su
not in virtue of any matter which is prohibited, or contrary to the
l a w . The purchafer, moreover, does not become proprietor of the
goods before feizin, for two realons:— f i r s t , becaufe, although an
invalid fale be a caufe of right of property, yet it is a weak caufe, and
therefore Bands in need of the aid of feizin to give it effedt:— s e c
o n d l y , becaufe, if the purchafer become proprietor previous to the
feizin, it would neceflarily follow that a fandlion is given by l a w
to the invalidity, whereas it is incumbent to remove the invalidity.
With reipect to the cafes of a fale of any thing in exchange for car-
.rion, or of wine in exchange for money, the eflèntials of fale do not
exift in either of thefe, as has been already demonfirated. It Is efta-
blilhed as,a condition, in this inftance, that the feizin be made with
,■the confent o f the s e l l e r ,; it is fufficient, however, (according to a
favourable cOnftrudtion of the l a w , ) if this confent be by implication; as
if the purchafer Ihould make the feizin in the place offale, and in prefence
.o f the feller. The reafon for a favourable conftrudtion of the law, in
this particular, is, that as the feller, by the contradl of fale, virtually im-
powers the purchafer to make feizin, and as the purchafer does fö in his
;prefence, without his making any objedHon.thereto, it is therefore con-
, Ifrued to have'been made with his confent: in the fame manner as the feizin
-of a gift, in the. place where the deed of gift is executed, is valid ac-
■ cording to a favourable conftrudtion of the law. It is alfo a condition,
that both thé goods and the return be, property, in order that an exchange
o f property fo r property (which is one of the pillars of f^le) be
eltabliIhed; for if this were not the cafe, the fale would be null, in the
fame manner as a fale in return for carrion, blood, the perfon of a
freeman, air, or the like; and hence if, in thefe cafes, the purchafer
Ihould take p'offeffion of the goods with the confent of the feller, Bill
rand the value b e is not refeonfible for them. With refpedt to what was Bated, that
muftbe paid . _ • _ . r i • i r -\
in money, or the idler |6 remains reiponlible, not for the price, but for the value
accordTng^to “ the'goods,” it relates only to fuch goods as are of a nature to be
the nature o f compenfated for by money; for with relpedt to fuch as are com-
penlable hyfimilars, .the purchafer is refponfible for a fim ilar; becaufe
j ' .that
S A L 455
that which is a fimilar both in appearance .and in, effeBls a more equitable
compenfation than-that-which is fimilar in effect only. ;
I n an invalid fale, either of the parties.,;previous to the feizin, has
the power of annulling, the contradt, in order that the invalidity of
it may be removed. The law is alfo the fame afte? feizin, provided
the invalidity exift in the body of the contract., I f, however, the invalidity
be occafioned by the addition of. an invalid, condition, the perfon
Bipulating the condition is,allowed- to annul it, but not the other
party.
If the purchafer, in an invalid fale, take poffefiion of the article,
and then fell it, in that cafe the fecond fale is valid,— as the firfi purchafer,
having become proprietor in virtue of feizin,. is fully competent
to fell the article :— and, upon his fo doing, the right of returning
the article to thefirfi feller expiries :— f ir s t , Becaufe the right of
the individual (namely the fecond purchafer) is connected with the
fecond fale; and the annulment of the firfi fale in confequence of its-
invalidity, is on account of the right of G od* ; but the Tight of the
individual has preference to the right of God; as the individual is ne-
ceflitous, whereas G od is not fo -.— secondly, Becaufe the firfi fale
is legal in its effence, but invalid in its quality,— whereas the fecond
fale is legal in point of both ; and it follows that the latter cannot be
obfirudted in its operation by the former: and, th ir d l y , becaufe '
the fecond fale is made with the virtual aflfent of thefirfi feller, 4s the
power, to that effedl was by him bellowed on the firfi purchafer.— It
is otherwife where the purchafer of a houfe, in which there is a right
of Shaffa, fells it to another; for there the perfon entitled to the right
of.Shaffa has neverthelefs a juft title to it; becaufe it is the fight of
the individual, in the fame manner as that of the fecond purchafer ; is
1 * In other words,-—th e r ig h t o f th e lAWi-
Either party
may annul the
contract before
feizin.
A purchafer
under an invalid
fale
may validly
fell the article,
in which cafe
his right o f
annulling the
fale expires. •
equal