!!Экзамен зачет 2023 год / The Law of Obligations

existed. It was in order to accommodate the business practice of his time (which continued to use specific guarantee stipulations in the case of sale)49 that Justinian refrained from further streamlining the protection of the purchaser against eviction.

6. The determination of quod interest

This was bound to happen, however, once the tradition of taking stipulationes (duplae) fell into disuse. Let us see, for instance, what Van Leeuwen says in this regard:

"Quae stipulationes propterea paulatim ab usu et moribus recesserunt, quibus emptori cui res evicta est, pretii, sumptuumque, damnorum, et interesse restitutio sufficere intellegitur."50

And Willem Schorer spells out the consequences: "Evictione locum habente non amplius duplum peti potest, sed tantum id quod interest; cessante moribus duplae stipulatione."51 If stipulationes duplae had disappeared from the scene, because the claim for quod interest was regarded as satisfactory and sufficient under the circumstances, the raison d'etre for the strange alternativity of how the purchaser could make use of the actio empti had fallen away. In Roman times it had been incompatible with good faith if the vendor refused to do what vendors normally did: to give a stipulatio duplae. Hence the purchaser was granted the actio empti to claim dupla pecunia. Now that the actio empti was available anyway, it would hardly have been in accordance with the precepts of good faith to read into the contract of sale what the parties would not normally have stipulated expressly and what the vendor would have been under no obligation to accept. The writers of the ius commune therefore generally restricted the scope of the actio

itaque in omnibus casibus, qui certain habent quantitatem vel naturam, veluti in venditionibus . . ., hoc quod interest dupli quantitatem minime excedere." It is unclear whether this arbitrary limitation of "dupli quantitas" refers to the ordinary value of the object sold or to the purchase price; cf. Medicus, Id quod interest, pp. 288 sqq.; Schindler, Justinians Haltung гиг Klassik, pp. 259 sqq. Generally speaking, it does not seem to have been carried into effect in other parts of the compilation. In the context of eviction, however, we do find a hint in Afr. D. 19, 1, 44 (". . . et non ultra duplum periculum subire eum oportet"). Again, it is difficult to decide what the doubling referred to; also, there is a dispute as to whether this text was interpolated by Justinian (in order to bring the law into line with C. 7, 47, 1) or whether D. 19, 1, 44 expresses the opinion of at least one classical lawyer and perhaps even induced Justinian to formulate his generalized rule; cf. e.g. Honsell, Quod interest, pp. 54 sq.; Knutel, Stipulatio poenae, pp. 341 sqq. In any event, C. 7, 47 was usually applied to the "quod interest" claim during the time of the ius commune; cf. e.g. Cuiacius, Ad Africanum Tractatus VIII, Ad L. 44 de actio empt.; Windscheid/Kipp, § 391, 5.

49Levy, Obligationenrecht, pp. 216 sqq.; Kaser, RPr II, pp. 390 sq.

50Centura Forensis, Pars I, Lib. IV, Cap. XIX, 11; cf. further e.g. Groenewegen, Delegibus tis, Digest. Lib. XXI, Tit. I, 1. 31 quod si nolit. Lib. XXI, Tit.II in initio; Voet,

Commentarius ad Pandectas, Lib. XXI, Tit.II, XXVIII.

51 Aantekeningen, III, XIV, 6 (in Hugo Grotius, Inleiding, Middelburg, 1767).

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empti so as to exclude the claim for dupla pecunia.52 The vendor was liable "ex natura ipsius contractus",53 but only de eo quod interest, i.e. to the extent of the purchaser's interest in not being evicted. Opinions differed, however, on how this interest was to be determined. The most immediate consequence of the act of eviction was, of course, that the purchaser had lost the object sold to him. But did that mean that he could claim the value of this thing as at the time of eviction?54 Or is the purchase price to be taken as a basis for evaluating the purchaser's loss? Does quod interest under these circumstances not rather have two objects: restitution of the price paid on the one hand; payment of all the purchaser has suffered over and above it on the other?55 This dispute reflects the ambiguity of the Roman sources on the point. It survives in the continued controversy between modern Romanists56 and still clouds the position in South African law.57

7. Roman-Dutch and modern German law

Of all modern systems, not surprisingly, South African law follows Roman law most closely.58 It is squarely based on the Roman-Dutch branch of the ius commune59 and the courts have, on that basis, usually

52 As far as, specifically, Roman-Dutch law is concerned, see the detailed analysis by D.F. Mostert, "Uitwinning by die Koopkontrak in die Romeins-Hollandse Reg", 1967 Ada Juridka 49 sqq., 77 sqq. For the ius commune in general, see Coing, p. 452; Arndts, Pandekten, § 303, n. 8; Baron, Pandekten, § 288, II.

