Page 255 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
Reasoning thus, Noodt extends the scope of the action on the lease contract. Indeed, according to ius commune, the action on lease allowed for a compensation for all loss, but only if the lessee could not use the leased item because of the lessor's culpa. Apparently, the fact that barrels were leaky constituted culpa by the lessor, even if he was not aware of them being defect.192
Stronger than any other of his contemporaries, Noodt articulates the bona fides- character of lease. The lessor of the unsound barrels has not fulfilled his duty under the contract, because he had not leased out things intact which he pretended to be such. As a result, the lessor had furnished the lessee an item which he could not use as agreed. This is a breach of bona fides and therefore faulty behaviour. Hence, it triggers a liability for all resulting loss.
Noodt also discusses the factual situation of D. 19.2.19.1. In the text a lessor leases out a plot of land which to the buyer's despair proved very well-suited to producing weeds.
'In pasture-land the law differs, because when the landlord leases out the pasture, he does not do so as if warranting it to be free from weeds. He could in good faith not have been aware of it. Then he is rightly excused by his ignorance, so that he is not liable for all damages, if cattle die or deteriorate'.193
Noodt's rabbit pulled out of the hat trick, is an implicit warranty veiled in a bona fides cloak. The mere behaviour of a lessor can raise expectations which can be breached. Contrary to the lessor of a plot of land, a lessor of a barrel can not declare straight-faced to have known nothing about the defect. Hence, if defects materialize, he has acted in breach of a warranty given and is accordingly liable. Noodt's interpretation closely resembles Doneau's implicit warranty that 'he who sells a barrel, even if he does not add something to that... , affirms the barrel's impermeability and capacity to store liquids'.194 A difference, however, is that Noodt emphasises that lease is about enabling the lessee to use the leased barrel.
5.2.3.1 Roman-Frisian legal doctrine on increased liability
That a stricter liability of professional sellers could not bring all hands together is shown by Ulrik Huber. Contrary to his Dutch colleagues, the Frisian scholar does not argue from the quality of the seller or lessor but takes the type of defect to explain why someone is
attinet, id locator non locat, quale quale sit, sed tamquam dolium, id est, tamquam vas capax liquoris, ideoque integrum, quod si vitiosum sit, no praestat effectum atque usum dolii, quia non est capax liquoris, et si tale esse scivit locator, dolus est, ob quem recte tenetur ad id quod interest: sin ignoravit, adhuc ejus culpa est, quod pro integro locavit dolium, quod non est integrum. igitur quod prae se tulit, id ut praestet, bonae fidei consequens est, l. 13, §3, D. de act. empt. Sic in dolio vitioso.'
192 Donellus, Commentarii, vol. 7, book 13, ch. 7, §12, 17, pp. 434, 438: '\[438\] In praestatione autem rerum, culpa locatoris esse existimatur, sive per eum fiat, quominus conductor frui possit, sive per alium, quem locator possit prohibere'.
193 Noodt, Opera, vol. 2, to D. 19.2, pp. 426 \[bottom right\]- 428: 'In saltu pascuo aliud iuris est, quia cum saltum locat dominus, non locat eum sic, ut affirmet, carere mala herba. Potuit quoque id ignorare bona fide et ideo merito excusata erit eius ignorantia, ne, si demortua vel deteriora facta sint pecora, ad id quod interest teneatur',
194 Donellus, Commentarii, vol. 7, book 13, ch. 3, §14, p. 398: 'Atqui vas vendit, etiamsi nihil aliud adiiciat,.... affirmat vas esse integrum, & liquoris capax'.
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