The maxim quisensit commodum debet et sentire onus signifies that one who accepts the benefit of a transaction must also accept the burden of it

“The maxim quisensit commodum debet et sentire onus signifies that one who accepts the benefit of a transaction must also accept the burden of it”.

“The maxim quisensit commodum debet et sentire onus” means that who enjoys the benefit must also to bear burden, so the person who believes the advantages of a right must also welcome the advantage. In other words, a privilege is subject to its conditions.

It is normally encountered in the case of covenants linking to land. The most common rule is that the burden of a positive covenant cannot with the land. At the same time as a covenant needed the expenditure of money or the doing of some constructive act is binding upon the person who initially enters into the covenant, which is not binding upon descendants in title.

The regulation that he who enjoys the benefit, ought also to bear the burden is the exception to this. A typical case would be one where parties granted rights to use a road owned by a third party had agreed to make payments towards its upkeep. The obligation to make payments is a positive obligation, but will be binding on successors in title in the event that they wish to use the road.

THE result of the destruction or in part of the subject-matter of an executor bilateral contract, by the terms of which real property is to be expressed and money paid therefore, either concurrently with, or following to, the implementation of a deed of conveyance, in this way it relieves the vendee from any obligation at law.[1] It is not easy to reach any other outcome, since the only enforceable right acquired at law by the vendee is a right to convalesce damages for a breach of the contract. The vendor remains the owner of the property with all the incidents of ownership. The ownership of the property and the entire incident still belongs to vendee. As we know, vendee has at law no ownership of the property and has no power to control it, a court of law cannot, because of the reason of pitch the loss upon him, delight him as if he were the holder. This result can be happened in equity when for the terms of the contract the factor of control, on the side of the vendee, is evenly imperfect in equity. Consequently, under the contract where vendor has the liberty to sell or not as he satisfies, the vendee, doesn’t have any rights, should not be issued to any burdens. This is because this cause that the result reached in Goldman v. Rosenberg ought to be pursued in all jurisdictions. Here in this case, an action considering an accounting between co-partners, which found that the defendants contributed, because it is a piece of the capital stock, certain enhanced real estate, where they decided to go back on the closure of the firm on the assessment where firm toke it. The plaintiff, on the dissolution of the firm, sought to force the defendants, in spite of the devastation of the buildings over the land, for getting back the property at the valuation above mentioned, less the amount of the insurance composed by the firm. That was held that firm needs to bear the cost. Repurchasing contract was clearly not for the advantage of the defendants but for the benefit of the firm. The defendants leap themselves to take; the firm did not unite it to sell. Where property was treated as firm’s assets, subject to all the vicissitudes for the firm business. “The defendants, said the court,’ were not the owners, legal or equitable; they did not have an insurable interest in the premises.” For throwing the burden of ownership upon one who was present at the time of the destruction of the buildings, didn’t have the benefits of ownership, either at law or in equity, would have been noticeably unfair. Certainly, if a vendee has not compelled himself to take, but has only obtained the privilege of demanding a transportation, neither law nor equity can adapt his opportunity into a duty and force him to grab. The problem, therefore, for bearing the loss, resulting upon his right to insist specific recital, can never happen. Is the fact that impartiality will verdict specific appearance of a contract, in that case the one party has contracted to express at a future day and the other to believe a conveyance, and therefore pay the time of the conveyance, or at some following time, rationalize a court of equity to through the vendee a loss which at law will fall upon the vendor? What equity should do in these situations that seem to depend largely upon what equity has done in cases not presenting for consideration this particular question? If the rights of the parties to such a contract drawn from On behalf of the law of trusts, the right of the parties for a contract have been determined in equity on principles, rather than on the principles found in the law of contracts, then a reason may be found why a result should be reached in the case invented differing out of that reached at law. At law the relation was in its beginning a contractual one, which didn’t a matter by the payment of the obtain money. All that the vendor has done is to receive the purchase-money in accordance with the terms of the contract. The result is that the vendee has an absolute right, where before his right was conditional. But it is the power of control, and the rights conferred upon the vendee on the making of the contract, that gives him his standing in equity, not the simple payment of money.[2] Why vendee experience the loss who has paid for that he has not received, if his contract had not essential a payment in advance, he could have rejected to pay, for the reason that the unfeasibility of the vendor giving him that for which he was to pay? In case of equity, a man who is paid for that which the other party has contracted to give, would seem to be in at least as good a position as one who has failed to pay for that which he has not recognized. If it is unfair to induce a vendee to pay for that which the vendor cannot express, it would seem equally unfair to allow the vendor to keep that which has been given to him in trade for something which he cannot provide. In every case, if the question is advanced as a question of contract, clean and clear, something is being given, for nothing. In none of the case, if it is to be advanced as a question of belief, the justice would seem to arise, not from the compensation of the procure money, but from the reasonable right attained because of the principle of specific presentation of agreement. That writer grant’s that if the defeat happens later than the time for the recital of the agreement, on that time when, excepting the loss in query, the vendor would be allowed to specific recital, although the vendor’s rights at law are left, the loss have to drop on the vendee. A picture of that case would appear to be the case wherever a vendor is in failure to pay at the time of act, here in many conditions when, aside his evasion, he can implement specific act. Clearly, in this situation, a court of equity is enforcing a right not legal in its temperament, where no right exists at law, and it looks hard to observe why a vendee, not in evasion, must have the loss unnerved upon him as the loss occurred after the time for the recital, at what time he had the loss happened prior to such a time no such legal responsibility would have been incurred.