(tacha) which the thing has, must be clearly expressed or made known; ex. gr. if the thing or estate is liable or subject to any service (servidumbre) or annuity (censo); if the particular estate produces grass injurious to cattle; if animals labor under any vice or infirmity, &c. In the first two cases the sale may be annulled without limitation as to time; the vendor being obliged to return the price, and make amends for the damages and prejudices, unless he should prove that he was ignorant, at the time of the contract, of the faultiness or defect of the thing; for then he is only obliged to return the price, L. 63. tit. 5. P. 5. [L. 63. tit. 5. P. 5.] But, in the third case, a demand must be instituted against the vendor within six months in order to get back the price; and after these have elapsed, the purchaser has six months longer, until the completion of the year, to bring [198] his action to demand that so much of the price may be returned as the beast shall be less valuable on account of the fault or defect which was concealed in the sale; from which time these two periods of limitation are counted. But if the vendor should make known the defect (lacha), and the purchaser should notwithstanding consent, he shall not be able to revoke the contract, L. 66. tit. 5. P. 5. [L. 66. tit. 5. P. 5.] vide Guzman, ibid. quæst. 61.

§ 3. In what respects price, we have before said that it ought to be just; and, consequently, that the sale may be annulled if there was lesion enorme, or fraud, in an excess of half the just price, as well on the part of the vendor as of the purchaser, L. 56. tit. 5. P. 5. [L. 56 tit. 5. P. 5.]

61

From this principle it follows, 1st, That if the purchaser or the vendor should be prejudiced by this lesion, the contract ought to be amended or annulled within four years, if the thing exists without having undergone much deterioration, L. 56. tit. 5. P. 5. and L. 1. tit. 11. lib. 5. Rec., [L. 56. tit. 5. P. 5. and L. 1. tit. 1. lib. 10. Nov. Rec.] which extends to all onerous contracts; and does not take place when purchasers are compelled to purchase,62 L. 6. tit. 11. lib. 5. Rec. [L. 2. tit. 1. lib. 10. Nov. Rec.] 2d, That notwithstanding this lesion, the sale will be valid, if the contracting parties agreed and bound themselves by an oath that it should be valid, except if any one of them were under 14 years of age, L. 56. tit. 5. P. 5. L. 56. tit. 5. P. 5.] 3d, That all contracts celebrated between persons above twenty-five years of age, although there may be deception in the price (engaño) not exceeding half the just value, are valid, provided there be no fraud (dolo), L.

60 Also slaves. See L. 64. tit. 5. P. 5.

61 Unless the vendor or purchaser, says Palacios, referring to L. 56. tit. 5. P. 5. and L. 2. tit. 1. lib. 10. Nov. Rec. is willing to make good the deficiency, or reduce the excess. And see also the exceptions in the case of property sold publicly by appraisement, ad fin. L. 2. tit. 1. lib. 10. Nov. Rec. Such, it is presumed, as is sold at judicial sale. See Azevedo and Matienzo on L. 6. tit. 11. lib. 5. Rec.

What is

63 That is, fraud in the contract. See L. 3. tit. 1. lib. 10. Nov. Rec., cited. here laid down in the text, does not appear very reconcilable with what preceded it, nor with what is stated in L. 2. tit. 1. lib. 10. Nov. Rec. The apparent inconsistency may, perhaps, be thus explained. If deceit was the cause of the contract, and the inducement

57. tit. 5. P. 5. and L. 2. tit. 11. lib. 5. Rec. [L. 57. tit. 5. P. 5. and L. 3. tit. 1. lib. 10. Nov. Rec] 4th, That artisans cannot allege this lesion, by reason of the skill which they are supposed to possess, L. 3. tit. 11. lib. 5. Rec. [L. 4. tit. 1. lib. 10. Nov. Rec.]

§ 4. In what relates to the thing or property sold, the sale may be set aside when there exists the right of retracto ó tanteo, by which, if the person possessing the right (el retruyente) offers the same price as was agreed upon, the contract ought to be revoked. Some persons may retract (retraer) by reason of the quality or nature of the thing which hath been sold, and others by reason of the quality of the person. The first are, 1st, The direct lord or proprietor (señor directo), or the person who has a share in the thing sold, who ought to be preferred to the relations when their claims come together, L. 13. tit. 11. lib. 5. Rec. [L. 8. tit. 13. lib. 10. Nov. Rec.] 2d, The partner in the common property, L. 14. tit. 11. Lib. 5. Rec. [L. 9. tit. 13. Lib. 10. Nov. Rec.]

