!!Экзамен зачет 2023 год / The Law of Obligations

was not the only result to which application of the actio empti could lead.

This looks like the actio redhibitoria in the guise of the actio empti; and a few lines above this text we find, indeed, the more generalized statement, attributed already to Labeo and Sabinus, that "[rjedhibitionem quoque contineri empti iudicio".213

(b) Reception of the aedilitian principles into the ius civile

What seems to have happened is that the principles laid down in the aedilitian edict were gradually received into the ius civile.214 On the one hand, with the growing complexity of Roman economic life, there was less and less justification for the simple and straightforward caveat emptor. It became standard practice to add an express warranty to sale transactions, even outside the market place, and sooner or later this warranty was no longer perceived as a mere accidentale, but obtained the status of a naturale negotii. On the other hand, the aedilitian edict offered a reasonably satisfactory model set of rules, of which the lawyers could avail themselves in order to accommodate the need for an extended protection of the purchaser. These rules were well balanced, particularly in so far as they imposed an "objective" liability on the vendor (that is, he was liable irrespective of whether he was at fault or whether he had made special assertions), but they did not allow the purchaser to claim his full damages (quod interest); furthermore, their application was confined to certain, generally physical, defects. Thus, as far as the ius civile was concerned, a system of graduated liability could be built up by phasing in aedilitian principles where no liability had previously existed. Hence we find Iulianus stressing the difference between the vendor sciens and ignorans, the former being liable for "omnia detrimenta, quae ex ea emptione emptor traxerit", the latter only for quanti minoris.215 All in all, then, warranty for latent defects was taken to be implicit in the contract of sale, even in cases where the seller had not known about the defects himself. This warranty, implied by law, was based on a generalization of the aedilitian remedies and was effected by means of a more refined interpretation of what was owed, in good faith, under the actio empti. The aedilitian rules were read into the "oportere ex fide bona" clause of the general action on sale and

212Ulp. D. 19, 1, 11, 5; Medicus, Id quod interest, pp. 146 sq.

213Ulp. D. 19, 1, 11, 3.

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there can be little doubt today that the texts, on which this statement is based, are substantially genuine.216

(c) The position under Justinian

Nothing much remained to be done by Justinian. With the actio empti a satisfactory remedy was available to cope with the problems arising from latent defects. The purchaser could use it to claim quod interest, to ask for redhibition or for quanti minoris. In view of this, one might have expected Justinian to abolish the aedilitian remedies, for they had become redundant. Since the office and jurisdiction of the aediles had been abolished,217 the difference between the actiones redhibitoria and quanti minoris on the one hand and the actio empti on the other did not even have jurisdictional relevance and consequences any longer. In fact, however, they were not only retained as an appendage to the law of sale,218 but their range of application was extended beyond slaves and cattle to cover the sale of all things "tarn earum quae soli sint quam earum quae mobiles aut se moventes".219 The continued existence of the aedilitian remedies is evidence of the traditionalism of both the East Roman school jurisprudence and Justinian.

7.Actio empti and aedilitian remedies in the ius commune

(a)"Miretur veto aliquis, cur Aediles introduxerunt actiones . . . "

From the time of the intellectual rediscovery of the Digest in Bologna down to the days of the pandectists, the unfortunate coexistence of two sets of remedies both dealing with latent defects in the thing sold has caused difficulties.220 Of course, only the actio empti was available, if

216The classicality of the actio empti against the venditor ignorans has been recognized for centuries (cf. still Vangerow, Pandekten, vol. Ill, p. 302; Wlassak and Bechmann supra, note 214). In view of the texts referred to above, a contrary view can only be maintained on the basis of extensive interpolation assumptions: cf. Franz Haymann, Die Haftutig des Verkdufers for die Beschaffenheit der Kaufsache, vol. I (1912), pp. 71 sqq.; Van Warmelo, op. cit., note 98,

pp.55 sqq.; Pringsheim (1952) 69 ZSS 293 sqq.; Impallomeni, op. cit., note 111, pp. 247 sqq.; Honore, Studies de Zulueta, pp. 137 sqq. (but see pp. 143 sq.). Today, one tends to adopt a more conservative and cautious approach, as far as the corruption of classical texts is concerned; hence the renaissance of the pre-interpolationist view of the range of the actio

empti.

