Page:Harvard Law Review Volume 9.djvu/100

72 72 HARVARD LAW REVIEW. THE RISK OF LOSS AFTER AN EXECUTORY CONTRACT OF SALE IN THE CIVIL LAW. IN the Institutes of Justinian it is laid down : ^ "As soon as the contract of purchase and sale is made, which is, if the transaction is without writing, when the price is agreed, the risk of the thing sold immediately falls upon the buyer, although it has not yet been dehvered to him. Thus, if the slave dies or is injured in any part of his body, or the whole or any part of the house is burned, or the whole or any part of the land is carried away by flood or is dimin- ished or injured by an inundation or by a tempest which overthrows the trees, it is the loss of the buyer, who must pay the price though he does not receive the thing," and though, it may be added, deliv- ery was necessary according to the Roman law for the transfer of title, as it is generally in the modern civil law. This view seems to have been little questioned by the Roman writers, though Africanus says that if the treasury seizes upon an estate which the owner has agreed to sell but has not de- livered, the owner, though not liable for damages, must restore the price.2 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 : ^ — " 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." 1 Lib. iii. Tit. xxiii. 3. The rule seems to be of great antiquity, and Dr. Franz Hofmann endeavors to show that it is of Greek origin. Periculum beim Kauf (Vienna, 1870), pp. 169-188. 2 Dig. Lib 19 (locati conducti), 2, 33, quoted by Pothier, Contrat de Vente, § 308. 8 Compendium Juris, Lib. 18 Pandectarum, Tit. vi. De Periculo, i.