Page 454 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
Among Roman-Dutch and Roman-Frisian scholars all views found in medieval ius commune and legal humanism concerning the scope of the seller's liability are defended. Even Doneau's somewhat far-fetched argument to explain D. 19.1.6.4 that a leaky barrel is not a barrel, so that the seller of a leaky barrel acted in breach of an implicit warranty that the thing sold was really a barrel capable of containing liquids, turned up in Roman-Dutch and Roman-Frisian writings. On the whole, early modern Dutch legal doctrine proved highly eclectic. There were no signs of a lasting impression of Castilian views on the solutions proposed by early modern Dutch scholars. A more coherent picture was found among the 17th and 18th century scholars of natural law. Similar to their Castilian predecessors, they betrayed unease in holding an ignorant seller or lessor of a defective thing liable for more than the thing's value. A number of scholars approached D. 19.2.19.1 and D. 19.1.6.4, which contained such a liability for an ignorant seller or lessor of a defective barrel, with a presumption of fraud. Pothier explained the texts in terms of a professional seller. All natural law scholars studied adhered to some kind of fault or refrained from discussing the barrel texts at all. With the help of usus modernus-scholars, it seemed that the Verschuldensprinzip became generally accepted from the 17th century onwards.
Yet, similar to what was observed with regard to the extension of remedies for defects in sold things to lease, the liability of professionals was not uniformly applied in the civil codes of the 18th and 19th centuries. A clear division appeared between the natural law inspired ALR and ABGB, and the codes partly rooted in customary law, the Code civil and the BW 1838. The first two continued the course set by early modern scholasticism and natural law. Not only professional sellers, but all professional 'givers' or 'promisors' raised expectations which evoked an increased liability. In the Code civil, BW 1838 and BGB, however, similar provisions were absent. In France, the Cour de Cassation repaired this omission in its case law in which it equated professional sellers with sellers who were aware of defects in the things they sold. To my knowledge, no such thing had happened in the Netherlands and Germany until the introduction of consumer rights in the 20th century. The drafters of the Spanish Código again did what those of the Code civil had neglected to do; they implicitly incorporated Pothier's doctrine of professio artis obligat, which equated a professional seller with a knowing seller, so that he faces a corresponding liability in the event a sale turned awry.
(4) A fourth topic which has continuously been treated in early modern legal doctrine and practice was the seller's or lessor's liability for encumbrances on immovables. The Corpus iuris civilis contains distinct rules on the seller's liability for encumbrances on land, according to which sellers ignorant of burdens on immovables could not be held liable at all. Yet, from a factual point of view, deliveries of movable and immovable things are closely related. Legal scholars and practitioners consequently explored whether these situations should not be made subject to the same set of rules of liability.
The medieval glossator Accursius by means of an extensive interpretation of the 454