Page 254 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
verbatim.187 He connects Grotius' words to D. 19.2.19.1 about the lease of defective barrels. However, it is not altogether clear why this particular text allows for Wassenaer's general claim that every professional lessor is liable for defects in his wares on account of his profession and not only the manufacturer of barrels which the text concerns.
Some more details are given by Voet. He likewise grounds his acceptance of a stricter liability for professional lessors in the Digest texts in which the ignorant lessor of an unsound barrel accounts for all the other party's losses.188 According to Voet, it can be expected from professionals that they are acquainted with the quality of what they sell. He furthermore distinguishes between the lease of items for which expert knowledge exists and items for which such is not the case. An example of the latter Voet finds in D. 19.2.19.1 about the lease of a bad quality plot of land. Since a specialised profession involving knowledge about the quality of pasture-land does not exist, its ignorant lessor is liable for no more than the agreed rent. Hence, Voet harks back to the rule of D. 19.1.13pr. according to which liability depends on the seller's good faith. Voet apparently applies this text to lessors as well.189
Someone who elaborates in a more outspoken manner on the matter is Noodt. He mixes something of Doneau and something of himself into a stricter liability for the lessor of barrels. Repeating Doneau, Noodt contends that a barrel ceases to be a barrel, when it is no longer capable of carrying liquids.190 Hence, if the lessor does not provide the barrel intact, he has not ensured the lessee the use of the thing leased out and the lessee can then bring an action on the lease contract which of itself involves consequential loss.
'Perhaps not without reason, since with regard to barrels, the lessor does not lease them out such as they are, but as barrels, viz, as jugs capable of containing liquid, and he leases them out intact. If they are defective, he has not ensured the effect and use of the barrels, since they are not capable of containing liquid. If the lessor was aware of that, there is fraud, for which reason he is rightly accountable for all damages. If he was unaware, it is still his fault that he leased out a barrel intact, while it was not. Hence, as a consequence of bona fides, he has to answer for that which he pretends to fulfil, D. 19.1.13.3. Such it is in the event of a defective barrel'.191
187 Wassenaer, Praxis Judiciaria, ch. 14, no. 8, p. 145: 'Gelijk mede den huerder vanden verhuerder vergoedinge magh eysschen vande schade die hem overkomen is door gebrek van 't verhuerde goet, so het gebrek den verhuerder is bekent geweest, ofte van wegen zijn ambacht behoorde bekent te zijn en anders niet, Grot. ibid. nu. 52, per d.l. 19, §I \[my emphasis\]'.
188 Stein, Fault, p. 102.
189 Voet, Commentarius ad pandectas, to D. 19.2, no. 14, p. 530: 'Praestetur denique reparatio damni totius
quod conductor ex rei conductae vitio passsus est, sive sciverit locator vitium illud sive ignoraverit, quoties circa rem locatam artificium versatur et locator artifex est; quippe qui tunc utique scire debuerat, quae suae artis erant; quo pertinet id, quod de doliis vitiosis elocatis, unde vinum effluxit, Iurisconsultus ait, ignorantiam locatoris haud excusatam esse. Nam si id elocatum sit, circa quod nulla versari solet artis professio, dum saltus pascuus locatus fuit, in quo mala herba nascebatur, unde animalia conductoris demortua aut deteriora facta sunt, non aliter ad id quod interest conveniri locator potest, quam si vitium subesse sciverit; ignoranti succuritur hactenus, ut mercedis remissione liberetur, l. sed addes 19, § si quis dolia, I. ff. h.t \[D. 19.2.19.1\] arg. l. Julianus, 13pr. ff. de act. emti \[D. 19.1.13pr.\]'.
190 Donellus, Commentarii, vol. 7, book 13, ch. 3, §14, p. 398. See 4.2.2.
191 Noodt, Opera, vol. 2, to D. 19.2, p. 426 \[center right\]: '... forte non sine ratione, nam quod ad dolium
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