Despite Diogenes’ railleries, Cicero decides in favor of Antipater and the more rigorous solution. The truly honest man, he says, is he who conceals nothing.
If it is a fault not to reveal the defects of the thing sold, it is a still graver one, and one which becomes a fraud, to ascribe to it qualities or advantages it has not. Cicero cites on this subject a charming and well-known anecdote.
The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse, not on business, but to do nothing,[29] as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged him to use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, assembled some fishermen, requesting them to go fishing the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a multitude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius’ feet. Canius wondered: “What means this, Pythius? How! so many fish here, and so many boats!” “Nothing to wonder at,” says Pythius; “all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house.” Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. “Not that I know of,” replied the neighbor; “but they never come this way, and I did not know, seeing them yesterday, what it all meant.” Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]
46. The price in selling.—If we adhere to the principles of political economy, the price in selling is entirely free: it depends exclusively upon the agreement between the vender and the buyer, and as it is said, on the relation between the supply and demand. Nothing more unjust than the intervention of the law in commercial relations. If the buyer buys at such or such a price, however high, it is that he still finds it to his interest to buy even at that rate. If the vender sells at such or such a price, however low, it is that he cannot get more, and that it suits him rather to sell at that price than keep the thing.
It is then certain that the value of things being wholly relative, it is impossible to determine in an absolute manner what may be called the just price; for that depends on the frequency and rarity of the thing, on the market, on the wishes of the buyer, and the thousand continually varying circumstances. In short, the sale taking place when one wishing to sell and one wishing to buy, meet each other, it seems that their accord is a proof that the two interested parties have come to an understanding. There would, according to that, never be any unjust sale or purchase. We must consequently consider the definition of commerce given by the socialist, Ch. Fourier: “Commerce is the art of buying for three cents what is worth six, and selling for six what is worth three,” not only as satirical and hyperbolical, but also as unjust and anti-scientific; for we cannot say whether a thing is in itself absolutely worth six cents or three cents.
Does it follow, however, that there can never be any injustice in sale or purchase? If there is no absolute price, there is a medium price resulting from the state of the market. Now, the buyer may not know this medium price; and it is an injustice on the part of the seller to take advantage of this ignorance to sell above that. The same in the case of the vender’s not knowing the price of the thing he has for sale, which the buyer appropriates, paying for it below its real value.
Besides, whilst admitting that the prices are free, and that the law cannot intervene between vender and buyer, it is, however, necessary to admit that there is a certain moderation beyond which injustice begins, if not in a legal, at least in a moral point of view. But it is for particular circumstances to determine this limit; and there is no general rule for it. It is a case where not strict justice, but equity is just.
47. Violation of the property of others.—Theft.—In general, every kind of violation of property under one form or another, is called theft, and this action is condemned by morality. It is expressed by that ancient commandment: Thou shalt not steal.
The following are the various definitions of theft given by the jurists: “By theft is meant every illegal usurpation of the property of others.”[31]—“By theft is meant every fraudulent carrying off for gain a thing belonging to others.”[32] Finally our Code declares that, “whosoever has fraudulently carried off anything that does not belong to him, is guilty of theft.” (Penal Code, Art. 379.)
It takes, then, three elements to constitute theft: 1, carrying off; 2, fraud; 3, the thing of another.