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Published online by Cambridge University Press: 16 January 2009
Javolenus libro undecimo epistularum. Cum venderem fundum, convenit ut, donec pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet: an soluta pecunia merces accepta fieri debeat? respondit: bona fides exigit ut quod convenit fiat: sed non amplius praestat is venditori quam pro portione eius temporis quo pecunia numerata non esset.
1 Digest XIX. 2, 1891, p. 30.
2 Paulus. Item si pretio non soluto inempta res facta sit, tune ex locato erit actio. The meaning is that annulment of the sale in exercise of the right under a lex commissoria does not entail annulment of the lease combined with it.
3 Vatican Fragments, 3, is particularly suggestive: Venditor qui legem commissoriam exercere noluit ob residuum pretium iudicio venditi recte agit. The text considers only the normal case where, by the final date, only a residue remains to be paid.
4 See Heumann, , Handlexikon zu den Quellen des römischen Rechts, 9th ed., by Seckel, , 1907, p. 425.Google Scholar The fragment under notice is not considered; nor 43.26.20, on which some remarks will be made below, in an Addendum, with ‘universum pretium persolvere’.
5 See Kalb, Roms Juristen, 1890, p. 52, quoting Jenichen and Gradenwitz.
6 19.2.9.6 and 19.2.10. Ulpianus. Si alienam domum mihi locaveris, eaque mihi legata vel donata sit, non teneri me tibi ex locato ob pensionem: sed de tempore praeterito videamus si quid ante legati diem pensionis debetur: et puto solvendum. Julianus. Et ego ex conducto recte agam vel in hoc ut me liberes. The two fragments raise several difficulties into which, however, it is not here necessary to go. On some points concerning the former, see the following two footnotes.
7 In 19.2.9.6, the legacy contemplated seems to be per vindicationem, conferring civil ownership.
8 Professor Buckland, in his lectures, did not think so. The view here taken rests, above all, on 19.2.9.6, cited above, footnote 6. Ulpian says that I can claim no further rent if the house becomes yours as a result of a legacy. There is an interpolation, ‘vel donata’, extending the decision to other gratuitous acquisitions, no doubt correctly. Any reference to purchase, however, is conspicuously omitted. It may also be noted that, as to the analogous case where a buyer from a non-owner subsequently purchases the object from the owner, Nerva the Elder (prior to Javolenus, it is true, and belonging to the rival school) was of opinion that the non-owner must still be paid. Admittedly, by the time of Celsus the Younger (slightly later than Javolenus and, like Nerva, a Proculian), this was no longer undisputed. 21.2.29pr. Pomponius, Si rem, quam mihi alienam vendideras, a domino redemerim, falsum esse quod Nerva respondisset posse te a me pretium consequi ex vendito agentem, quasi habere mihi rem liceret, Celsus filius aiebat, quia nec bonae fidei conveniret et ego ex alia causa rem haberem. See the following footnote for the probable significance of the first of the two arguments advanced by Celsus, and below, towards the end of the article, on the possibility of a similar classical evolution in connection with the problem of 19.2.21. Monro's note on 19.2.9.6, op cit., p. 9, opens well but soon goes astray.
9 It is tempting to assume that Nerva also, when he delivered the analogous decision quoted in the preceding footnote, supported it by an express reference to bona fides: the first of the two points of Celsus in favour of the opposite view may well have been meant as a direct repudiation, something like ‘It is not true that this is required by bona fides’.
10 It would somewhat correspond to the difference between Nerva and Celsus, commented on above, footnote 8. For literature, see Buckland, A Textbook of Roman Law, 2nd ed., 1932, p. 563, n. 11.
11 See the modern editions of the Digest, accepting Lenel's reconstruction.
12 The writer is indebted to Professors P. W. Duff, of Cambridge, and Hugh Last, of Oxford, for valuable advice.