Page 316 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SEVENTEENTH AND EIGHTEENTH CENTURY NATURAL LAW
'Thus, if by my fault you incur some damage or a part of your profit is lost, I am liable to you for all the costs you made because of that' (§ 623, part. 3, Iur. nat.) \[my emphasis\]'.157
Also illustrative of Wolff's adherence to the requirement of fraud was that he constructs some sort of fault whenever that was necessary to bring legal theory and natural law principles into line, something we have already seen in the writings of Castilian scholars' deliberating about acceptable behaviour in the forum internum. Early modern scholastic scholars discussed the puzzling Digest texts about the sale or lease of defective barrels in which the unknowing seller or lessor was held liable for consequential loss.158 Disregarding the texts' literal content, Molina granted a remedy against the seller only if his ignorance was surmountable (vincibilis).159 Wolff betrays his indebtedness to what his Castilian predecessors already had figured out in his discussion of the leaky barrel-case:
'Thus, in the same vein, he \[Ulpian in D. 19.2.19.1\] accepts Cassius' view that, if someone unknowingly leases out defective barrels and it consequently seeps wine, he \[sc. the lessor\] is liable for all the costs incurred and his ignorance is not to be excused. The Roman jurists took marvellously great pains to provide for a reason why one should accept something else in defective barrels than in other defective things. However, from the proposed example the underlying reason follows easily. Unsurprisingly, the ignorance of the lessor, who should not at all have leased out a defective thing but one fit for its use, is held to be surmountable. After all, he could or should have known that the barrel was defective so that it could not contain wine, if he had only wanted to investigate it, since it is a plain fact following from common sense that empty barrels very easily contract a defect. In other instances, ignorance is held to be insurmountable, because such a common occurrence and civil laws are \[not\] made to address those instances of ignorance, because they are many, so D. 1.3.3. On the other hand, the law is not accommodated to what very rarely happens, D. 1.3.5'.160
Similar to Molina, Wolff opines that the lessor could be blamed for his ignorance. He could by himself easily have overcome his ignorance (ignorantia vincibilis) by testing his barrels before leasing them out. Only if he could not have helped his ignorance (ignorantia invincibilis), could the lessor suffice with a reduction of the rent the lessee was due. The resemblance in use of language between Wolff and Molina, who likewise uses the
157 Wolff, Ius naturae, 4.3, § 503, p. 351: 'Enimvero si culpa mea damnum quoddam incurris, aut lucrum quoddam tuum cessat, ad id, quod interest, tibi teneor (§ 623, part. 3, Iur. nat.)'.
158 D. 19.1.6.4; D. 19.2.19.1.
159 See 3.3.3.
160 Wolff, Ius naturae, vol. 4, §1302, p. 922: 'Enimvero ibidem Cassii probat sententiam, quod, si quis dolia
vitiosa ignarus locaverit, deinde vinum effluxerit, teneatur in id quod interest, nec ignorantia eius sit excusata. Mirum in modum se hic torquent interpretes Iuris Romani, ut reddant rationem, cur aliud obtinere debeat in doliis vitiosis, quam in re vitiosa alia. Enimvero ex propositione praesenta facile redditur ratio. Habetur nimirum ignorantia locatoris, qui rem vitiosam locare minime debebat, sed habilem ad eum usum, ad quem conducitur, pro vincibili, quippe qui nosse poterat ac debebat, dolium esse vitiosum, ut vinum continere non possit, modo in id inquirere voluisset, cum dolia vacua vitium facillime contrahere obvia experientia constet. In aliis autem casibus ignorantia por invincibili habetur, quod talis plerumque sit: neque \[sic\] enim leges civiles constituuntur in his, quod ut plurimum sit l. 3, ff. de LL, quod vero peraro evenit, ad id ius non aptatur, l. 5. h.t.'
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