44. Things lost.—The question of things lost is related to that of possession in good faith. If the thing lost should fall into my hands by a regular acquisition, by purchase, contract, etc. (as, for instance, buying a horse in the market), it is evident that this case comes under possession in good faith, and that it is the business of the law to decide between proprietor and possessor. But if I appropriate to myself the thing lost, knowing it to be lost, and consequently not mine, there is fraud and converting to my own use the property of others. Public opinion was for a long time indulgent towards this kind of appropriation. It seemed that luck gave a certain title to property. The difficulty, moreover, of finding the true owner, seemed to give to him who had found the object a certain right to it. But to-day society plays the part of intermediary, and assumes the duty of restoring the thing lost to its owner. It is, therefore, to the authorities the object must be returned.[28]
For a long time a misjudgment of the same kind allowed wreckers a pretended right to the objects thrown on the strand by the tempest following a wreck.
45. Sale.—Sale is a contract by which one of the parties engages to deliver a thing, and the other to pay for it (Civ. Code, Art. 1982). There are, then, two contracting parties—the seller and the buyer. They are subject to different obligations.
Obligations of the seller.—The seller is held clearly to explain what he engages to do. An obscure and ambiguous agreement is interpreted against the seller (Civ. Code, Art. 1602). Such is the general and fundamental obligation of a sale. It implies, moreover, two others, more particular: 1, that of delivering; 2, that of guaranteeing the thing sold.
The first is very simple, and raises only questions of fact, as in regard to delays, expenses of removal, etc.; it is the business of the law to regulate these details.
The guaranty, in a moral point of view, is of greater importance. The two essential principles in this matter are expressed by the Code in the following terms:
1. The seller is held to his guaranty in proportion to the concealed defects of the thing sold, rendering it improper for the use for which it was destined, or so diminishing this use, that the buyer would not have bought it, or would not have given so much for it, had he known of these defects.
2. The seller is not held to the obvious defects which the buyer may have been able to see himself.
It is to this question of guaranteeing the thing sold, that the conscience-case mentioned by Cicero, in his treatise on Duties, is applicable:
An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and passes for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. “Certainly he would do wrong,” says Antipater; “is it not, in fact, leading a man into error knowingly?” Diogenes, on the contrary, replies: “Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise: Fine country-house well built, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: “Unhealthy house for sale!”