Page 50 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
the barrel text, De Revigny's view would resurface in later times.66
On the other hand, the Digest text on lease led Bartolus to pronouncing the
tentative statement that the various degrees of liability depend on the type of thing that has been sold.67 With regard to the sale of a defective barrel, Bartolus concedes that he can hardly imagine how someone who sells barrels cannot be aware of their quality. Accordingly, in his commentary on the text quoted above, he reads a presumption of knowledge in the text. This presumption depends on the particularities of the thing sold. Some things are easily overseen, whereas others are not. Where a barrel turns out to be leaky, a seller cannot convincingly argue to have been unaware of that defect, according to Bartolus:
'Either there is a condition of the thing which he \[the seller\] could not possibly have ignored, as is the case with the condition of a barrel. Then he is also liable for loss going beyond the thing's value (interesse extrinsecum). Or he possibly could not have known it. Then the outcome is different...'68
Baldus also seems to give a more general portent to what he encountered in D. 19.2.19(21).1 about the lease of a defective barrel: 'Those for whom it is easier to know, are to be held more gravely liable, if they are ignorant'.69 Hence, in Baldus' view, the intrinsic characteristics of the goods may demand more stringent pre-contractual behaviour from the seller. In the case of barrels, a seller can very easily make himself acquainted with their condition. Consequently, he faces a graver liability for all damages that may ensue, if it is proven that he has not done so to the buyer's detriment.
66 Mudeaus (1500-1560) would further elaborate the view that an increased liability rests on professionals See 4.2.3.
67 Bartolus, Commentaria, to. D. 19.2.19(21).1, fo. 133: 'Qui locat vasa vitiosa scienter vel ignoranter ad totum interesse tenetur. In aliis rebus distinguitur sciens ab ignorante...'; cf. Bartolus, Commentaria, to D. 13.6.18.3, no. 1, fo. 85: '...aut contractus celebratur gratia utriusque ut locatio et conductio, et tunc distingue vas vitiosum a aliis rebus vitiosis, D. 19.2.19(21).1 quod dic tu ibi'; similarly, Salicetus and Paulus de Castro. See Dilcher, Leistungsstörungen, p. 239.
68 Bartolus, Commentaria, to C. 7. 47, no. 19, fo. 71: 'Aut est res cuius conditionem quis non poterat probabiliter ignorare, ut conditionem vasis et tenetur etiam ignorans ad interesse extrinsecum. Aut probabiliter poterat ignorare, et tunc secus, ut l. sed et addes, §1, ff. loca. \[D. 19.2.19(21).1\]'. When he refers to D. 19.2.19(21), Bartolus must have in mind the leased land on which weeds run riot; Dilcher, Leistungsstörungen, p. 238.
69 Baldus, Commentaria, vol. 7, to D. 19.2.19(21).1, fo. 150v: 'Qui facilius scire possunt, si ignorantur, gravius coercentur'; exactly the same has De Saliceto, In secundam, to D. 19.2.19(21).1, p. 608; cf. De Castro, Commentaria, vol. 2, to D. 19.2.19(21).1, fo. 131: 'Tu dic quod est speciale in doliis vitiosis, sive vendantur, sive locentur, ut ignorans teneatur ad interesse quia tale vitium de facili potuit sciri...'.
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