2*7 Mommsen, Romisches Staatsrecht, vol.11, 1, p. 522.

218Cf. Const. Omnem 4; Const. Tanta 5; Levy, Obligationenrecht, pp. 223 sq.; Monier, op. cit., note 96, pp. 186 sqq.

219Ulp- D. 21, 1, 1 pr. (interpolated); cf. further e.g. С 4, 58, 4, 1 (dealing with the sale of "pestibilis fundus, id est pestibulas vel herbas letiferas habens"). Cf. e.g. Monier, op. cit., note 96. pp. 161 sqq.; Van Warmelo, op. cit., note 98, pp. 16 sqq.; Arangio-Ruiz, Compravendita, pp. 394 sqq.; Impallomeni, op. cit., not 111, pp. 265 sqq. The aedilitian remedies and the actio empti stood in a relationship of elective concurrence.

220For details of the historical development of the law relating to latent defects in things sold, cf. Van Warmelo, op. cit., note 98, pp. 58 sqq.; Honore, Studies de Zulueta, pp. 132

sqq.; Norbert Burke, Einschrdnkungen der ddilizischen Rechtsbehelfe beim Kaufvon der Rezeption bis zur Gegenwart (unpublished Dr. iur. thesis, Munster, 1967); Walter-jurgen Klempt, Die

Crundlagen der Sachmdr'gelhaftutig des Verkdufers im Vemunjtrecht und Usus modertius

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the purchaser wanted to claim damages and, as far as the requirements for this claim were concerned, the actio empti not only went beyond the aedilitian remedies, but also fell short of them. It went further, in that its range of application was not confined to what one could call aedilitian defects (namely those morbi and vitia covered by the edict),221 but it was much narrower in that scientia on the part of the vendor was required.222 However, regarding the objective liability for aedilitian defects, there was a very awkward overlap of remedies. Both the actio empti and the aedilitian remedies were available, either for quanti minoris or for redhibition.

In view of this, one could point out differences223 and try to show that, for instance, quanti minoris actually meant one thing in the one context and something else in the other. This was the approach adopted by Accursius, the influential author of the authoritative Glossa

Ordinaria:

"No. hie differentiam", he wrote, "inter actionem quanto minoris, civilem et praetoriam. nam in civili agitur, quanto minoris esset empturus, si scisset, ut hie [sc.: D. 19, 1, 13 pr.]. Sed in praetoria quanto minoris valuit tempore contractus propter vitium: ut infra [D. 21, 1, 31, 5]."**

In other words: under the actio empti the purchaser could recover the difference between the contract price and what he personally would have paid had he known of the defect; the (aedilitian) actio quanti minoris225 allowed him to recover the difference between the contract price and the (objective) market price for an object with that defect. Others also tried to distinguish the effects of the actio redhibitoria from the kind of redhibition (or resolutio venditionis) that could be obtained by bringing the actio empti.226

(b) Merging the remedies

Those, on the other hand, who did not see any difference between the praetorian and civilian way of dealing with redhibition or assessing

(1967). Cf. also the detailed commentary of Gliick, vol. 20, pp. 3 sqq. and the presentation by Pothier, Traite du contrat de vente, nn. 203 sqq.

221Cf. e.g. Wissenbach, Exercitationes, Disp. XLI, n. 9; Brunnemann, Commentarius in Pandectas, Lib. XXI, 1, Ad L. Labeo, I, § 3, n. 8; Gliick, vol. 20, pp. 137 sq.

222Cf. e.g. Bechmann, vol. Ill, 2, pp. 189 sqq.

223Cf. e.g. Wissenbach, Exercitationes, Disp. XLI, n. 9: "Miretur vero aliquis, Cur Aediles introduxerint actiones, Redhibitoriam et Aestimatoriam, cum ex iisdem causis competant actiones Civiles. . . . Sed mirari desinat, Differentiae inter illas actiones Aedilitias et Civiles multae sunt."

224Gl. Essem empturus ad D. 19, 1, 13 pr.; for details about the medieval discussions of the purchaser's actions for physical defects, see Van Warmelo, op. dt., note 98, pp. 58 sqq.; Hermann Dilcher, Leistungsstorungen, pp. 224 sqq.; Peter Stein, "Medieval Discussions of the Buyer's Actions for Physical Defects", in: Studies in the Roman Law of Sate in memory of Francis de Zulueta, 1959, pp. 102 sqq.

