It may also be doubted, whether the Owner can recall his property so lent to another, within the time or place allotted, especially if he himself should have occasion to use it in the interval.[391]
CHAP. XIV.[392]
A debt also arises by reason of a Purchase and Sale. When any person sells a thing to another, the price is due to the Vendor, and the thing contracted for to the Purchaser.[393]
But a purchase and sale are effectually perfected from the moment the price is settled between the contracting parties; provided possession of the thing purchased and sold be delivered,[394] or that the price, either wholly, or in part, be paid, or, at least, that Earnest[395] be given and received.[396]
But, in the two former cases, neither of the Contracting parties can by any means at his own option recede from the Agreement, unless for some just and reasonable cause; as, if the terms of the contract were, that either of the parties may with impunity retract within a certain period; then, indeed, either party may within the period prescribed avail himself of the terms of the Contract and recede, without being liable to any penalty: since it is, generally speaking, unquestionable that, Conventio legem vincit.[397] Besides, if the Vendor sold the thing to the Purchaser as being sound and without fault,[398] and the Purchaser can afterwards satisfactorily shew, that the thing at the time of the contract was not sound, but faulty, then, indeed, the Vendor shall be compelled to take back his property. But it is sufficient, if the thing was in a proper state, at the time of the Contract, whatever may afterwards happen to it. But I doubt, as to the period within which this should be proved, or complaint made concerning it, especially where there is no special Agreement. Where, however, Earnest only has been given, if the Purchaser would recede from the Contract, he may do so, with the loss of the Earnest. But if, in such case, the Vendor would retract, it is a question whether he can do so without incurring a penalty.[399] It does not seem that he can; because he would then be in a better situation than the Purchaser. But, if it cannot be done with impunity, what punishment shall such conduct incur?[400] The risk of the thing sold and purchased generally belongs to the person who has possession of it,[401] unless it has been differently arranged.
CHAP. XV.
The Vendor and his Heirs are bound to warrant the thing sold to the purchaser and his Heirs, if the thing be an immoveable; and hence, the Purchaser[402] and his Heirs may be sued in the manner we have formerly explained, in treating of Warranties.
If any person sue the Purchaser with respect to a moveable, on the ground that the thing in question was first sold or given to him, or from any other just cause was acquired, unconnected with the imputation of Felony, the same rule may be laid down as that we have mentioned concerning immoveables. But if, under an imputation of Theft,[403] the Purchaser is sued for the thing, he is bound in the clearest manner to remove from himself every such an imputation, or to call a Warrantor.[404] If, therefore, he adopt the latter course, he will name either a certain Warrantor, or an uncertain one. If he call a certain Warrantor to Court, alleging that he desires to have him to Warrant at a reasonable period, then a day is to be given him in Court for that purpose.