[3] The clarification has shown for this result is that “when performance of a contract is enforced in equity, the performance is held to narrate back to the actual time set by the agreement for its performance; and therefore, if recital be enforced in the case hypothetical, equity will observe the land as having fit in to the vendee when the loss happened.” In as-signing this reason in justification of such a result, the writer seems to have lost sight of the fact that the doctrine of relation is a fiction that can only be invoked in order to promote justice, for an example, for preventing some unfairness or some problem that would or else arise. Only, then, justice requires the policy of relation to be raised, in order that the loss may be fearful upon the vendee, it should be for the cause that it would be unfair not to chuck the loss towards him.[4] However why must a party, not in evasion under his agreement, for bearing a loss as it occurs following the time for performance, when he should not have been bound to bear the loss if it had happened prior to that time? The similar writer advises as a doubt to throwing the loss ahead the vendee in the case under deliberation, so as to, to do so, it is essential to contain the act relate back to the time when the agreement was made, for that kind of relation cannot be defensible, for the purpose of the parties that the transference ought to be implemented on a day ensuing to the making of the contract with to the time of loss. This doubt is undeniably mortal if the policy of relation must be invoked. Other than it is submitted that, in case of the spot taken in fairness as to the vendee’s rights, on that position no greater reason for invoking such a principle in the case hypothetical, than there would be to raise the principle of relative in the case of a mortgagor or mortgagee, when the question came up as to whether the mortgagor or the mortgagee should bear the loss, consequent upon the destruction of belongings, although in the control of the mortgagee. If the loss is to be thrown upon the vendee it is as he is in equity significantly the owner of the property, because a result, fairness requires that having the benefits he should bear the load of ownership. It is because of his evenhanded, not his legal, ownership that the vendee should tolerate the loss. It must also been recommended that many of the results reached in this class of cases depend upon the doctrine of equitable conversion. It is said that evenhanded adaptation is a doctrine resorted to by a court of equity to give result to the purpose of the owner of property.[5] A consequence concurred in by justice. It has urged, where the objection to the doctrine that the loss ought to be thrown in the lead the vendee, that, in a doubtful case, where loss lie someplace it falls saves litigation.’ It is indubitably correct that if a court cannot satisfy it, where a plaintiff is free to the relief what he hunts for, it ought to not give a decree in his errand. For doing something would be clearly unfair to a defendant against whom the court is not ready to say the plaintiff has recognized a right. That the court should leave the loss where it falls, to save court case, is a proposal which, positioning unaccompanied, should not be given acquiesce, and is unimportant if the court is not capable to say that the plaintiff has recognized a right. It has been further recommended that it is wiser to have the party in ownership of the property care for it at his danger; which is thrown the loss in such a case on the vendee is to tempt the vendor to be wanting in the exercise of that care which he would otherwise use.[6] For taking into account this protestation, it must be remembered that, when the loss is occasioned by the inattention of the vendor, and so as to reality can be established, the loss will be borne by him, and not by the vendee. In sight of this reality, unless the justice of the case requires the vendee to bear the loss, the necessity of throwing the loss upon the vendor in order to cover proper care on his part does not seem as great as to require injustice to be done to a careful vendor. That abandon may be a difficult thing to show is barely a reason for throwing a loss ahead a man who, in the nonexistence of negligence, ought not, at the time of justice, to be held answerable. The realistic advantage, whatsoever which can be, of throwing the loss on the vendor to avoid the subrogation of an insurer to the rights of a vendor against a vendee, one does not seem as immense as to entail unfairness to be done the vendor. It is urged that the vendee should not be treated as enjoying the jus disponendz, unless he can, under the recording acts, provide dynamic notice of his fair ownership. The cause assigned for this place is that, in the deficiency of such a right, the vendor has his power to deny the vendee of his attention by transmission the property to a blameless buyer. A person can barely think of requiring the trustee of an express trust to cover the belief against the loss of trust possessions in a case where the trustee has it in his power to beat the trust by assigning to an innocent buyer for value, and where, hence, a deceitful trustee might profit at the cost of a trust.[7] Why, at that time, should an sincere vendor suffer a loss, since, had he been deceitful, he may have defrauded the vendee of his rights, leaving him only a claim for compensation? Correctly or incorrectly, the writer imagines the vendee in the case under consideration has been given in equity rights analogous to those of the trust, with substantially the benefits of equitable ownership. Since it is a necessary outcome, in the view of the writer, he must abide, when one of the burdens of ownership, the loss involved in the obliteration of property, in entire or in part, not including the fault of the vendor. Such is the result reached in Eng-land and in the majority of the jurisdictions in this country.

