Page 120 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
same for a lessor who leases out defective barrels without being aware of their bad condition. As earlier observed, medieval scholars were hard put to assign these texts a place in a framework in which full liability was not granted in the absence of fraud. These texts, however, seem to do just that. Medieval scholars consequently postulated either a presumption of knowledge by the seller or lessor of the barrels, or an increased liability for sellers or lessors of particular things, or ascribed the increased liability to the seller's or lessor's lack of fulfilment of their pre-contractual duty to regularly inspect their wares.189 The Siete Partidas adopt the view that lessors of barrels are liable for their defects, even if they were not aware of them, because 'every man should know whether the thing he leases out is good or bad'.190 Moreover, the Siete Partidas hold both knowing and unknowing lessors liable for extrinsic damages, for example wine or olive oil which leaks away because of the defect. The Siete Partidas thus follow the so much debated provisions D. 19.1.6.4 and D. 19.2.19.1 which state that no matter whether he was aware or not, the seller or lessor of a defect barrel is liable for all loss suffered on that account by the buyer or lessee.
Similar to their medieval ius commune colleagues, early modern Castilian scholars had to come to terms with the problematic Roman law texts D. 19.1.6.4 and D. 19.2.19.1. Early modern scholastic writers who do their best to explain this text for the forum internum dismiss the views current in medieval ius commune and the Siete Partidas. They discard the controversial content of D. 19.1.6.4 and D. 19.2.19.1 and exclude the unknowing seller from full liability or liability at all. A driving force behind such efforts seems to have been the wish to avoid a liability for full damages without bad faith. In this requirement of bad faith191 it is difficult not to see the influence of Aquinas who had formulated bad faith as a starting point of all questions and answers pertaining to the seller's behaviour in sales.192
One of the scholars who in keeping with Aquinas dismissed the liability of a seller or lessor in good faith was Azpilcueta. El doctor Navarro, 'prince of the canonists' and teacher of Covarrubias193, interprets the liability which the puzzling D. 19.2.19.1 contains as follows:
'\[About curing sins in locatio conductio\] LXVIII: He \[sins\] who leases out barrels or
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'.
189 See 2.2.3.
190 SP 5.8.14, in: Los códigos españoles, vol. 2, p. 652: porque todo ome deve saber, si es buena, o mala,
aquella cosa que aloga.
191 Early modern authors use the word culpa for facts which in justinianic Roman law would qualify as bad
faith (dolus). Mousourakis, Fundamentals, p. 199. A seller who knows about a defect, but does not reveal it to the buyer
acts in bad faith, according to D. 18.1.35.8. Yet, early modern authors express such behaviour in terms of culpa.
192 Aquinas, Summa, 2a2ae, q. 77, a. 3, ad tertium. See section 3.2.2.1.
193 See E. Tejero Tejero, 'Azpilcueta, Martín de', in: DBE, vol. 6, p. 430-433.
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