66

65

Those who possess the right of retracto, by reason of the quality [199] of the person, are, 1st, The nearest relation in the sale of a , patrimonial or ancestoral estate, and if there are two of equal degree, they shall divide the estate between them, L. 13. tit. 10. Lib. 3. Fuero Real, and L. 7. tit. 11. lib. 5. Rec. [L. 1. tit. 13. lib. 10. Nov. Rec.] 2d, If this sale should be made to a stranger,67 the nearest relation must make use of or exercise this right within nine days, swearing that he wants the thing for himself; and not being disposed to exercise or avail himself of his privilege, this right passes to the next in degree, L. 12. tit. 11. lib. 5. Rec., [L. 7. tit. 13. lib. 10. Nov. Rec.] which alters in this part, L. 7. tit. 11. lib. 5. Rec. [L. 1. tit. 13. lib. 10. Nov. Rec.] 3d, these nine days run against absent minors by way of prescription, without their being admitted afterwards to claim although they may allege the right of restitution in integrum, L. 8. tit. 11. lib. 5. Rec. [L. 2. tit. 13. lib. 10. Nov. Rec.] 4th, The son of the vendor is preferred to his uncle, L. 8. tit. 11. lib. 5. Rec. [L. 2. tit. 13. lib. 10. Nov. Rec.] 5th, This right takes place or holds

to it, the contract is void. If it was in the contract itself (by buying and selling too dear or too cheap), it is not void, but may be made void by action or exception, as of Redhibitoria or Quanto minoris. See Wood's Inst. Civil Law, Book 3. ch. 5. p. 230.

64 In respect of any work undertaken or done in their respective art or calling.

65 Also superficiario, L. 8. tit. 13. Lib. 10. Nov. Rec. cited. Palacios says, superficiario is he who possesses a house or building on the soil or ground of another, for which he pays some annual rent (pension). Contractus superficiarius is a contract, observes Wood, in which a man hires ground to build upon at a yearly rent. See Inst. Civ. Law, Book 3. ch. 5. p. 239.

66 Of the vendor, adds Palacios, provided he be within the fourth degree. Whether this computation is to be according to the canon or civil law, is a question which has its several various supporters; and there being no declaratory law to the contrary, the Learned Professor gives his assent to the computation of the canonists.

67 And also if it should be made to a relation, says Palacios, according to the common opinion.

68 Or able. See L. 7. tit. 13. lib. 10. Nov. Rec. cited.

69 Against minors and absent persons. See L. 2. tit. 13. lib. 10. Nov. Rec. cited.

with respect to sales at public auction,70 the person who exercises it paying the costs, diligences, &c., L. 9. tit. 11. lib. 5. Rec. [L. 4. tit. 13. lib. 10. Nov. Rec.] 6th, If many things belonging to an ancestoral estate be sold for one price, all ought to be taken or none; but if they be sold for different prices, one may be taken without the other, L. 10. tit. 11. lib. 5. Rec. [L. 5. tit. 13. lib. 10. Nov. Rec.] 7th, If the thing be sold on credit, it may be taken on giving security within the nine days to pay the price for which it was agreed to be sold, L. 11. tit. 13. lib. 5. Rec. [L. 6. tit. 13. lib. 10. Nov. Rec.] 8th, That this right of tanteo by reason of relationship only takes place with respect to property inherited, and not that which the vendor acquired by contract inter vivos,72 L. 15. tit. 13. lib. 5. Rec. [L. 3. tit. 13. lib. 10. Nov. Rec.] 9th, The hijosdalgo, according to the custom (fuero) of Castille, have this right of tanteo or redemption of the property of their ancestors without limitation of time in respect to the property which descended from their father and grandfather de abuelo arriba,73 L. 1. tit. 4. Lib. 4. del Fuero viejo de Castilla.

§ 5. When it happens that the purchaser loses the thing judicially, there must be a distinction made between him who may be a bond fide possessor, and him who may be so mala fide; that is, he who, at the time of the purchase, should know that the thing did not belong to the vendor, The first makes the fruits his own until the day of contestation; but the latter is obliged to restore them, Ll. 39 and 40. tit. 28. P. 3. [Ll. 39 and 40. tit. 2S. P. 3.]

74

With regard to the expenses which both might have incurred, it must be observed that Garcia de expensis. cap, 1. num. 10. distinguishes four classes of expenses: The first are necessary, with- [200] out which the thing will be destroyed, the second profitable or advantageous ones which improve the thing (mejoran); the third, those of mere pleasure, such as paintings, &c.; and the fourth, those which are incurred for the purpose of gathering in the fruits.

According to our laws, 1st, As well the possessor bonâ fide, as he

Even though by judicial order. See L. 4. tit. 13. lib. 10. Nov. Rec. cited.

Palacios says, Azevedo, on L. 10. tit. 11. lib. 5 Rec. excepts two cases, in which one cannot be taken without the other, which see.

Palacios says, that Gomez on L. 73. de Toro, n. 3. is of opinion, that the same takes place in respect of property acquired by the vendor, although it be by contract, inter vivos, if he acquired it from his ascendants. As, for instance, if any of them should have made a donation, propter nuptias, or should have given any of their property by way of mejora; and that it is certain, that the reason there is for its taking place with respect to property inherited, exists for its doing so with respect to the description of property last mentioned. 73 But not from ascendants farther removed than thein. Sce L. 1. tit. 4. lib. 4. Fuero viejo de Cast. cited.