225Also often referred to as actio aestimatoria.

226e.g. Bechmann, vol. Ill, 2, pp. 189 sqq.

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quanti minoris,227 often attempted to obviate the problem by merging aedilitian remedies and actio empti, in so far as they overlapped. Digesta 21, 1 ("De aedilicio edicto et redhibitione et quanti minoris") was usually regarded as sedes materiae and the appropriate place to discuss the rules relating to latent defects. Whether, under these circumstances, the actio empti gradually faded away and finally disappeared from the scene228 or whether—the other way around—the aedilitian remedies were fitted into the general framework of the actio empti and the corresponding duties arising from sale229—the practical result was the same: the whole complex was governed by a single set of rules (sometimes referred to as actio empti quanti minoris/actio empti redhibitoria). This was also the easiest way to cope with the one major difficulty arising in the practical application of the law; for however much the actions had become assimilated, there always remained one characteristic difference: the actiones redhibitoria and quanti minoris prescribed in six months and one year respectively, the actio empti was subject to the general prescription period of 30 years.230 The greater the identity between the remedies, the more unsatisfactory this divergence. Few writers were prepared to acquiesce in the reasoning advanced, for instance, by Samuel Stryk—"Quid enim opus fuisset actionem empti ad materiam redhibitionis extendere, si iisdem cancellis cum aedilitia actione circumscribenda . . ."231—since the aediles had already created the actiones quanti minoris and redhibitoria, but had subjected them to a strict temporal limitation, what point would there have been in the introduction of the same remedies again, via the actio empti, if not to elevate them from the status of actiones temporales to that of actiones perpetuae? Yet, the practical result of such unrestricted concurrence of actions would have been a total erosion of the short prescription period laid down in the aedilitian edict, and such a result was usually regarded as absurd:

"Nam si hie ex empto actio est, perpetuo quoque in earn rcm dabitur. Est cnim actio ex empto civilis, eoque etiam perpetua. Quod si est: erit inutile ex edicto aedilium intra six menses experiri, cum perpetua jure civili compctat. Imo vero absurda sententia admodum efficietur, ut cum jure civili ex hac caussa actio competat perpetua: aediles, qui adiuvandi juris civilis, et aequitatis constituendae caussa edicta

227Cf. e.g. already Baldus dc Ubaldis, Consilia, vol. V, CCCCXCIX ("emptor potesi agere redhibitoria, vel certe quanto minoris . . . potest agi actione ex empto similiter").

228Cf. e.g. Ulrich Huber, Praekctiones, Lib. XXI, Tit. I, nn. 4 sq.; Justus Henning Boehmer, Doctrina de actionibus (Francofurti ad Moenum, 1738), Sect. II, Cap. VIII, § 77.

229Cf. e.g. Doncllus, Commentarii de jure Civili, Lib. XIII, Cap. II, III ("Earum praestationum, quae a venditore in re vendita citra aliam conventionem exiguntur, quatuor sunt capita. Primum, ut rem venditam tradat emptori . . . Tertium, ut dum emptor rem habebit, habeat incorruptam . . ."); for details Cap. I ll and "Commentaria ad titulum, de aediliticio edicto" (Opera Omnia, vol. X, col. 1327 sqq.); Lauterbach, Collegium

theoretico-practicum. Lib. XXI, Tit. I, XXXIV.

230Based on С 7, 39, 3, 1 (Honor, et Theodos.).

231Usus modenuis pandectamm. Lib. X XI, Tit. I , § 52.

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Even those who continued to maintain the availability of two sets of remedies on account of latent defects therefore usually subjected the actio empti to the short prescription periods as well, where this general remedy competed with those of the actiones aediliticiae.233 Only the claim for damages was taken to prescribe within 30 years—the difficulty, however, being that quod interest could sometimes take the form of quanti minoris or redhibition!234

