Page:Harvard Law Review Volume 9.djvu/102

74 74 HARVARD LAW REVIEW, purchased, that should also be regarded as a ^?q per aver si on em, — that is, a sale of a specified thing for a lump sum.^ 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 in default {mora) in receiving delivery, in which case the seller was thereafter only responsible for wilful default.^ If the seller were in default in making delivery, the property was thereafter at his risk.^ 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: * " The buyer, as soon as the bargain is made, is a credi- tor 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."^ This argument is, of course, sufftciently 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 efTect 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 this century did not so understand the law,^ or the insufificiency of their argu- presented of a seller retaining the risk after he has parted with title and perhaps posses- sion. 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 would transfer the risk. See also Goodwyn v. Pritchard^ 10 La. An. 249 ; Peterkin v. Martin, 30 La. An. 894. 1 Moyle, Contract of Sale, 86. 2 Voet, Compendium Juris, Lib. 18 Pandectarum, Tit. vi. 2. 8 Ibid. Tit. vi. 3. See also Moyle, p. 87. s See also Voet, Lib. xviii. Tit. vi. ; Sandars'- Justinian, Hammond's ed., p.446; Pothier, Contrat de Vente, § 308; C. G. Wachter, Archiv. f. civil Pr., xv. 97 (1832). See also, Moyle, p. 90. 6 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."
 * Lib. xviii. Tit. vi.