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[001] but the buyer may proceed against the seller to compel him to make good what he
[002] promised. 1Once a purchase and sale has been concluded, as was said above, the
[003] risk attending the thing bought and sold2 both before delivery and after it, 3falls
[004] generally upon him who has it in his possession, unless it is otherwise agreed at the
[005] outset,4 for obviously he who has not yet delivered the thing to its buyer will still
[006] himself be its owner, since by deliveries and usucapions etc.5 [as above [in the portion]
[007] on gifts,]6 as may [readily] be seen, as 7where a slave sold dies before delivery,
[008] or a house is consumed by fire, or an estate is wholly or partially wasted or swept
[009] away by the force of a stream8 and the like, for which reasons it seems that the
[010] whole risk falls upon the seller. On the other hand, 9if after the purchase but before
[011] livery there is some accretion to the land sold, by alluvion or other means,10 the
[012] gain will belong to the seller. For gains ought to accrue to him upon whom burdens
[013] fall and 11the profit to him who bears the risk.12 13A purchase and sale may be
[014] made conditionally as well as absolutely: under a condition, as ‘if such a thing
[015] meets with the approval of the buyer by a certain date it may be bought for so
[016] many aurei,14 if it does not it may be returned.’ 15If one buys a sacred thing,
[017] incapable of being sold, though the contract cannot stand let the buyer recover
[018] damages from the seller for what he has lost by the fraud,16 despite the fact that a
[019] buyer is held to know what and what sort of thing it is that he buys, whether sacred
[020] or not, encumbered or not. 17The seller and his heirs are bound to warrant the thing
[021] to the buyer and his heirs, whether it is a movable or an immovable,18 provided
[022] that if it is an immovable it be done19 as will be explained below [in the portion]
[023] on warranties;20 if a movable,21 as below [in the portion] on thefts.22

Of letting and hiring.

[025] 23Letting and hiring very much resembles purchase and sale, for as a contract of
[026] purchase and sale is concluded after the price is agreed upon, so it is with letting
[027] and hiring.24 25By a letting and hiring a thing is usually given either for use or
[028] occupation, as where one lets his movable or immovable property to another for a
[029] specified time in return for a certain payment; he who lets is bound to give up the
[030] thing let for use and the hirer obliged to pay the hire.26 If an immovable thing,
[031] such as a house or the like, is let and hired, all things brought or carried into it are
[032] annexed as pledges,27 not only for the hire but for other things, 28so that the lessor
[033] may be provided with security if no other provision was made at the outset.29
[034] And what if nothing is found in houses let and hired? Recourse must be had to the
[035] person of the hirers, if they can be found. If they cannot, the lessor can only blame
[036] his own carelessness or inexperience in failing to make more careful provision for
[037] himself. If, however, one is


1-2. Inst. 3.23.3

3-4. Glanvill x, 14; Woodbine in Yale L. Jour., xxxi, 846

5. C. 2.3.20

6. Supra 124

7-8. Inst. 3.23.3 (with alterations)

9-10. Ibid.

11-12. Ibid., reading ‘debet,’ as Inst.

13-14. Inst. 3.23.4; reading ‘veluti’ for ‘ita ut’

15-16. Inst. 3.23.5 (with alterations); reading ‘consequatur’ ‘interfuerit,’; Fleta, ii, ca. 58

17-18. Glanvill x, 15; reading ‘tenentur,’ as OA and Glanvill

19. Deleted

20. Infra iv, 191

21. Deleted

22. Infra 426

23-24. Inst. 3.24. pr.

25-26. Glanvill x, 18 (with alterations)

27. D. 2.14.4: ‘in urbanis habitationibus locandis invecta illata pignori esse locatori’; G’terbock, 146

28-29. ‘quod locatori ... sit prospectum,’ from line 36

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