Van Leeuwen, loc. cit.; Vinnius, Selectae Juris Quaestiones (Roterdami, 1685), Lib. II, Cap. VIII (". . . quae praestatio pars est obligationis empti et venditi") and many others. 4 Cf. e.g. Donellus, Cotnmentarii de Jure Cifili, Cap. VII, 2, 3 (". . . Quibus verbis (sc. id quod interest) non pretium, ut dixi, continetur, sed quanti res valuit"); Domat, Les loix civiles, Tit. I, Sec. X, XII sqq.; Gluck, vol. 20, p. 349; Baron, Pandekten, § 288, II; Windscheid/Kipp, § 391, 5.

55 Molinaeus, Tractatus de eo quod interest, nn. 68 sqq.; Perezius, Praelectiones, Lib. VIII, Tit

XLV, 11 (". . . re tamen evicta emptor consequitur rei pretium, et praeterea quanti interest rem evictam non esse"); Van Leeuwen, loc. cit. ("In qua causa, si succumbat, et rem ad alium pertinere compertum sit pretium restkuere tenetur venditor cum usuris, et quod praeterea emptoris interest, rem evictam non fuisse"); Grotius, Itileiding, III, XIV, 6; Voet,

Commentarius ad Pandectas, Lib. XXI, Tit. II, XXV; Pothier, Traite du central de vente, nn. 70,

119 sqq. and many others. In modern French law, the vendor is obliged to restore the price (apart from paying damages; art. 1630 code civil); such restitution is, however, not based upon an implied warranty, but upon the genera) principles of unjustified enrichment: the sale of a thing belonging to another person is void (art. 1599 code civil).

56 A c co r din g t o R a be l ( o p. cit . , n ote 9, pp . 14 5 s qq. ) a nd M e di cu s { I d qu od in te re st, pp. 49 sqq., 94 sqq.) the Roman lawyers took the price paid as the starting point for the id quod interest. Contra: Honsell, Quod interest, pp. 32 sqq.

57 Cf. Hendler Bros. Garage (Pty.) Ltd. v. Lantbons Ltd. 1967 (4) SA 115 (O) ('"n uitgewonne koper is slegs op skadevergoeding geregtig: die bedrag daarvan is die waarde van die verkoopte saak ten tye van die uitwinning") (according to De Wet en Yeats, p. 293, '"n bloemlesing van nalwiteite"); Alpha Trust (Edms.) Bpk. v. Van der Watt 1975 (3) SA 734

(A) at 748G (". . . as gevolg van die uitwinning (is respondent} geregtig om terugbetaling van die koopprys en vergoeding van sy skade met die actio empti van die verkoper te vorder") and see D.F. Mostert, "Uitwinning by die Koopkontrak in die Suid-Afrikaanse Reg", 1968 Actajuridica 36 sqq.

For a comprehensive analysis in historical perspective, see Mostert, 1968 Actajuridica 5 sqq. 5 For a detailed analysis, see Mostert, 1967 Acta Juridica 49 sqq.

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done no more than to work out the details of the respective duties incumbent on the parties. Denuntiatio litis,60 contrary to the practice in the olden days,61 no longer has to be accompanied by a copy of the summons;62 to give the vendor informal notice of the proceedings instituted by the third party is sufficient. On the other hand, such a notice to the auctor does not entitle the person threatened with eviction to rest on his laurels and throw all responsibility upon the vendor;63 he has to put up a virilis defensio,64 i.e. to conduct his case as a reasonable litigant.65 South African law follows Roman and Roman-Dutch law even to the point that the vendor merely has to afford vacua possessio and is thus not under an obligation to make the purchaser owner of the object sold.66 This idiosyncrasy of Roman law, faithfully preserved also in the European ius commune down to the time of the pandectists,67 has been abandoned in the modern codes. They usually require the vendor, under the contract of sale, to transfer ownership.68 That has

60For a general discussion, see Voet, Camtnentarius ad Pandectas, Lib. XXI, Tit. II, XX; Gluck, vol. 20, pp. 388 sqq.