(c) The scope of application of the actio redhibitoria

A further interesting dispute, which arose with the reception of Roman law in Europe, related more specifically to the availability of the actio redhibitoria. Some writers continued to maintain that, whenever an object sold suffered from an aedilitian defect, the purchaser was free to use either of the aedilitian remedies: "Est vero in electione emptoris, an velit redhibitoria, an vero quanti minoris agere."235 Others (at times they represented the prevailing opinion) favoured a restriction of the purchaser's freedom of choice. Redhibition of the whole contract is a fairly drastic step, which the purchaser should not be allowed to take too lightly. Hence the purchaser should be able to use the actio redhibitoria only, if he would not have bought the object had he known about the defect. This, presumably, was only the case if the defect impeded proper use of the thing. On that basis, we often find the actio redhibitoria being granted only "[ob] tale vitium . . ., quod usum ministeriumque hominis plane impedit";236 others based the availability of the actio redhibitoria more directly on the hypothetical will of the purchaser: ". . . si tale vitium in re vendita sit, propter quod actor earn rem empturus non fuerit."237 Did that entail that the actio quanti minoris, in turn, was confined to those cases in which the actio redhibitoria could not be brought (i.e. "actio quanti minoris propter tale vitium datur, quod omnem usum non impedit, et sic emptor quidem emisset earn, verum non eodem, sed minori pretio"238), so that their fields of application were mutually exclusive? Or was the

Donellus, "Commentaria ad titulum, de aedilitico edicto" (op. cit., note 229), Cap. V, n. 4; cf, further e.g. Heinrich Hahn, Observata theoretico practica, Ad Matthaei Wesenbecii in L. libros Digestorum Commentaries {Helmstadii, 1659), Pars II, Lib. XXI, Tit. I, Obs. n. 9; Lauterbach, Collegium theoretico-practicum. Lib. XXI, Tit, I, XXXIV.

233Gluck, vol. 20, pp. 153 sqq.; Windscheid/Kipp, § 393, n. 1, 12.

234Windscheid/Kipp, § 393, n. 9.

235Struve, Syntagma, Exerc. XXVII, X; cf. further Pothier, Traite du contrat de vente, n. 233; Johann Paul Anselm Feuerbach (the great criminal lawyer), Civilistische Versuche (1803),

Erster Theil, pp. 51 sqq.; Gluck, vol. 20, p. 119.

36 Stryk, Usus modermispandectarum. Lib. XXI, Tit. I, § 11; cf. further e.g. Brunnemann,

Commentarius in Pandectas, Lib. XXI, 1, Ad L. Labeo, I, § 3, 6.

237Ulrich Huber, Praelectiones, Lib. XXI, Tit. I, n. 6; cf. also Perezius, Praelectiones, Lib. IV, Tit. LVIII, n. 5; Voet, Commentarius ad Pandectas, Lib. XXI, Tit. I, IV.

238Cf. e.g. Stryk, Usus modemus pandectarum, Lib. XXI, Tit. I, § 11.

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actio quanti minoris, as the less far-reaching of the two remedies, applicable in any event, whether the actio redhibitoria could be brought or not?239 That was not entirely clear, either.

(d) Excursus: Special rules relating to the sale of cattle

It is interesting to note that, in the restriction of the actio redhibitoria, some influence of Germanic law manifested itself.240 There the position of the purchaser was characterized, generally, by legal proverbs such as "Augen auf Kaufist Kauf". Special rules existed only with regard to the sale of cattle (particularly horses), but even here the purchaser could cancel the sale only in case of certain grave defects ("Hauptmangel" or principal defects). The vendor's liability was objective, that is, independent of fault, but subject to very short periods of warranty. A remedy comparable with the actio quanti minoris was unknown.241 These rules relating to the sale of cattle became so firmly entrenched in both the mores hodiernae and the local statutory laws that they largely withstood the reception of Roman law.242 They are, for instance, still part and parcel of the German BGB which in that respect confirms Lord Simonds' dictum, that "the law . . . has grown up historically in separate compartments and . . . beasts have travelled in a compartment of their own".243 The general rules relating to warranty against latent defects apply "to the sale of horses, asses, mules, hinnies, cattle, sheep and pigs only in so far as it is not otherwise provided by §§ 482 to 492",244 According to § 482 I, the seller is responsible only for principal defects, and then only if they are discovered within specific periods of warranty. For details, § 482 II refers to an Imperial Ordinance.245 This ordinance, enacted in March 1899, is still in force today and represents

239 Cf. e.g. Ulrich Huber, Praelectiones, Lib. XXI, Tit. I, n. 6. 2411 Cf. particularly Feucrbach, loc. cit.

241Cf. e.g. Otto Stobbe, Heinrich O. Lehmann, Handbuch des Deutschen Privatrechts, vol. Ill (3rd ed., 1898), § 232, pp. 304 sqq., 309 sqq; Georg Bescler, System desgemeinen deutschen Privatrechts, vol. I (4th ed., 1885), p. 507; Klempt, op. cit., note 76, pp. 50 sqq.

