Page 256 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
sometimes liable for all damages, even if he was unaware of any defect in the object sold or leased.195
'He who knowingly sells a defective thing is liable for all damages. He who does so unknowingly is liable for how much less the thing is worth, D. 19.1.13pr. However, in D. 19.2.19.1, one indistinctly sues for all damages. Perhaps so: the damage should immediately be brought about by the defect, such as when wine is sold in a leaky jar. This is different in a defect that causes damage through the buyer's interference, as with ill cattle and rotten wood, D. 19.1.13pr. It is also of importance that when wine is sold, the jars in which the wine is commonly stored are part of the agreement as well, D. 33.6.6 jo. D. 33.6.15. Yet, bigger jars are not due, D. 18.6.1.3.196
Huber thus gives two possible explanations. First, he hypothesises that the buyer had not yet been able to do something with the bought wine, whereas in the case of ill cattle and rotten wood he had either herded the animals or built a house from the bought wood (D. 19.1.13pr). Huber seems to suggest that in D. 19.1.13pr. the buyer also had a part in letting the damages occur. Secondly and alternatively, so it seems, Huber explains the liability for the leaking barrels by means of their being accessories to sold wine. A wine seller had to deliver his wine in small sized barrels197 and was responsible for their quality. If due to their bad quality the wine spilt out of the barrels, the seller had to pay for all resulting loss.
Huber does not invoke the sellers' professionalism. His first argument focuses on the buyer's position. Arguably, a buyer of leaking barrels can do nothing to reduce his damages, whereas in the event of contaminated cattle or rotten wood, he can.
Huber's second argument about accessories is complicated. He interprets the sale of a barrel in D. 19.1.6.4 as a sale which includes the wine. If wine is the object sold, a liability to pay for the wine in the event the barrels turn out to be leaky is nothing else than a liability for returning the paid price, because the object sold is defective. Interpreting the text in this manner brings again the general rule of D. 19.1.13pr within reach. Yet, to reach this interpretation Huber has to give a firm twist to D. 19.1.6.4 and D. 19.2.19.1 in which it is clearly stated that the barrels are sold, not their content. Perhaps this interpretation is illustrative of the tendency also current in Roman-Frisian law to reason from principles rather than to explain the texts casuistically. This would again conflict with the perceived 'pure' application of Roman law by early modern Frisian scholars.
Wissenbach another time uses an historical argument to prop up the view that a
195 D. 19.1.13pr.
196 Huber, Positiones, to D. 19.2, nos. 7-9, p. 214: 'Qui rem sciens vitiosam vendidit, tenetur in omne quod
interest; si ignorans, tantum in id, quanto res minoris fuerit, l. 13, in pr. d. act. empt. At in l.19.§.i.loc, indistincte in id quod interest convenitur: forte ita, si damnum immediate ex eo vitio inferri debuit, ut si vinum in vase perruso sit venditum. Secus, in vitio, quod damnum, interveniente facto emptoris, adferat; ut in pecore morboso, in tigno vitioso. vid.ll. Etiam hoc, quod vino vendito, vasa quoque debentur, in quae vinum solet diffundi. l.6 cum. l.15, d. trit. vin. ol. leg. Dolia vero majora non debentur, l. I, §3, d. peric. et comm. rei vend.'.
197 That the seller was only obliged to provide small, not large, barrels Huber seems to infer from D. 18.6.1: ... sed ita demum, si interfuit eius inania esse vasa in quibus vinum fuit.
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