61Voet, Commentarius ad Pandectas, Lib. XXI, Tit. II, XX; Coing, p. 452.

62Cf. Paarl Pretoria Gold Mining Co. v. Donovan & Wolff 3 SAR 93 at 98, per Kotze CJ {". . . it is clear that this was . . . only a local provision of the jus adjectivum or practice in the Netherlands . . . and forms no portion of the real substantive law, which is that by which alone we are bound, for we have our own rules and procedure in this country").

63hammers & Lammers v. Giovannoni 1955 (3) SA 385 (A) at 397B (per Van den Heever

Voet, Commentarius ad Pandectas, Lib. XXI, Tit. II, XX; Mostert, 1967 Actajuridica 102

sqcb

65York & Co. (Put.) Ltd. v.Jones (i) 1962 (1) SA 65 (SR) at 82 sqq.

66Cf. e.g. Alpha Trust (Edms.) Bpk. v. Van der Watt 1975 (3) SA 734 (A) at 743G. This applies at least in cases where the seller himself was not the owner. Otherwise, he seems to be obliged to transfer ownership; cf. Grotius, Inleiding, III, XV, 4: "Aen des verkoopers zijde bestaet de nakominge daer in, dat den verkooper, indien hy eigenaar is van het verkochte goed, schuldig is den kooper daer in te eigenen: 't welch gheschied door levering ende inleiding in het bezit . . ."; see also Kerr, Sale and Lease, pp. 110 sqq. This distinction seems to go back to the old Dutch (Germanic) concept of "waerhand": cf. Grotius, Inleiding, III, XIV, 6 and Mostert, 1967 Ada Juridica 85 sqq. It fits in with Roman law on the basis that, where an object has been sold by its owner, traditio is usually tantamount to transfer of ownership.

67Cf. e.g. Pothier, Traite du contrat de vente, nn. 41, 48; Gluck vol. 20, p. 210; Windscheid/Kipp, § 389, 1; Coing, p. 451. A similar situation obtained in the English common law until well into the 19th century. As late as 1849 Baron Parke stated: ". . . the result of the older authorities is that there is by the law of England no warranty of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor applies to both" (Morley v. Attenborough (1849) 3 Exch 500 at 510; but see, only 15 years later, Eichholz v. Bannister (1864) 17 CB (NS) 708 at 723: ". . . in almost all the transactions of sale in common life, the seller by the very act of selling holds out to the buyer that he is the owner of the article he offers for sale" (per Erie CJ); cf. further Buckland/McNair, pp. 283 sq.; Powell, Studies de Zulueta, pp. 88 sqq.; Mostert. Uitwinning by die Koopkontrak in die Suid-Afrikaanse reg (unpublished LL.D. thesis, Pretoria, 1965), pp. 659 sqq.

68§ 433 BGB has been quoted above (supra p. 278). § 434 adds: "The seller is bound to transfer to the purchaser the object sold free from rights enforceable by third parties against the purchaser." Ownership, in other words, must be transferred free from any real or personal rights which might affect the purchaser's habere licere (see § 434 read together with

§440 II BGB). This includes servitudes. The legislator thus rejected the approach of Roman law, according to which incumbrances on land by way of servitudes are so common, that the

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not hindered them, however, from making the vendor's liability still dependent upon eviction:

"If a movable69 has been sold and delivered to the purchaser for the purpose of transferring ownership, the purchaser may not demand compensation for nonperformance on account of the right of a third party involving the possession of the thing, unless he has delivered the thing to the third party in consideration of his right",70

as the German BGB puts it.71 The underlying policy is that the purchaser must not be allowed to claim damages and still have the thing sold at his disposal; hence this deviation from the normal rules of breach of contract. It is no longer necessary for the purchaser to defend an action brought by the third party; he can claim compensation for nonperformance, even where he has voluntarily surrendered the object to him who claimed to have a better title, provided only that such surrender is not in conflict with the requirements of good faith.72

