produced, then the sureties might be sued, and after that, recourse should be had to the debtor's property. If sureties paid, they had a claim on the debtor for reimbursment and for the transfer to them of any pledge he had given, but could not retain the pledge if debtor offered them the amount of debt and interest. A surety's obligation passed to his heirs.
If a woman gave a guaranty for another person, even for her husband or son or father, so as to make her liable for them, the obligation was invalid. But she was not protected, if the obligation was really for herself, or if she had deceived the creditor or received compensation for her guaranty, or had after two years' interval given a bond or pledge or surety for it. This rule, which dates from the Early Empire (senatus consultum Velleianum), was based on the theory that a woman might easily be persuaded to give a promise, when she would not make a present sacrifice. Accordingly she was not prohibited from making gifts. Justinian confirmed and amended the law in 530 by requiring for any valid guaranty by a woman a public document with three witnesses, and in 556 enacted that no woman be put in prison for debt.
The class of contracts which arise consensu, i.e. by the agreement of the parties, without special formalities or transfer of a thing from one to the other, is constituted by Purchase and sale, Hire and lease, Partnership, Mandate.
Purchase and sale (one thing under two names) is complete when the parties have agreed on the object and the price, or at least agreed to the mode of fixing the price. The agreement may be oral or in writing: if the latter, it must be written or subscribed by the parties; and till that is done, neither party is bound. Whether the contract is oral or written, the intended buyer, if he does not buy (in the absence of any special agreement on the point), forfeits any earnest money he may have given, and the vendor, if he refuses to complete, has to repay the earnest twofold. (So Justinian 528.) The vendor is bound by the completed contract to warrant to the purchaser quiet and lawful possession but is not bound to make him owner. He must, however, unless otherwise agreed, deliver the thing to the purchaser, where it is, and thereby transfer all his own right. From the date of completion of the contract, though delivery has not taken place, the risk and gain pass to the purchaser, but he is not owner until he has paid the price and got delivery, and then only if the vendor was owner, or possession for the due time has perfected the purchaser's title. The vendor is liable to the purchaser on his covenants (e.g. in case of buyer's eviction, for double the value), and also for any serious defects which he has not declared and of which the purchaser was reasonably ignorant.
In case of sale of an immovable Diocletian admitted rescission when the price was much under the value (285). It was probably Justinian who
