Page 49 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
seller was not aware of the defects in the thing sold. D. 19.1.6.4 is about a seller of a barrel which was not intact. The seller is liable for the buyer's full interest, no matter whether he knew of the thing's defective state or not.61
'If you sell me a kind of barrel and state that it has a certain measure or weight, I can sue you on the sales contract, if you deliver less. But if you sell me a barrel while affirming that it is sound and it turns out not to be so, you also have to compensate me for that what I lost because of that affirmation. If, on the other hand, you had not acted as if you would deliver the barrel intact, you are only held to be liable in the event of fraud or deceit. Labeo thinks otherwise and is of the opinion that the only rule that counts is that he \[the seller\] must deliver intact in all respects, unless there was agreed to the contrary. That is the right view. Minucius states that Sabinus replied that this was also owed in the event of leased earthenware vessels'.62
It is obvious that the last part in which Labeo's view is expounded would attract most attention from medieval scholars. The given opinion does not fit in with the framework based on D. 19.1.13(14)pr. Consequently, work had to be done to satisfactorily explain this text in the structure offered by the rest of the texts in Justinian's corpus.
Placentinus († 1192) merely mentions the cited barrel text and the one that contains the same in the event of lease63 as exceptions to the rule that sellers or lessors not aware of defects in their wares are liable under the action brought on the contract for price reduction at most.64
De Revigny in his comments on C. 4.58.1 opines that 'he who is an expert in the sale of cloth, must make \[the buyer\] acquainted \[with the defect\]'.65 Though other medieval scholars do not link such a duty of sellers based on their professionalism with
61 D. 19.1.6.4 (sold barrel); D. 19.2.19.(21)1 (leased barrel).
62 D. 19.1.6.4: 'Si vas aliquod mihi vendideris et dixeris certam mensuram capere vel certum pondus
habere, ex empto tecum agam, si minus praestes. Sed si vas mihi vendidieris ita, ut adfirmares integrum, si id integrum non sit, etiam id, quod eo nomine perdiderim, praestabis mihi: si vero non id actum sit, ut integrum praestes, dolum malum dumtaxat praestare te debere. Labeo contra putat et illud solum observandum, ut, nisi in contrarium id actum sit, omnimodo integrum praestari debeat: et est verum. Quod et in locatis doliis praestandum Sabinum respondisse Minicius refert'; the text probably deals with storage jars (amphora), which were partly buried in the ground. For that reason, a lessee cannot test whether or not they are leaky. See K. Wernicke, 'Amphora', in: Pauly's Realencyclopädie, I, 2 (1894), pp. 1969-1976.
63 D. 19.2.19(21).1.
64 Placentinus, 'Cum essem Mantue', no. 235, p. 56.
65 Revigny, Lectura super codice, to C. 4.58.1, fo. 207r (top left column): '... debet certiorare illum qui
expertus est in emptione pannorum', cited in Bezemer, 'Stand als maat', p. 54. 35