Palacios observes, that not only is a person said to possess in bad faith, who knew at the time of the purchase that the property did not belong to the vendor, but if he afterwards comes to know it, and from the time he does know it; and in so much is the latter a possessor in bad faith, that if, after knowing it, he should make any new work on the property purchased, and should be evicted by the lawful owner, he shall not be able to recover the expenses he incurred in respect thereof, L. 41. tit. 28. P. 3.; nd in the same manner he shall be obliged to restore the fruits of the property received, L. 39. tit. 28. P. 3.

malâ fide, may recover necessary expenses, retaining the thing for the payment, L. 44. tit. 28. P. 3. [L. 44. tit. 28. P. 3.] 2d, Only the possessor bond fide recovers expenses laid out for the advantage of the property (provechosas), Ll. 41, 42, and 44. tit. 28. P. 3. [LI. 41, 42. and 44. tit. 28. P. 3.] 3d, As also those of mere taste, L. 44. tit. 28. P. 3. [L. 44. tit. 28. P. 3.] 4th, Both may deduct the expenses of the fourth class, L 42. tit. 28. P. 3. [L. 42. tit. 28. P. 3.] vide el Garcia, de expensis, cap. 1, 2, and 5.

TITLE XIV.

OF RENTS, RENTING. (DE LOS ARRENDAMIENTOS.)

CAP. 1. THE second onerous contract is that of renting, by [202] which one person lets or grants to another the service or labor of his person or beast, or the use or enjoyment of a thing, for a certain time, which must be paid in ready money, L. 1. tit. 8. P. 5. [L. 1. tit. 8. P. 5.] Our laws distinguish renting (el arrendamiento) from letting (el alquiler), applying the term rent to an estate or land (heredad), and the latter to a house, a castle, &c., L. 1. tit. S. P. 5. [L. 1. tit. 8. P. 5.]

§1. This contract then consists in three things; in the consent of the parties; in the thing or labor which is rented or let; and in the price. In the first place hence it is, that renting derives its perfection from consent. 2d, that all things capable of use and mechanical

1 Vide contra Wood's Inst. C. L., p. 236; 1st, Browne, C. L. p. 178. It is said in the text, that the price or reward must be paid in ready money; but this appears to be only applicable to the term loguero, not arrendamiento; which first term may, perhaps, be properly rendered wages, or reward, or remuneration for services or labor, whether of man or beast: for by the civil law, the rent or reward is not, as in the contract of buying and selling, confined to ready money, but is extended to every thing that consists in num. ber, weight, and measure, or in a certain quantity of provisions, or in a portion of the fruits; and vide L. 7. tit. 11. lib. 10. Nov. Rec.; and note 1. Ibid., and nota Greg. Lop., L. 4. tit. 8. P. 5. Since the foregoing part of this note was written, the Translator has procured the edition of the text with the notes of Dr. Palacios, professor of laws in the University of Huesca, of which it will be seen he has availed himself whenever the transcription of these notes or their substance appeared useful. The Learned Professor observes on this part of the text, that the definition given according to the law cited (L. 1. tit. 8. P. 5.) belongs to Loguero. that arrendamiento, according to the same law, consists in renting an estate, or any other thing for a certain rent: that it is of Loguero and of arrendamiento, L. 1. tit. 8. P. 5., speaks; and of the word alquiler or alquilar, that L. 5. Ibid., makes mention. But that in the language or terms of the present time, the term logar is unknown, except in some particular towns; where, to agree with a man for his services or labor, to reap, &c., is called logar; and logarse is said of those who hire themselves, or furnish their labor for wages: that the term arrendar is made use of in speaking of renting or leasing an estate or possession; the term alquilar, in speaking of the letting or hiring any house, lot of land, or other things, for a certain sum and time; and ajustar or concertar (to bargain or agree), is said in speaking of work done and performed (las obras.) That the word arrendador, which the text applies to the lessor or person who lets to rent or hire, is applied also by the laws, and without travelling out of this 8th Title of the 5th Partida, to the lessee or hirer; and if regard is had to the common acceptation or use of the day, it is more applicable to the latter than to the former; but that, properly speaking, the latter ought to be c ́iled arrendatario (lessee or hirer). That in Febrero Reformado, P. 1. tom. 2. c. 10. § 1. num. 1., the person who lets to rent or hire, is called arrendatario; but that this is a mistake. A reference, however, to the 4th edition of Febrero Reformado, published at Madrid 1807, tom. 2. Par. 1. cap. 19. § 1. num. 1. p. 1., will show that the learned Professor is deceived, and that the reverse and proper definition is given to the word arrendatario.

2 The word cosa is made use of in the text; but it is apprehended that this is a typographical error, and that the word casa is meant.

VOL. I.-28