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2. Nec uidetur abesse, si per eum factum est aut fiet, quo minus fundum emptor possideat. erit ergo ex empto actio, non ut uenditor uacuam possessionem tradat, cum multis modis accidere poterit, ne tradere possit, sed ut, si quid dolo malo fecit aut facit, dolus malus eius aestimaretur.
69. PROculus libro xi epistularum. Rutilia Polla emit lacum Sabatenem Angularium et circa eum maintainable on a contract which is ab initio a nullity. See, for a full argument, Vangerow, $ 605, where the circumstances under which redress was obtainable by (1) a suit on the contract, or (2) exceptio doli, or (3) actio doli, are also explained. The special title De dolo is D. iv. tit. 3.
As to the idea of fraud in connection with contract in English law, see dicta cited on p. 54 supra. The distinction above mentioned has no place, except in the sense that it is only material fraud (dolus dans causam) that founds any claim for relief. The purchaser, if he has been induced to enter into the contract by the fraudulent misrepresentations or concealment of the vendor, may at his option rescind the contract within a reasonable time, provided that it is still possible to restore the parties to their original position, and that no third parties have in good faith and for value acquired rights under the contract; or, instead of rescinding, or where the right to rescind is lost in one of the above ways, he may stand to the contract and claim damages in an action of deceit. See Benj. p. 432 sq.
Some of the older Scotch authorities certainly do recognise the distinction between dolus causam dans as grounding an action for reducing the contract and dolus incidens as giving relief by damages only; but, though the expressions are still in use as synonyms for material and non-material fraud, the rule of law must now be held to be that fraud of the latter kind has no legal effect. Bell, Com. i. 262; Prin, $$ 13, 14, with the editors' notes. There must be material fraud, i.e. fraud inducing the contract, in order to entitle to relief even by damages. When there is such fraud, the party defrauded has a choice of remedies so long as matters are entire: the contract is not void, but voidable at his option, on condition that restitutio in integrum is still possible, and that the rights onerously acquired by third 2. The vendor is guilty of fraud if it has been or is due to him that the purchaser has not obtained possession of the land. An action on purchase will therefore lie, not to compel the vendor to hand over the exclusive possession, for there are many causes which may render that impossible, but for the purpose of fixing the damages for any breach of good faith, past or present.
69. PROCULUS. Rutilia Polla bought the lake Sabatenes Angularius and ten parties in good faith would not be defeated by its rescission ; if reduction is barred, or in any case if he prefers the alternative remedy, he has his action to recover the damage he has sustained by reason of the fraud. There is thus substantial agreement between Scots and English law as to the effect of fraudulent representations giving rise to a contract for the sale of goods, as was assumed in Houldsworth v. Glasgow Bank (1880) 5 App. Ca. at p. 323. Hence, though the actio quanti minoris is rejected by the law of Scotland generally both in the case of heritage and of moveables, there seems to be an exception where fraud is proved ; that is to say, the buyer may retain the goods and claim an abatement of the price in respect of the fraudulent representations of the vendor (Amaan v. Handyside (1865) 3 Macp. 526; Dobbie v. Duncanson (1872) 10 Macp. 810). This is contrary to the general rule, which is that, where goods are delivered disconform to contract, the buyer must return them without delay, or at least reject them by some distinct act, otherwise be is held to be satisfied and must pay the full price. Bell, Prin. $ 99. In England the actio quanti minoris is allowed generally, so that the buyer, though he has accepted the goods and though no fraud is alleged, may set up against the seller a breach of warranty in diminution or extinction of the price. See S. G. B. $ 54.
§ 2. Proculus seems to rest the seller's obligation to deliver (tradere) on the basis of the implied warranty against fraud. But he must not be taken to mean that the seller satisfied his obligation by showing that, through no default of his, it had become impossible for him to give full legal possession; that would be contrary to what is stated in D. 19. 1. 2 and 3. Cp. L. 25 supra.
L. 69.—Various guesses have been made at the meaning of Angularius, as 'angular in shape'lying in a bend, etc.