Page 192 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
approach to answer why someone who could not have known about defects in his wares is nevertheless liable for all the buyer's loss. The treatment of the issue by this scholar is an example of historical research which made its way into the legal sciences at the beginning of the 16th century. In his Quaestiones iuris memorabiles he writes the following:
'Personally, I think the lessor is liable for the full interest because of great idleness and supine negligence, even if the loss exceeds the thing's value. For assuredly, since earlier times, every diligent pater familias inspected his barrels on a daily basis and, as M. Cato writes in his De re rustica, often washed and tarred them, because they would otherwise be noted by the Censors, as was the case with fields, vineyards and trees less laboriously taken care of, or with horses with skinny legs, or with horses which were insufficiently brushed, as Gellius in book 4 says.143 Undoubtedly, he who is unaware of cracks and defects in barrels cannot be without deceit or negligence verging on deceit. Thus are those who were so idle and so inactive because of their enormous sluggishness as not to inspect their barrels, not to wash, not to besmear them with paint, as was the custom, who, in short, did not keep them intact, rightly liable for wine leaking from sold or lent barrels and their lazy ignorance does not excuse them'.144
Costanus draws extensively from what Roman general history has to offer. The seller's liability for leaking barrels had its origins in old republican Rome, in which implacable characters such as Cato the Elder rigorously held sway over Rome's censorate, a collegium appointed to guard the Roman elite's morals.145 This may sound, at least from a scholarly perspective, as a convincing argument. The question remains, however, whether this kind of reasoning had any influence on scholars more prone to making the Digest suitable for solving practical problems. After all, one could reason that now since censors are history, Digest texts which can only be explained by referring to their authority should no longer be regarded as relevant.
Nevertheless, Costanus' argument, which might strike the reader as somewhat too far removed from early modern legal reality, inspired no one less than the standard bearer of humanist legal scholarship, Cujas. In one of his lectures over the Digest, later published in his Recitationes solemnes, he presents the same solution for the leaking barrel text. One thing Cujas does not fail to mention is that the censors' stringency was not solely aimed at barrels, but also applied to other earthen and fragile vessels. Thus extending this peculiar liability, Cujas goes one step further than Costanus. Cujas' thoughts approximate
143 Gellius, Noctes Atticae, 4.12.2.
144 Costanus, Quaestionum, ch. 13, no. 12-13, p. 77: 'Et ego quidem putarim ob magnam desidiam &
supinam negligentiam, in id omne quod interest, etiam si extra rem sit, eo casu teneri locatorem. Cum enim diligens quisque paterfamilias olim dolia sua quotidie perlustraret, & saepe, ut M. Cato de re rustic. scribit, lavaret atque picaret, aut aliter, à Censoribus notabatur: sicut agros, vineas & arbores parum diligenter curans, aut equum habens gracilentum, aut parum nitidum, ut Gellius lib.4. ait. Certe non potuit dolo carere, aut culpa dolo proxima, qui fissuras & vitia doliorum ignorabat. Igitur qui eo usque desides erant, & gravi veterno torpebant, ut nec dolia sua inviserent, nec lavarent, nec pice, ut mos quondam erat, circumlinirent, nec integra denique haberent: merito doliis venditis aut locatis vini effusi nomine tenebantur, nec eos supina ignorantia excusebat'.
145 Baltrusch, Regimen, passim.
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