Page 189 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
that an ignorant seller can not be held liable for more than the purchase price and that a knowing seller is liable for all the buyer's loss.130 Knowingly refraining from informing the buyer of the goods' defective state and falsely guaranteeing the absence of defects is equalled to fraud (dolus).131
One knotty text in the Corpus iuris civilis, D. 19.1.6.4, however, breaches the rule that an unknowing seller should not be held liable for more than the price he paid for the thing sold.
'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, 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'.132
The crux is in the last two sentences in which it is assumed that it is part of the obligations of a seller of barrels that he delivers his wares in good condition and that, if he does not, he is liable for all the buyer's losses. Medieval scholars found this difficult to square with the fact that in the event of a latent defect the action on the sales contract for all loss was only granted in case of fraud and deceit or when an explicit warranty was given. Yet, in defiance of this neat framework medieval scholars had squeezed from other texts of the Corpus iuris the present text boils down to a liability for all losses resulting from a barrel being defective without the seller knowing it.133
Mudaeus tried his luck in explaining the text. First, he propounded the medieval communis opinio. Medieval scholars refuted the possibility to hold an unknowing seller liable for all loss by referring to the difference between lease and sales. They thought that a less strict obligation rested on the lessee than on the buyer to inspect the item before
130 C.f. Oldendorp, Progymnasmata, §7, nos. 2-4, p. 248; Mudaeus, De contractibus, to D. 19.1.13pr. no. 2, p. 182; Molinaeus, De aedilitiis actionibus, 2.17-19, pp. 201-202; Donellus, Commentarii, vol. 7, ch. 3, §12. pp. 396-397: 'Sed hae actiones, ut apparet, pretium et aestimationem rei non egrediuntur... Non item in id quod interest morbi vitiive nomine \[§13\]... Uno, si venditor vitium aut morbum sciens reticuit... altero, si vitium aut morbum venditor ignorans. Nam et quod de re dixit venditor, quo consecutus est, ut pluris venderet, id eum praestare oportet ut paulo post amplius dicetur. Quod si venditor rem morbosam aut vitiosam vendidit ignorans nec sanam esse affirmavit, placet eum superioribus quidem actionibus teneri, id est ad redhibendum, et quanto minoris emtor esset emturus; in id autem quod interest non teneri'.
131 Wesenbecius, In pandectas, to D. 19.1, no. 5, p. 223.
132 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'.
133 For medieval views on the matter see 2.2.3.
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