Page:Harvard Law Review Volume 9.djvu/103

75 THE RISK OF LOSS. 75 ments as to risk would have been apparent Nevertheless, there is a text in the Digest which covers the case.^ At the present day the general rule in the civil law is almost universally recog- nized to be the same as in the English law.^ 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,^ but three lines of reasoning seem entitled to consideration, — I. The buyer is entitled to the commodiim rei^ and 'C^^ pericuhim rei should always go to the same party. But there is no commodmn rei that can be classed with the risk of destruction. Changes in the pecuniary value of the subject matter of a bargain have of course no effect upon it. But if a case can be supposed of an accidental change in the subject matter of a contract of sale, so that it is no longer substantially the same thing, it is not certain that the seller would be bound to perform.* As this argument rests on an assumption which, though it cannot be disproved, cannot be proved, it does not advance the discussion. 1 Dig. 19, I, 50. "Bona fides non patitur, ut, cum emptor alicujus legis beneficio pecuniam rei venditae debere desisset antequam res ei tradatur, venditor tradere compel- letur et re sua careret." 2 Windscheid, Lehrbuch des Pandektenrechts, § 321, 3; Hofmann, Periculum beim Kauf, pp. 8, 9. Both writers cite a number of other authorities. Some authorities, how- ever, 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. 8 As an illustration of the fertility of the Teutonic intellect when in search of a rea- son, 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 calam- ity, 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 iniures 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. This is only saying that the commodum r^tand the pgriculum rei must always fall to the same party, but to which one } " Hofmann, p. 33.
 * " It is said, * the buyer is not unfairly treated, the co7nmodum also belongs to him.*