242Cf. e.g. the compilation and analysis by von Kiibcl. By the end of the 19th century, the Germanic system of liability for principal defects held sway in most parts of Germany; the "Romanistic system" (i.e. no distinction as far as liability for latent defects in animals and other things is concerned) applied only in Mecklenburg, Braunschweig, Oldenburg, Schaumburg-Lippe, Lippe-Dctmold, Sachsen-Weimar, Rudolstadt and in large parts of Schleswig-Holstein. In other parts of Europe, too, local rules relating to the sale of animals survived the reception of Roman law; cf, as far as French law is concerned, Van Warmelo, op. cit., note 98, p. 172 sqq. In Holland horses sold were warranted only "klaar van Sesscn" (sound in six points, namely four legs and two eyes); cf. e.g. Van Leeuwen, Cemura Forensis, Pars I, Lib. IV, Cap. XIX, n. 16 (". . . aliis vitiis, veluti si sit lunaticus, retrogradus aut pavidus, si transiungi nequcat, si sit calcitrosus . . . venditor moribus nostris non tenetur";

Voet, Commentarius ad Pandectas, Lib. XXI, Tit. I, XI; Van Warmelo, op. cit., note 98, pp.

85 sqq.

24i Read v.J. Lyons & Co. Ltd. [1947] AC 156 (HL) at 182.

244§ 481 BGB.

245Its text is reproduced, for instance, in: Mugdan, vol. II, p. 1411; Putzo, in: Palandt, BGB (47th ed., 1988), sub § 482, in fine.

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a somewhat anachronistic legal curiosity.246 It gives a fairly detailed list of principal defects (ranging from red murrain in pigs to broken wind or staggers in horses) and provides for periods of warranty between

three and 28 (usually: 14) days. It is obvious that, by not subjecting the sale of cattle to the general rules of the §§ 459 sqq.,247 the fathers of the

BGB favoured the interests of the cattle-selling, farming community; the general rules are much more sympathetic to the position of the purchaser. In an historical perspective, it is ironical to see that the aedilitian remedies did not (and do not, in their modern, codified version) apply to the sale of those very objects for which—apart from slaves—they were originally developed. The Germanic law, in turn, recognized special rules relating to the sale of cattle in order to tighten the vendor's liability; yet, once the aedilitian remedies had been received with regard to all other objects, they turned out to constitute

aprivilege for cattle-sellers.

(e)Modern German law

Leaving the special compartment reserved for animals (in reality: for farmers) aside, the German BGB attempted little more than to codify the current Roman common law on the topic of liability for latent defects.248 The aedilitian remedies, which had originally applied only to slaves and cattle, dominated the scene, even though slavery had been abandoned and the sale of cattle was governed by special rules. As a consequence, the modern discussion still largely follows Roman thinking patterns. This does not have only beneficial effects. The question of when an object should be considered defective is often determined by reference to its fitness for use. This is in line with what Ulpianus sets out in D. 21, 1, 1, 8, but does not provide a useful criterion when it comes to (for instance) spurious paintings or imitated pearls.244 Both types of objects are presumably fit for their ordinary "use" (i.e. to be hung up in the lounge or to be worn for a gala dinner); yet, provided they were sold as genuine, they should clearly be regarded as defective. The limitation of the claim for damages to cases where a promised quality in the thing sold is absent or where the vendor has fraudulently concealed a defect, has given rise to great difficulties, in so far as it is hard to reconcile and coordinate this

246 One of the reasons why it was deemed necessary to lay down strict and detailed rules was the fear of making the outcome of judicial proceedings dependent upon the expert opinions of veterinary surgeons. Being generally speaking unenlightened and scientifically far behind the times, the latter were likely to confuse and misguide the court. For further about §§ 482 sqq. BGB and the Imperial Ordinance, see Fritz Ostler, "Kritik am Viehgewahrschaftsrecht", 1956 Juristenzeitung 471 sqq.; Petcrs/Zimmermann, Verjahntngsfristen, pp. 142 sqq.

