Page 257 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
distinct duty of care lay on some classes of sellers. Beginning with the Gloss' simple statement that the barrel case poses an exceptional one,198 he continues with merging Doneau's, Cujas' and Dumoulin's positions into a coherent theory. First, Wissenbach sets out the particulars of selling or leasing liquids in barrels.
'He who leases or sells a defective barrel is liable for all damages, although he was ignorant of the defect. This boils down to a price assessment of the wine, oil or other liquid which drained away, D. 19.2.19.1. The particular reason is given that he who claims to lease out or sell a barrel says that he is selling it as being fit, i.e. not defective, since a perforated barrel is not a barrel. After all, a barrel is an instrument capable of containing something, D. 34.2.19.9. Thus, what cannot contain that which is put into it, is not fit to contain and can by consequence not even be called a barrel'.199
This passage is imbibed with Doneau's ideas, who had contemplated that the seller of a barrel implicitly warrants the barrel's integrity, 'for with the sole name 'barrel' he affirms the barrel's impermeability and capacity to store liquids'.200 In other words, a barrel possess the essential quality of being impermeable. If a barrel lacks that quality, it can no longer be considered as such.
Wissenbach also mentions but dismisses as too controversial Cujas' historical discovery that the defect was attributed to the patres familias, because they had not properly pitched their barrels.201 He then proceeds with a lengthy discussion of Mudaeus' and Dumoulin's theory that the seller's professionalism sets an increased duty of care.
'If a defective thing is sold or leased out by him who claims to possess the knowledge of his profession, for instance, if a cooper leases out barrels or a carpenter sells wood, he is liable for all damages, no matter whether he did so knowingly or not. This is so, because in the pursuance of one's profession, ignorance is equated with fault, D. 19.2.19.1. However, if someone else sells or leases out these things, ignorance frees from fault, D. 19.1.13. Yet, no one easily approves of this distinction. After all, why should one be persuaded by an interpretation of this kind, i.e. 'that if someone is a barrel-maker? Dumoulin has laboriously made short work of such anxiety in the following manner... \[follows a quote from Molinaeus, Extricatio, no. 50, fo. 44\]'.202
198 Gloss excusata, to D. 19.2.19.1: 'hoc speciale in vase locat ut omne interesse veniat, etiam extra rem...'.
199 Wissenbach, Exercitationes, disp. 37, no. 23, p. 363: 'Eum qui vas vitiosum locavit vel vendit, licet vitii ignarus, teneri in id quod interest, adeoque in aestimationem vini, olei, vel alius liquaminis, quod effluxit, d.l. Sed addes, 19. Specialitatis rationem hanc reddunt, quod qui vas locare vel vendere se dicit, hoc dicat, idoneum se, id est, non vitiosum vendere, quoniam vas pertusum, vas non sit: esse enim vas, instrumentum ad aliquid capiendum, l. cum aurum, § argento, ff. de aur et arg. leg. Non esse autem
idoneum ad capiendum, quod immissum continere non possit, ne vas quidem igitur'.
200 Donellus, Commentarii, vol. 7, book 13, ch. 3, §14, p. 398: 'Atqui vas vendit, etiamsi nihil aliud adiiciat,
tamen solo vasis nomine affirmat vas esse integrum, & liquoris capax'. See 4.2.3.
201 Wissenbach, Exercitationes, disp. 37, no. 23, p. 363: 'Vitioque datum olim patribusfam. quod dolia non
bene picassent...Quae tamen diversitatis ratio parum tuta est'; see 4.2.3 for Cujas' interpretation.
202 Wissenbach, Exercitationes, disp. 37, no. 23, p. 364: 'Si res vitiosa ab eo sit vendita, vel locata, qui eius artis scientiam profitebatur, velut si vietor dolia vitiosa locaverit, aut faber tignarius tignum vitiosum vendiderit, eum teneri in id, quod interest, sive prudens, sive imprudens hoc fecerit: propterea, quod in professore alicuius artis, imperitia culpae annumeretur, d.l. 19, at, si quis alius eas res vendiderit, vel locaverit, ignorantiam culpae expertem esse, d.l. 13. Quam distinctionem tamen nemo facile probaverit.
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