Bertrand v. Arcueil

StisELL, J. dissenting. I adhere to the opinion formerly adopted in this case. I consider the sale of a family of slaves as coming within the spirit and intendment of art 2518. My reasons for that view have been already expressed, and I may add, by way of practical illustration, that I feel assured that any one desiring to purchase servants, if he had an offer of three slaves bearing to each other the relation of husband and wife, parent and child, as in this case, and of three others having equal physical and other qualities, but not so related, would give a higher price for the former than the latter. I also consider the date of the sale the controlling point of time, to which reference is to be had. If the nature of the things sold was, at the date of the sale such as to subject the contract to the right of a total rescisión, the subsequent events, adverted to by the defendant’s counsel, ought not to be permitted to affect the right. The contract was completed between the parties, at the date of the sale. The legal incidents of a contract are not to be severed from the contract itself, of which they form a part. The right of rescisión, if the things sold be *434 affected with redhibitory vices, is as much a part of the contract, as the price, or any other ingredient of the contract. The law implies the right, and the implication of tho law is as efficient as the expressed will of the parties. The case-then stands as though it had been expressly written in the act of sale, the “ vendee shall have the right to rescind the sale for the whole, should the father or mother of this family now sold be found to be affected with a redhibitory vice.” To the authorities cited in the original opinion, I may add the following from thePandects: Hoc edicto expressum circa paria mularum. Sed et quotiescunque manifestum est quern aut non venditurum, aut non empturum fuisse nisi omnia, una venditiovideri debet, licet in singulas res sint pretia separatim constituta. Plerumque propter morbosa mancipia etiam non morbosa redhibentur, si separan non possint sine magno incommodo, vel ad pdetatis rationem offensam. Digest, lib. 21, tit. 1, s, 35.