The best summary ot all pros and cons can still be found in von Kubel's motivation of his draft, in: Werner Schubert (ed.), Vorentwiirfe, Schuldrecht 1 (1980), pp. 425 sqq.

24* Cf. e.g. "Motive", in; Mugdan, vol.11, p". 123.

244 Honsell, Geddchtnisschrift Kitnkel, p. 62,

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restrictive attitude with the general remedies of culpa in contrahendo and positive malperformance.2Sn In both these latter instances, a claim for damages is granted, as a matter of course, even in cases of mere negligence.

The short prescription period, contained today in § 477 BGB, has proved to be a veritable minefield of problems. Not only is the period per se too short, it is also totally out of harmony with the general period of 30 years (!), applicable in cases of (for instance) culpa in contrahendo and positive malperformance. This has led to preposterous discrepancies in the solution of very closely related problems.251 Finally, if we look at modern standard contract forms, we often find the statutory remedies of the purchaser being substituted by a right to demand removal of the defect.252 This shows that the Romanistic fixation on redhibition, reduction of the purchase price and {under certain, limited circumstances) damages as the only possible remedies in cases of latent defects, is out of tune with the commercial consuetudines modernae.253

(f) The system of remedies in Roman-Dutch Saw

In an uncodified, namely their Roman-Dutch, version the aedilitian remedies still apply in modern South African law.254 Not surprisingly, their coordination with the actio empti has in the course of time given rise to problems. Today the actio empti is usually taken to apply, if a vendor guarantees the absence of defects or promises the presence of certain qualities in the thing sold. If he then delivers a thing that is defective or lacks the promised qualities, he is guilty of a breach of contract and liable, in accordance with general principles, for

1 For a discussion of this problem, sec e.g. H.P. Wcstermann, in: Miinchener Kommentar, vol. Ill, 1 (2nd ed., 1988), § 463. nn. 31 sqq. It docs not arise in other modern European legal systems, where the purchaser is usually granted a contractual claim for damages (including consequential loss) if the vendor was at fault; sometimes, incidentally, not even fault is required: cf. Jiirgen Basedovv. Die Reform des deutschen Kaufrechts (1988), pp. 30 sqq., 73 sqq.

~э: For details, see Peters/Zimmermann, Verjahnmgsfristm, pp. 182, 202 sqq.

252 This has, for instance, necessitated the regulations contained in § 11,п. К) а-с of the Gesetz

гиг Regelung des Rechts dtr AUgemeinm GescMfisbedmgungen (AGBG; General Conditions of Business Act) of 1976. For details, see, for example, Hcin Kotz, in: Miinchener Kommentar, vol. I (2nd ed., 1984), § 11 ABGB, nn. 80 sqq; for a comparative analysis, see Basedow, op. cit., note 250, pp. 63 sqq.

" " So, too, Honsell, Gedachtnissclmft Kunkel, p. 65. The BGB does not recognize a right to demand removal of the defect. Differently, for instance, § 932 ABGB. As far as the sale of fungibles is concerned. § 480 does, however, give the purchaser the right to demand, instead of cancellation or reduction, that in the place of the defective thing another one free from defects be delivered to him. During the 19th century, the question whether the aedilitian actions are applicable to generic sales or not was vehemently discussed; for details, see Burke, op. cit., note 220, pp. 86 sqq. (who also provides information about the attitude of modern legislators on this problem).

2D4 Even to cattle (Коек v. Du Plessis 1923 OPD 113) and to the sale of incorporeals (cf. in this context Holmes JA, in Phame (Ply.) Ltd, v. Paizes 1973 (3) SA 397 (A) at 419H-420A: ". . . the aedilitian relief, recognized under the Roman-Dutch law, can, while retaining its basic principles, be adapted to apply to the modern circumstances . . .").

