Page 48 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
same manner as sales'. Bartolus gives no sign of thinking otherwise.57
Baldus further deepens Accursius' line of thought. The fact that the lessee does not receive the thing's property, but its use, rules out the possibility to return the thing after it is found defective, as required by the remedy for returning the thing.58 De Saliceto († 1412) also gives proof of medieval doctrine persisting in its refusal to extend
the aedilician remedies to lease.59
2.2.3 Increased liability
In Digest text 19.1.13pr. about the sale of rotten beams and cattle suffering from a contagious disease, a clear distinction is made concerning the seller's liability. If the seller knew the beams were rotten or the cattle contagiously ill, he had to account for all the buyer's loss. For example, if the buyer's house collapsed because of the bad beams, the knowing seller had to compensate for that too. On the other hand, if the seller did not know about the beams being rotten or the cattle bearing a disease harmful to other cattle, he only had to pay back part of the purchase price. The full liability of a knowing seller who did not inform the buyer of defects is grounded in the qualification of such behaviour as fraud (dolus). Fraud triggered a liability for all damages resulting from it. In the same vein, a knowing seller had to bear all the buyer's losses resulting from his fraudulent concealment. Similarly, a given warranty (dictum et promissum) could also impose a liability for all damages incurred, if the quality warranted to be present, proved absent. Again, such behaviour constituted fraud. Medieval scholars took this division for granted as the standard framework in which liability for defects had to be fitted in.60
However, the Corpus iuris civilis contains a few texts which break with the rule presented above. They suggest a liability for more than the selling price, even if the
57 Dilcher, Leistungsstörungen, p. 223. Dilcher's references to Bartolus' comments on D. 19.1.6.4 and D. 19.2.19(21).1 concern only a liability for a defective thing leased out, not an extension of the aedilician remedies to lease. Cf. Bartolus, Commentaria, to D. 19.1.6.4 and D. 19.2.19(21).1, ff. 125 and 133.
58 Baldus, Commentaria, to C. 4.58.2, no. 9, fo. 132v: 'Solutio. In contractibus onerosis ex quibus transfertur dominium datur redhibitoria et quanto minoris ut hic. Secus in contractibus lucrativis vel ubi no debet transire dominium ut in contractu locationis, ut ibi \[D. 21.1.63\]...quia redhibere est retro reddere, sed ex contractu locationis quis non consequitur rem, quia quod non habet, non potest reddere. \[10\] Conductor enim accipit usum rei, non rem, l. nauta, ff. nauta caup. \[D. 4.9.5\]. Est enim redhibitio in pristinum statum repositio, ff. eod. l. fact \[D. 21.1.60\].
59 De Saliceto, In secundam, to D. 21.1.63, p. 690: 'Solve ut gloss.'.
60 Among others: Placentinus, Accursius, Ravanis, Cinus, Bartolus and Baldus. Dilcher,
Leistungsstörungen, pp. 232, 235, 237-238; Hallebeek, 'The Ignorant Seller's Liability', p. 215; Fulgosius, In primam partem, to D. 19.1.13(14)pr., no. 1, fo. 143.
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