Page 253 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
5.2.3 Increased liability
No fault, no liability for more than the price paid. Such appeared to be the medieval ius commune-position on the law governing the sales contract.180 The view was subscribed to in early modern Castilian legal theory.181 In the previous chapter, we examined how 16th - century humanists dealt with D. 19.1.6.4 about an unsound barrel, where the text seemed difficult to square with a regime in which fault was necessary to be able to sue for full damages, including consequential loss. The text has a seller of a barrel compensating for all the buyer's incurred loss, should the barrel turn out to be as leaky as a sieve. This despite the seller's good faith. The solutions offered to explain the text's exceptional content ranged from accepting a stricter liability for professional sellers via culpability due to negligence to acknowledging an implicit warranty of quality for certain wares.182 Dutch scholars also agonized over this difficult text. This section explores whether Roman-Dutch and Roman-Frisian scholars followed one or the other explanation of the unruly text, or added yet more interpretations to those already existing.
As observed in the previous chapter, Mudaeus was one of the first to introduce a stricter liability for sellers or lessors of things sold by virtue of their profession (ex professione alicuius artis). Dumoulin and others did the same.183 Many Dutch scholars in turn also appear to be drawn to this solution and adhere to the theory that that the Digest imposes stricter liability in relation to the seller's quality. This rule applies equally to seller and lessor.
Grotius, for instance, takes as point of departure that the amount of damages due depends on the seller's or lessor's knowledge.184 That knowledge could lie embedded in professional expertise.
'For damage incurred by the lessee because of a defect in the leased thing, the lessee can demand compensation, if the lessor had known of it or if he should have been aware of it, because of his profession. Otherwise it is not possible \[my emphasis\]'.185
Grotius does not reveal the origins of this rule. It may be that he had drawn inspiration from Dumoulin's treatise Extricatio labyrinthi de eo quod interest, in which the French scholar coins a liability for professional lessors.186
Be that as it may, Grotius' view percolated into legal practice. Wassenaer (ca. 1589- 1664), who was a lawyer for the Provincial Court of Utrecht, repeats Grotius' almost
180 See 2.2.3.
181 See 3.3.3.
182 See 4.2.3.
183 See 2.2.3.
184 Grotius, Inleidinge, 3.15.7, p. 246: 'Boven 't gunt voorsz is, blijckende dat den verkooper ten tijde van de
verkoopinge van het gebreck kennisse heeft gehad, is hy gehouden in alle de schade die den kooper
daer uit zoude moghen lijden...'.
185 Grotius, Inleidinge, 3.19.12, p. 255: 'Voor de schade die door ghebreck van het verhuirde den huirder
overkomt, mag den huirder vergoedinghe eisschen indien 't ghebreck de verhuirder is bekent gheweest
ofte van weghen sijn ambacht behoorde bekent te zijn: anders niet \[my emphasis\]'.
186 Molinaeus, Extricatio, p. 41, no. 49, p. 41; Grotius, Inleidinge, p. xxiv.
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