Page 249 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
lessee's loss'.169
In the first place, the lessee leases an object that is suited for its use. If the item leased does not meet this requirements, the lessee can sue for all damages (id quod interest), because he is not supplied with what he should have been supplied with under the lease contact. Noodt continues:
'Next to this reason there is another; the master of an ill or defective slave or animal will not easily lease it out with the chance of receiving rent, because it is worthless. With the thing deteriorated, the damages incurred will in no time exceed the profit of the rent, because the thing is used for a short period (after all, that is how lease is carried out). In sales this is different, since it is concluded for eternity, if we consider the alienation of the thing. According to the civil law, it suffices in sales that the seller transfers the thing's unhampered possession. He is not obliged to do more, unless something else is thought right. Therefore, I must add, why would not someone eagerly wanting to get rid of a defective or ill slave or animal forever, disguise illnesses and defects, so that he might realize the purchase? So there was a lack of foresight in the civil law of sales and need of the Aedilician Edict. Not so in lease, where the civil law provided for the ordinary action on lease and where there was no fear of the danger feared in sales. Thus, I have shown the right path to the understanding of D. 21.1.63. Master Cujas was of a contrary opinion, Observationum libri XII, c. 38.'170
Thus, secondly, repeating Voet, Noodt contemplates that the specifities of the lease contract make it hard to profitably lease out a defective thing, since the damages the lessor of a defective item has to compensate will in the course of time exceed the rent he receives. This is different with sales. The only obligation for the seller is to ensure the buyer's unhampered condition of the thing, not to deliver if free from defects. Consequently, the sales contract enabled a seller to alienate a defective object forever without further consequences. To prevent that from happening, the aediles introduced their edict. Hence, Noodt does not claim that the decisive difference between the two contracts lies in the transfer of ownership itself. Transferral of ownership merely enabled an unfair outcome of a sale for the correction of which the sales contract simply lacked a remedy. The aedilician edict was introduced to address that specific unfairness. The lease contract
169 Noodt, Commentarius, in: Opera omnia, vol. 2, to D. 21.1, p. 451 \[center right\]: ' Posterior ratio obscura est: sed huc fert eius scopus: quod conductor mancipii vitiosi aut morbosi non eget Aedilitio Edicto, ubi potest eo uti ad opus ad quod conduxit: sic enim satisfactum est locationi et conductioni, tantum ad usum et fructum comparatae, quod si non potest eo uti et frui: iure civili habet actionem ex conducto ad id quod interest'.
170 Noodt, Commentarius, in: Opera omnia, vol. 2, to D. 21.1, p. 451\[center right\]: 'Ad hanc rationem accedit alia: quod dominus mancipii morbosi aut vitiosi id nulli facile locabit spe mercedis; eo deteriorato usu temporis exigui (hoc enim modo fit locatio) majus facturus damnum, quam lucrum. In venditione aliter se res habet: nam perpetua est eius causa, spectans ad alienationem: in qua nisi aliud placuit, venditori sufficit iure civili, tradere vacuam possessionem; nec ultra tenetur. Quid, si addam, unumquemque mancipium morbosum aut vitiosum a se lubenter dimittere in perpetuum: idque ut obtineat, etiam morbos et vitia \[non\] dissimulare? Deficiente igitur in venditione providentia iuris civilis: opus erat Edicto Aedilito: quo non erat opus in locatione; ubi iure civili suppetebat ordinaria ex conducto actio, nec metuendum erat periculum quod a venditione timebatur. Aperui iter rectum ad intellectum d.l. 63. contrarium tenuit D. Cujacius, lib. 12, Observ., c. 38'.
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