purchaser cannot assume the vendor's land to be free from them unless he has been given a specific promise to that effect. This type of reasoning, however, still prevails today with regard to public burdens on land (§ 436 BGB: "The seller of a piece of land does not warrant the land to be free from public taxes and other public burdens which are not appropriate for entry in the Land Register"). In Roman-Dutch and modern South African law the question is whether the old Dutch (Germanic) rule, according to which the vendor is under a duty not only of waeren but also of vtijen, has survived the reception of Roman law; see Van der Keessel, Praelectiones, ad Gr. Ill, XV, 4, and the discussion by Mostert, 1967 Ada Juridica 87 sqq. Further, on the problem of how far the guarantee of the vendor extends to freedom from servitudes, see Donellus, Commentarii de Jure Civilt, Cap. VI, 8 sqq.; Pothier, Traite du contrat de vente, nn. 200 sqq.; Vangerow, Pandekten, § 610, n. 2 (pp. 315 sqq.).

69 In case of land (ownership of which is transferred not by agreement and delivery, but by agreement and registration in the Land Register) the general rule of § 440 I BGB applies ("If the seller does not fulfil the obligations imposed upon him by §§ 433 to 437. 439, the rights of the purchaser are determined according to the provisions of §§ 320 to 327").

" Or has returned it to the seller, or unless the thing has been destroyed (sc: if such destruction has its origin in the defect in title).

71§ 440 II. In evaluating this rule, it has to be taken into consideration that liability on account of evi ction under the BGB does not have the same i mport ance as in the ius commune, since the "nemo plus iuris" rule no longer applies: according to §§ 932 sqq. BGB the purchaser can acquire ownership in good faith from a non-owner. On the other hand, however, the periods for acquisitive prescription of ownership were much shorter in the ius commune than they are under the BGB. For si milar considerations relating to the comparison between Roman and English law, see Powell, Studies de Zulueta, pp. 78 sqq. Cf. further already §§ 317 I 5, 135, 136, 143 1 11 PrALR (read together with § 1 I 11); §§ 922, 1053 ABGB; am. 1625 sqq. code civil. For a comparative analysis (Roman Law, French law and Louisiana Civil Code), see Alexander E. Ralston, "Warranty of Title or Warranty of Peaceable Possession in Louisiana?", (1940-41) 15 Tulane LR 115 sqq.; John H. Baldwin, "Warranty Against Eviction in the Civil Law: Extent of the Vendee's Recovery", (1948-49) 23 Tulane LR 140 sqq.; Charles J. Boudreaux, "Warranty Against Eviction in the Civil Law: Limitations on the Extent of the Vendee's Recovery", (i948-49) 23 Tulane LR 154 sqq.; cf. also Coing, Gesammelte Aufsatze, vol. I, op. cit., note 17, pp. 65 sq.

72Cf. in this context § 442 BGB, according to which the purchaser has to prove the defect in title.

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II.LIABILITY FOR LATENT DEFECTS

1.Introduction

(a)The remedies: Roman tradition and natural law

If the object that has been sold and handed over to the purchaser subsequently turns out to suffer from a defect which diminishes its value for its ordinary use or for the use provided for in the contract, the purchaser, according to modern German law, has a choice between two remedies: he may demand annulment of the sale (with the result that the parties are obliged to return their mutual performances) or he can ask for a reduction of the purchase price.73 If a promised quality in the thing sold was absent at the time of the purchase, or if the seller has fraudulently concealed a defect, a third alternative is available to the purchaser; instead of cancellation or reduction, he may demand compensation for non-performance, i.e. his positive interest.74 Except where the seller has fraudulently concealed the defect, all these claims prescribe within a very short time: within six months after delivery in the case of movables, within one year after transfer for land.75

These rules display quite a remarkable degree of traditionalism on the part of the fathers of the BGB; they have preserved all the essential elements of the Roman law relating to latent defects, as embodied in the Corpus Juris Civilis. Yet, the rules do not, I think, strike the unbiased reader as particularly simple or obvious solutions to the problem. They did, for instance, not commend themselves to those writers who wanted to get away from the idiosyncrasies of the ius positivum and who tried to create a system of law based on reason: the natural lawyers of the 17th and 18th centuries.76 They proceeded from the basis of the objective equality of performances within a contract: "In contractibus natura aequalitatem imperat, et ita quidem ut ex inaequalitate jus oriatur minus habenti".77 Whether this principle was based directly upon the precepts of social ethics or upon the presumptive wishes of the parties (". . . in emtione venditione is esse videtur animus contrahentibus, ut observetur aequalitas, nisi fortes rationes adsint in contrarium"),78 latent defects in the object sold were for them one instance of inaequalitas which the law had to remedy. They did not present special problems and therefore did not need to be dealt with by way of a ius singulare. "Vitium rei", defines Christian Wolff,79

