Actio empti and aedilitian remedies in the ins commune

(a) "Mretur 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.^[1661] Of course, only the actio empti was available, if 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.

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, nt hie [sc.: D. 19, 1, 13 pr.]. Sed in praetoria quanto minoris valuit tempore contractus propter vitium: nt 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.

(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 Glück, vol. 20, pp. 3 sqq. and the presentation by Pothier, Tratte du contrat de vente, nn. 203 sqq.

³ Cf. 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.

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

Cf. 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."

^a Gl. 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.

²⁵ Also often referred to as actio aestimatoria.

³⁵ e.g. Bechmann, vol. Ill, 2, pp. 189 sqq. quanti minoris,^[1662] 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 scene^[1663] 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 sale^[1664]—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).

"Nam si hie ex empto actio est, perpetuo quoque in earn rem 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 competat. 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 proponere debent, ac jus civili subsequi, intra sex tantum menses dent: idest, contrarium jus proponant."^[1667]

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.^[1668] 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!^[1669]

(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.

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".

j³⁹ Cf. e.g. Ulrich Huber, Praelectiones, Lib. XXI, Tit. I, n. 6.

²⁴¹¹ Cf. particularly Feuerbach, loc. cit.

²¹ Cf. 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.

²¹² Cf. 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.

²⁴¹ Read v.J. Lyons & Co. Ltd. [1947] AC 156 (HL) at 182.

“ § 481 BGB.

²⁵ Its text is reproduced, for instance, in: Mugdan, vol. II. p. 1411: Putzo. in: Palandt, BGB (47th ed.. 1988). sub § 482. in fine.

327 a somewhat anachronistic legal curiosity.^[1674] 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.,"^[1675] 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 a privilege 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.^{[1676] [1677] [1678] 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 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.^[1679] 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.^[1680] 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.^[1681]

(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.^[1682] 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 damages.^[1683] 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.^[1684] 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.^{[1685] [1686] 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, but it applies to the actio quanti minoris too. There is only one right of action[1687] 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."^[1688]'^[1689]"

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.^[1690]

(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,^[1691]'' 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 Holmes JA^26fS (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"),^[1692] 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";^[1693] 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,^[1694] but they do not appear to be in conflict with the Roman law in point.^[1695] 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,^{[1696] [1697] be based on delict. It remains to be seen how the aedilitian and delictual remedies will be able to co-exist.}

8.