From last couple of years there seem to have been a number of cases based eventually on a general principle that a person who takes the benefit of an arrangement will be bound by any associated burden contained in it in spite of the reality that he was not a party to the original agreement. Potentially the most severe request of this standard, and the most contentious, has been in Halsall v. Brizell [8]and cases which pursued it. The idea initiated in Halsall v. Brizell and later developed by Megarry V.-C. in Tito v. Waddell (No. 2)[9] is that a person may, in proper circumstances, can be hurdle by an obligation which is forced by the same transaction that grants a advantage of that he needs to take advantage but is not a condition of that benefit. Megarry V.-C. referred to this as an application of a pure principle of benefit and burden to contrast the situation with the application of a principle of advantage and burden in the case of a conditional or qualified right. Here the term “pure principle” will be used to refer to the request of a belief of benefit and burden in Halsall v. Brizell and the cases which have followed it. Since the decision in Halsall v. Brizell, there has been disagreement as to this nearly all new claim of a principle of benefit and burden, the alleged problems being the lack of clearness and firmness as to the necessary necessities for its request and its potentially far reaching things. That kind of problems evidently inclined the House of Lords at the time of deciding the case ofRhone v. Stephens[10] and, since that decision, a number of doubts as to whether the principle of benefit and burden may have the consequence that has been recommended. A principle whereby a person can be forced to fulfill with compulsion that would not otherwise connect him has undoubted attractions but will be impossible if it indirectly contradicts undoubtedly recognized rules that stop obligations binding non-contracting parties.


Bailey v. Duncan, 4 Mon., 256..

Halsall v. Brizell Mass., 514

Halsall v. Brizell Mass., 514

King v. Ruckman, 24 N. J. Eq., 556.

Langford v. Pitt, 2 P. Wms., 629.

Langdell, Contracts, 2 Ed., 8.

Langdell, A Brief Survey of Equity Jurisdiction, I H. L. R., 376

Megarry V.-C. in Tito v. Waddell (No. 2)

Oldham v. Sale, I B. Mon., 76.

Rhone v. Stephens

Wells v. Calnan, I07 Mass., 514

[1] Wells v. Calnan, I07 Mass., 514.

[2] Foster v. Deacon, 3 Madd., 394: Phillips v. Silvester, L. R., 8 Ch. Ap.

[3] L ysaght v. Edwards, L. R., 2 Ch. Div., 499.

[4] King v. Ruckman, 24 N. J. Eq., 556.

[5] King v. Ruckman, 24 N. J. Eq., 556.

[6] Bailey v. Duncan, 4 Mon., 256.

[7] Oldham v. Sale, I B. Mon., 76.

[8] Halsall v. Brizell Mass., 514

[9] Megarry V.-C. in Tito v. Waddell (No. 2)

[10] Rhone v. Stephens