"dicitur accidens, quod eidem inhaeret et rem usui suo minus aptam redidit. Cum res ementur propter eum, quam habere debent usum, consequenter nemo res vitiosas

73§§ 459, 462 BGB.

74§ 463 BGB.

75§ 477 BGB.

73 Christian Wolff, Jus naturae, Pars IV, Cap. IV, § 977. 79

Institutiones juris naturae et gentium, § 618.

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cmere vclle praesumatur; vitia rei, quae in oculos non incurrunt, vel aliunde nota sunt, emtori indicare tenetur venditor . . . Et quia vitium rei aestimabile quid est, quatenus scilicet rem per sc ad aliquem usum aptam ineptam reddit; vitia pretium rei imminuunt, immo si quod vitium rem prorsus inutilcm reddit, cam nullius pretii faciunt. . . . si res prorsus inutilis fuerit ob vitium latens, pretium emtori restituendum, si vero adhuc usum habere potest, aut alio modo damnum reparari, damnum saltern datum resarciendum. Haud difficulter patct, jura, quac tertius in re emta habet, vitiis annumeranda esse."

Defect in title and in quality are placed side by side.80

(b) The implied conditions of the Sate of Goods Act

The Romanistic system of remedies for latent defects did not commend itself to the English courts and legislators either. As in the case of the seller's duty to pass a good title, the courts had started to provide some measure of implied protection.81 Today, however, the Sale of Goods Act imposes a series of graduated duties upon the seller. Where goods are sold by description, there is an implied condition that the goods correspond with their description.82 Under certain circumstances there is the further implied condition that the goods are merchantable;83 and, finally, in still more limited circumstances, the condition that the goods are fit for a particular purpose is implied in the contract of sale.84 In case of a breach of one of these conditions, the purchaser may repudiate the contract of sale, reject the goods and claim damages, or he may claim damages only.*5 This intricate system of conditions, which frequently overlap in practice,86 is certainly no less complicated than the corresponding rules of Roman law, but it is distinctly different. One thing, however, Roman law and the English common law originally had in common: both accepted a fairly harsh idea of caveat emptor,87

80Cf. also Pothier, Pandedae Justinianae, vol. VIII, Lib. XIX, Tit. 1, Art. V, XLVIII, XLIX: "Quum venditor praestare teneatur rem emptori habere licere, sequitur eum ex empto teneri praestare eas qualitates in re vendita abesse, per quas non liceat earn habere, aut per quas earn inutiliter haberet emptor . . . De caeteris autem vitiis quae non impediunt quominus rem habere liceat, venditor qui ea ignoravit et de his tacuit, nullatenus tenetur."

81Atiyah, Rise and Fall, pp. 464 sqq. For the historical development cf. Rheinstein, Struktur, pp. 42 sqq.; Samuel). Stoljar, "Conditions, Warranties and Descriptions of Quality

in Sale of Goods I", (1952) 15 Modern LR 432 sqq.

82S. 13 I, II.

83S. 14 II, 15 II.

84S. 14 III.

85Cf. ss. 11 III, 53.

86For details, see Patrick S. Atiyah, The Sale of Goods (7th ed., 1985).

87"[A] Latin proverb of late Anglican vintage": Walton H. Hamilton, "The Ancient Maxim Caveat Emptor", (1931) 40 Yale LJ 1186. Hamilton shows (pp. 1163 sqq.) how it

won judicial acceptance with the rise of individualism and freedom of contract. "Not until the nineteenth century, did judges discover that caveat emptor sharpened wits, taught self-reliance, made a man—an economic man—out of the buyer, and served well its two masters, business andjustice." Along the same lines Atiyah, Rise and Fall, pp. 178 sqq., 464 ("The doctrine of caveat emptor can be said to represent the apotheosis of nineteenthcentury individualism"). The leading case had always been Chandelor v. Lopus (1603) Cro Jac 4, where a jeweller had sold a stone affirming it to be a Bezoar stone (i.e. a stone that is

