a thing by mancipation; for one of its earliest manifestations was in the edict of the curule aediles, who insisted on it from persons selling slaves, probably because the dealers were for the most part foreigners, and therefore unable to complete their sales per aes et libram. Judging from Varro, it was a form of stipulation against eviction that in his time was used only in sales of slaves, although he adds that by agreement of parties it might be limited to a simplum.
There were also stiulations against vices in the object sold. We learn from Varro—what is also indicated in various passages of Plautus—that the vendor at the same time and in the body of the same stipulatio duplae guaranteed that the sheep or cattle he was selling were healthy and of a healthy stock and free from faults, and that the latter had not done any mischief for which their owner could be held liable in a noxal action; and similarly that a slave sold was healthy and not chargeable for any theft or other offence for which the purchaser might have to answer. If any of these guarantees turned out fallacious, the purchaser had an actio ex stipulatu against the vendor: “Whereas the plaintiff got from the defendant a stipulation that certain sheep he bought from him were healthy, &c. [repeating the words of guarantee], and that he, the plaintiff, should be free to hold them (habere licere), whatever it shall appear that the defendant ought in respect thereof to give to or do for the plaintiff, in the value thereof, judge, condemn him; otherwise, acquit him.” It is an observation of Bekker's[4] that Origin of actio empti. the actio empti in its original shape was just a simplification of the actio ex stipulatu on a vendor's guarantees; the stipulations to which we have been alluding had become such unfailing accompaniments of a sale as to be matters of legal presumption, the result being that the words “whereas this plaintiff bought from the defendant the sheep about which the action has arisen” were substituted in the demonstratio (as the introductory clause of the formula was called) for the detailed recital of what had been stipulated. Bekker justifies this by reference to the language of Varro, who seems to include under the words emptio, venditio not merely the agreement to buy and sell but also the stipulations that usually went with it.
The introduction of an actio empti in this shape, however, was far from the recognition of sale as a purely consensual contract. If the price was not paid at once, the purchaser gave his stimulatory promise for it, or got some one on whom the vendor placed more reliance to do so for him, or else the vendor made a book-debt of it; and, if it had to be sued for, it was in all these cases by a condictio certae pecuniae and not by an action on the sale. If the price was paid but the thing purchased not delivered, the only remedy open to the purchaser was to get back his money by the same condiction, unless, indeed, the guarantee habere licere was held to cover delivery, in which case the purchaser might obtain damages in an actio ex stipulatu under the name of actio empti. But this actio empti, whether raised on the ground of non-delivery, eviction or breach of some other warranty, was really an action on the verbal contracts that had accompanied the sale—a strictum jus action in which the judge could not travel beyond the letter of the engagements of the purchaser. In the latter years of the Republic, and probably a little before the time of Q. Mucius Scaevola, it was a bonae fidei action. How had the change come about? A single case of hardship may have been sufficient to induce it, such as the defeat of a claim for damages for eviction on the ground that the stipulatory guarantee had been accidentally overlooked. Ulpian says: “As the stipulatio duplae is a thing of universal observance, action on the ground of eviction will lie ex empto if perchance the vendor of a slave have failed to give his stipulatory guarantee, for everything that is of general custom and practice ought to be in view of the judge in a bonae fidei judicium.”[5]
Very little was required to convert the stricti juris actio empti, really nothing more than an actio ex stipulatu, into a bonae fidei one—simply the addition by the praetor of the words “on considerations of good faith” (ex fide bona) to the “whatever the defendant ought to give to or do for the plaintiff.” The effect, however, was immeasurable—not that it did away with the practice of stipulatory guarantees, for Varro wrote after the time of Q. Mucius (who speaks of the action on sale as a bonae fidei one), and references to them are abundant in the pages of the classical jurists; but it rendered them in law unnecessary. It made sale a purely consensual contract in which, in virtue of the simple agreement to buy and sell, all the obligations on either side that usually attended it were held embodied without express formulation or (still less) stipulatory or literal engagement. And, in instructing the judges to decide in every case between buyer and seller suing ex empto or ex vendito on principles of good faith, it really empowered them to go far beyond “general custom and practice,” and to take cognisance of everything that in fairness and equity and common sense ought to influence their judgment, so as to enable them freely to do justice between the parties in any and every question that might directly or indirectly arise out of their relation as seller and buyer.[6]
The history of the four nominate real contracts—mutuum (i.e. loan of money or other things returnable generically), commodate Real contracts. (i.e. loan of things that had to be returned specifically), deposit and pledge—is even more obscure than that of the consensual ones.[7] Down to the time of the Poetilian law loan of money, corn, &c., was usually contracted per aes et libram; and it is probable that on the subsequent disuse of the nexum the
- ↑ Cicero says (De Off. iii. 16, § 65) that, though by the XII. Tables it was enough if a vendor per aes et libram made good his positive assurances (uti lingua nuncupassit, ita jus esto), the jurists held him responsible for reticence about burdens or defects he ought to have revealed, and liable for a poena dupli exactly as if he had guaranteed their non-existence.
- ↑ “In rebus mobilibus . . . qui alienam rem vendidit et tradidit furtum committit” (Gai. ii. 50).
- ↑ See Lenel, Edict. Perpet. 2nd ed. p. 521.
- ↑ Bekker, Aktionen (1871), i. 156 seq. and 314 seq.
- ↑ Ulp., “Lib. I. ad ed. aedil.,” in Dig. xxi. 1, fr. 31, § 20.
- ↑ The above view is supported in the main by Girard, Manuel, 524 seq. For other views see Pernice, Labeo, i. 456 seq.; Cuq, Inst. Jurid. 2nd ed. vol. i. pp. 226 sqq.
- ↑ Demelius, in the Zeitschr. f. Rechtsgesch. (1863), ii. 217 seq.; Bekker, Aktionen, i. 306 seq.; Ubbelohde, Zur Gesch. d. benannten Realcontracte (Marburg, 1870); Huschke, Lehre vom Darlehn (Leipzig, 1882); Girard, Manuel, 4th ed. pp. 505 sqq.