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damages.255 Again, the vendor is liable under the actio empti where he intentionally conceals from the purchaser the presence of certain defects known to him or where he makes statements relating to the quality of the thing, which he knows to be wrong and which induce the purchaser to enter into the contract.256 Here we are dealing with fraudulent misrepresentation. Otherwise, that is, where the vendor sells a defective thing without, however, either giving an express or tacit guarantee or knowing about the defect, the purchaser can avail himself of only the actiones quanti minoris or redhibitoria. His choice is limited, in so far as the latter of these remedies applies only where he would not have bought the thing had he known about the defect, or where the defect is of such a nature, that it prevents the ordinary use of the thing.257 The actio empti does not compete with the aedilitian remedies. That has been spelt out with regard to the actio redhibitoria by Watermeyer CJ, in the important case of Hacked v. G. & G. Radio and Refrigerator Corporation,258 but it applies to the actio quanti minoris too. There is only one right of action259 and Van Warmelo has characterized it in the following way:

"Om te se dat die actio empti die actiones aediliciae absorbcer, is dus ook 'n halwe waarheid. Dit is beter om te se 'n nuwe aksie het ontstaan waarin die elemente van die actio empti en die actiones aediliciae veremg is."2'1"

In Hackett's case the matter was raised because of the different prescription periods applicable to the aedilitian action, on the one hand, and the actio empti, on the other.2fl1 Today the discussion is largely academic, for the new Prescription Act subjects both kinds of "debts" to the general prescription period of three years.262

(g) Phame v. Paizes

More recently, attention has been focused on the precise ambit of liability for dicta et promissa. The point of controversy is whether the vendor is liable, under the aedilitian remedies, for what one could call innocent misrepresentation relating to the quality of the thing sold. The matter was decided in Phame (Pty.) Ltd. v. Paizes,2^ a cause celebre, with J.C. de Wet, the grand old man of South African jurisprudence,264 Hennie Erasmus (a well-known Latinist and law professor),265 and

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Holmes JA26fS (famous for bringing "colour and cogency . . . to the arid wastes" of the South African law reports)2*7 as dramatis personae. After an extensive review of the old authorities (albeit in translation) and after consulting, inter alia, Paul van Warmelo's thorough monograph (which was specifically complimented as being "very learned"),268 the court came to the conclusion that the aedilitian remedies are available not only if the res vendita suffered from a latent defect at the time of the sale but also if the seller made a dictum et promissum to the purchaser, on the strength of which the latter entered into the contract or agreed to the price in question and which later on turned out to be unfounded. Dicta et promissa are then defined as "material statement(s) made by the seller to the buyer during the negotiations, bearing on the quality of the res vendita and going beyond mere praise and commendation";269 the decision carries on to carve out criteria for determining under which circumstances a statement by the vendor can be said to go beyond mere praise and commendation. These conclusions have been criticized by various authors,270 but they do not appear to be in conflict with the Roman law in point.271 Furthermore, they fit into a general trend in South African law towards imposing liability for non-fraudulent misrepresentation. Such liability can, since the famous Trust Bank case of 1979,272 be based on delict. It remains to be seen how the aedilitian and delictual remedies will be able to co-exist.

8. Mortuus redhibetur

Before we conclude our reflections on latent defects, two marginalia should still be added. The one relates to the actio redhibitoria, the other to the claim for damages.

(a) The problem of the impossibility of restoration

As far as the aedilitian actio redhibitoria was concerned, we have seen that, where the purchaser chose to avail himself of this remedy, he had to restore the slave or animal to the vendor before the latter could be condemned to pay back the purchase price. Did this entail that the right to claim redhibition was excluded where the purchaser was no longer able to hand the (defective) object of the sale back, or to hand it back in the state in which he had received it, because it had in the meantime

2661973 (3) SA 397 (A) at 407 sqq.

267J.J. Gauntlett, "The Sayings of Mr. Justice Holmes", (1974) 37 THRHR 169 sqq.

2681973 (3) SA 397 (A) at 410E.

2fi ''l973 (3) SA397(A) at 418A.

270S.WJ. van der Mcrwc, M.F.B. Reineckc, (1974) 37 THRHR 175 sqq.; De Wet en Yeats, pp. 306 sq.; Wouter de Vos," Onopsetlike wanvoorstelling by kontraksluiting", in:

J.C. Noster, 'n Feesbundc! (1979), pp. 63 sqq.

271Cf. supra, pp. 315 sq., 319.

272Administrates, Natal v. Trust Bank van Ajrika Bpk. 1979 (3) SA 824 (A); for details, c(. infra, pp. 674, 1042 sq.

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