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before the attitude of the law gradually changed in favour of the purchaser. But, whereas this change came about at a relatively early stage in Rome, we still find English courts espousing the old idea in the beginning of the 19th century. If the object bought turned out to be defective, the purchaser could not normally avail himself of any remedy, because "it was [his] fault . . . that he did not insist on a [sc: express] warranty".88

(c) Caveat emptor

Caveat emptor is the principle governing the sale of goods in all early legal systems. The old German law has several proverbial sayings to that effect: "Augen auf, Kaufist Kauf", "Wer die Augen nicht auftut, der tue den Beutel auf", "Wer narrisch kauft, muss weislich bezahlen", etc.89 What all these maxims reflect is "Kauf vor Augen", a situation in which the contract of sale is concluded and executed at one and the same time, in the presence of both parties. The purchaser has the object of the sale "before his eyes" and it can therefore be expected of him to examine it properly before he concludes the bargain.90 After all: "ius vigilantibus scriptum"; as long as he can see what he buys and is able to satisfy himself of its quality, the Roman paterfamilias can be relied upon to look after his own interests and not, for instance, to pay the normal purchase price for a slave who is without one arm or leg.

It is a harsh but healthy attitude of the law to prevent the purchaser from trying to go back on the terms of the contract under these circumstances. For if an object turns out to be defective, it is in any event always very difficult to prove that such a defect existed already at the time when the contract was concluded or when the object was

found in the stomach or intestines of certain animals). It turned out that the stone was in fact not a Bezoar stone. Nevertheless, the purchaser lost his case because the vendor had only affirmed, not warranted it to be a Bezoar stone. In the Middle Ages, a very strict and detailed system of regulation of marketplaces and materials and methods of manufacture, and also the gild system compensated, to a certain extent, for the lack of commonlaw protection of the purchaser; cf. e.g. Hamilton, pp. 1141 sqq.; Gustav Klemcns Schmelzeisen, Polizeiordnungen und Privatrecht (1955), pp. 423 sqq.

88 Parkinson v. Lee (1802) 2 East 314; but cf. also still Smith v. Hughes (1871) LR 6 QB 597 at 604 sq. per Cockburn CJ: "Now, in this case, there was plainly no legal obligation in the plaintiff in the first instance to state whether the oats were new or old. He offered them for sale according to the sample, as he had a perfect right to do, and gave the buyer the fullest opportunity of inspecting the sample. . . . If, indeed, the buyer, instead of acting on his own opinion, had asked the question whether the oats were old or new, or had said anything which intimated his understanding that the seller was selling the oats as old oats, the case would have been wholly different. . . Here, however, nothing of the sort occurs. The buyer in no way refers to the seller, but acts entirely on his own judgement."

a9 Cf. Eduard Graf, Mathias Dietherr, Deutsche Rechtssprkhworter (2nd ed., 1869), pp. 259 sqq. The same applies in other countries; cf. the proverb "let their eye be their chapman" (cf. Hamilton, (1931) 40 Yak LJ 1164) or "qui n'ouvre pas yeux doit ouvrir la bourse".

"But when householders bought most of their commodities at local markets or fairs, when they were able to examine what they bought by look and feel, and haggle over the price, it may be that they 'would be more likely to feel ashamed of being outwitted than outraged at being swindled'" (Atiyah, Rise and Fall, pp. 179 sq.).

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transferred. There is often a strong possibility that the deterioration in quality might have taken place subsequently; that is why modern German law lays down very short prescription periods, which begin to run, not when the purchaser has (or could have) detected the defect, but from the time of delivery (transfer). However, what may have been an acceptable (if somewhat crude) policy in the small rural community of old, which knew only the executed sale, did not tie in with the refined standards of good faith which governed the classical, executory contract. As in the case of liability for eviction, the protection of the purchaser developed gradually and from a variety of roots.

