Page 122 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
ius commune approach which allows for some exceptions to that principle are merged in the works of Molina. When he writes about the law applicable to the early modern Castilian forum externum he states, in keeping with the rule that consequential loss is only due, if the seller had acted in bad faith, that the following general liability rule applies in early modern Castilian civil law; the seller who knew of defects in the object sold is liable for all contractual damages, whereas the ignorant seller can only be sued for a price reduction.
'The same D. 21.1.4 makes an exception for two types of non-corporeal defects in slaves for which the seller contrariwise has to answer, sc. when the slave is a thief or tends to run away. D. 19.1.13pr. explains that if the seller knew of those defects, he is liable not only for those defects, but also for all damage which they might cause. And this is not different with corporeal defects. However, if he was unaware of the defects, he is liable for price reduction in the event of the defect of being a fugitive. For the defect of being a thief, he is not liable, unless he had assured that the slave was trustworthy. Yet, provision 5.5.64 of the Siete Partidas seems to treat both cases similarly, sc. it seems to grant a remedy for price reduction both against the ignorant seller who does not reveal the slave's inclination to run away and against the ignorant seller who does not indicate that the slave is a thief, unless you hold that this topic should be treated in accordance with ius commune.'198
So far nothing new. The Siete Partidas and medieval ius commune shared the same general principle. Yet, unlike medieval ius commune, Molina does not allow for exceptions. With regard to the texts in the Corpus iuris civilis about leaky barrels, he further pursues the theory formulated by Bartolus that D. 19.1.6.4 contains a presumption of knowledge of the seller of leaky barrels. The seller should have been acquainted with the condition of the barrels he was selling. The fact that one is leaky, indicates that the seller has not fulfilled his office as seller of barrels properly, but not more than that. This presumption can be proven by the seller to be unjustified. Under the influence of confessional doctrine, Molina discards an all too strict reading of D. 19.1.6.4 and D. 19.2.19.1.
'Pertaining to the lease or sale of barrels, when the lessor or seller ignores the defect there is decreed as such, because he should have attended to the quality of the barrels he handed over. Thus, this text \[sc. D. 19.1.6.4\] presumes that the ignorance of him who sells or leases out defective barrels to that use is reproachable. This is different in the case of someone who gives land in lease that is not suited for cattle to graze upon, which fact he had not experienced before. After all, this text \[sc. D. 19.1.6.4\] is based on a presumption and certainly has no force in the forum internum
198 Molina, De iustitia et iure, disp. 353, no. 8, p. 245: 'Eadem tamen l. \[D. 21.1.4.3\] haec duo vitia animi servorum excipiuntur, de quibus venditor tenetur, si fur sit, aut fugitivus. Et l. Julianus \[D. 19.1.13pr.\] explicatur, si venditor ea vitia sciebat, teneri eum, non solum de illis, sed etiam de omnibus damnis inde subsequutis, non secus ac vitia essent corporis: si autem illa ignorabat, teneri actione quanto minoris de vitio fugitivi, de vitio vero furi non teneri, nisi asseruerit illum fidelem esse. Lex tamen Castella 64, tit. 5, part. 5 paria videtur efficere, venditorem, ignorantem servum esse furem, id non detegere, et non detegere vitium fugitivi atque utrobique concedere videtur actionem quanto minoris. Nisi dicas exponendam esse iuxta ius commune'.
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