2. Early remedies

First of all, already in the ancient law we find the actio de modo agri.91 Where land was mancipated and the vendor had stated by way of a lex mancipio dicta (a formal declaration made in the course of mancipatio) that it was of a particular size, he was liable for the proportionate amount of the price if the actual acreage turned out to be less than asserted. This liability was subject to litiscrescence,92 i.e. if the vendor (defendant) disputed the claim and had to be sued, he was condemned to pay double the amount involved (infitiando lis crescit in duplum).93 The actio de modo agri survived in classical law, albeit under new auspices,94 but fell away together with mancipatio in Justinian's time,95 Could the purchaser also make the vendor liable for dicta in mancipio, which did not relate to the size of land but to other characteristics, qualities or freedom from defects of res mancipi at large?96 We do not know, for we have only a statement by Cicero97 which may be read to imply that the phrase "uti lingua nuncupasset ita ius esto" in tab. 6, 1 of the XII Tables was applied to vitia in general. However, Cicero was no lawyer and his statements do at times display a certain lack of technical precision.

3. Liability for dolus and dicta in venditione

By the time of the late Republic the actio empti had become available where the vendor had acted in such a way that not to make him liable would have seemed in conflict with good faith. Two groups of cases fall into this category. Firstly, the vendor was responsible where he had

91Bechmann, vol. I, pp. 247 sqq.; Lenel, Quellenforschungen in den Edictcommentarcn (1882) 3 ZSS 190 sqq.; Watson. Obligations, pp. 81 sqq.; Kaser, RPr I, pp. 133 sq.

92Cicero, De offiais, 3, XVI-65; Paul. Sent. I, XIX, 1.

93Kaser, RZ, pp. 99 sq.

94Levy, Obligationetirecht, pp. 229 sqq.

9^ Cf. e.g. Bechmann, vol. Ill, 2, pp. 218 sqq.

96 Raymond Momer, La garantie contre les vices caches dans la vente romaine (1930), pp. 6 sqq.; Arangio-Ruiz, Compravendha, pp. 353 sq.; Olde Kalter, op. cit., note 24, pp. 33 sqq.;

Honseil, Quod interest, pp. 62 sqq.

1/7 De officiis, 3, XVI-65.

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fraudulently (dolo malo) failed to disclose a defect known to him.98 The earliest case of which we know was decided by Marcus Porcius Cato. A man of the name of Titius Claudius Centumalus sold his house, which was situated on the mons Coelius, to Publius Calpurnius Lanarius. He did not mention that the augurs had ordered the demolition of this house, because its height obstructed their observation of the flight of birds." About Cato's decision we hear: "[C]um in vendendo rem earn scisset et non pronuntiasset, emptori damnum praestari oportere."100 A variety of further examples is contained in the Digest, for instance Paul. D. 19, 1, 4 pr.:101 "Si servum mihi ignoranti, sciens furem vel noxium esse, vendideris, . . . teneris mihi ex empto, quanti mea intererit scisse. . . . " In order to sue the vendor, the purchaser did not have to wait until he lost the slave (by way of noxae deditio).

Secondly, the vendor was also liable under the actio empti, where he had specifically assured the purchaser, in the course of concluding the sale, that the object was free from certain (or all) defects or that it possessed certain qualities.102 For an example of such liability arising from dicta in venditione we may turn to Pomp. D. 19, 1, 6, 4: "Si vas aliquod mihi vendideris et dixeris certam mensuram capere vel certum pondus habere, ex empto tecum agam, si minus praestes."103 What necessitated a deviation from caveat emptor in this instance was not so much bad faith on the part of the vendor, but the fact that his dicta had engendered reasonable reliance in the person of the purchaser.

The actio empti, in all these cases, lay for quod actoris interest. One of the most explicit texts is Ulp. D. 19, 1, 13 pr.:104

"Iulianus . . . ait . . . qui pecus morbosum aut tignum vitiosum vendidit . . . si . . .

sciens reticuit et emptorem dccepit, omnia detrimenta, quae ex ea emptione emptor traxerit, praestaturum ei: sive igitur aedes vitio tigni corruerunt, aedium aestimationem, sive pecora contagione morbosi pecoris perierunt, quod interfuit idone venisse erit praestandum."

Julian mentions two examples: the sale of defective timber and of animals suffering from a contagious disease. The vendor is liable not

98 Monicr, op. cit., note 96, pp. 177 sqq.; Paul van Warmelo, Vrywaring teen gebreke by koop in Suid-Afrika (1941), pp. 53 sqq; Stein, Fault, pp. 5 sqq.; Honsell, Quod interest, pp. 79 sqq. Cf. also David Daubc, "Three Notes on Digest 18. 1, Conclusion of Sale", (1957) 73 LQR 379 sqq. (dealing with Gai. D. 18, 1, 35, 8 and fraudulent concealment of (the existence of) a neighbour, so that the estate sold appears larger than it is).

99This case lies on the borderline between defectiveness of the object sold and legal defects.

100Cicero, De ojficiis, 3, XVI—66.

101Cf. also, for instance, Viv./Ulp. D. 21, 1, 1, 10; Ulp. D. 21. 1, 38, 7 in fine.

102Monier, op. ci t . , note 96, pp. 134 sqq.; Olde Kalter, op. cit., note 24, pp. 54 sqq.;

Stein, Fault, pp. 28 sqq. The use of specific words or forms was not required; this was different, for instance, in English law up to the 19th century following Chandetor v. Loptts

(supra note 82).

1) 13 Cf. further e.g. Lab. D. 18, 1, 78, 3; Gai. D. 18, 6, 16 (relating to the sale of wine). 104

Cf. further Pomp. D. 19, 1, 6, 4; Ulp. D. 19, 1, 13, 2; Marci. D. 18, 1, 45 and Medicus, Id quod interest, pp. 128, 299; Honsell, Quod interest, pp. 87 sqq.

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only for the reduced value of the objects themselves but also for consequential loss: if the house that has been built with the bad timber collapses, or if the purchaser's cattle die owing to infection, compensation for these damages is within the compass of the actio empti.

4. Liability arising from specific prormssa

If the purchaser wanted to make sure that the thing sold was either free from specific defects or that it had certain qualities, he could also ask the vendor for a stipulation to that effect.105 Such promissa were usually combined with the stipulatio duplae against eviction;106 unlike the latter, however, they did not lie for duplum, but covered the purchaser's interest in the truth of the affirmations. Again, quod interest (in this instance under the actio ex stipulatu) could go beyond compensation for the lesser value of the object sold.107 There was a somewhat scholastic dispute as to whether such stipulations could in principle be regarded as valid:

"Si ita quis stipulanti spondeat sanum esse, furem non esse, vispellionem non esse et cetera, inutilis stipulatio quibusdam videtur, quia si quis est in hac causa, impossibile est quod promittitur, si non est, frustra cst. sed ego puto verius hanc stipulationem furem non esse, vispellionem10fi non esse, sanum esse utilem esse: hoc cnim continere, quod interest horum quid esse vel horum quid non esse. . . ."109

A promise to the effect that the slave sold is healthy, it was argued, is useless: for either the slave is healthy, in which case the stipulation does not have any practical relevance; or he is not healthy—then the vendor has promised something which is objectively impossible. But this argument does not hold water. What the vendor promises is neither the absence of a defect nor the presence of a certain quality, but to pay damages if, contrary to his affirmation, the thing sold does have this defect or does lack the specific quality:

". . . hac stipulatione non agitur, ut factum infectum fiat, et quod est non sit, sed quanti interest, furem non esse praestari, vel quanti interest furtum non fieri, quod omnimodo utilem actionem efficiat."110

105Monier, op. cit., note 96, pp. 10 sqq.; Arangio-Ruiz, Compravendita, pp. 355 sqq.

106Cf. e.g. Varro, De re rustica, Lib. II, 2, 6; Lib. II, 3, 5; Lib. II, 4, 4; Lib. II, 10, 5.

107Honscll, Quod interest, pp. 63 sqq.; contra: Medicus, Id quod interest, pp. 110 sqq., 117.

108A vispellio was a person whose profession it was to carry corpses, not, as has frequently been assumed, a violator of graves. Why would a purchaser not wish to have a vispellio? They stood at the lowest end of the social hierarchy and were usually regarded as very shadowy figures. Meddling with sinister affairs, usually being found in bad company and making their money by burying the poor at night, they were turpes personae. For

details, see Uwe Wesel, "Vispellio", (1963) 80 ZSS 392 sqq. 1(19 Ulp. D. 21, 2, 31.

110 Cuiacius, as quoted by Honsell, Quod interest, p. 66; Arangio-Ruiz, Compravendita,

p.357.

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