Extended liability under the actio empti

If we survey what has been said so far and try to sum up the law relating to latent defects at, say, the time of Salvius lulianus, we must come to the conclusion that the picture was still somewhat patchy.

Ulp. D. 21. 1. 38. 10 (referring only to the actio redhibitoria"). ^21x1

Ulp. D. 21. 1. 38. 5.^31,1 Ulp. D. 21. 1. 38. 7. ²⁰² Ofilius-Ulp. D. 21. 1. 8.

^21,3 Ulp. D. 21. 1. 38 pr.; Caelms/Ulp. D. 21. 1. 38. 11.

“ Ulp. D. 21. 1. 38 pr.; for details, see Ulp. D. 21. 1. 38. 12 sqq.

³¹⁵ Of course, the purchaser could always insist on the inclusion of a pactum displicentiae into the contract. He could then call off the sale if he did not like the object he had bought, even though it might not be defective (c(. infra, pp. 739 sqq.). As far as the sale of slaves is concerned, a specific pactum redhibendi seems to have been in use: the sale was concluded "ita..., ut, nisi placuerit, intra praefinitum tempus redhibeatur" (Ulp. D. 21, 1,31, 22). This clause served the same function as a pactum displicentiae but was modelled on the actio redhibitoria. Cf. Karlheinz Misera, "Der Kaufauf Probe", ANRW, vol. II. 14 (1982), pp. 531 sqq.

(a) Pomp. D.

Until about three decades ago it was the more or less generally accepted view that classical Roman law never advanced beyond that point. In the meantime, however, a different opinion has been gaining ground.

It is now widely recognized that we can see, in the course of classical jurisprudence, an energetic move towards a generalized liability for latent defects.^[1648] The vehicle for this development was the actio empti, its motor the "ex fide bona" clause inherent therein. Again (as in the case of liability for eviction) lulianus seems to have played an important role, but he could take up and build upon the idea of a contemporary of Augustus, Marcus Antistius Labeo. The latter was commenting on a case involving the sale of a vessel,^[1649] to which we have already briefly referred.^[1650] According to the traditional opinion, the vendor was liable only for dolus, if that vessel did not turn out to be whole; unless, of course, he had given an express warranty to that effect:

"IS]ed si vas mihi vendideris ita, ut adfirmares integrum, si id integrum non sit, etiam id, quod eo nomine perdiderim, praestabis mihi: si vero non id actum sit, ut integrum praestes, dolum malum dumtaxat preastare te debere".

Labeo, however, argued that specific dicta or promissa should not be necessary in order to ensure delivery of a vessel that is whole:.. et ilium solum observandum, ut, nisi contrarium id actum sit, omnimodo integrum praestari debeat.... "In other words: the vendor does not have to give a specific warranty to the effect that the vessel is fit for use; on the contrary, if he does not want to be responsible for its defectiveness, he specifically has to exclude liability.^[1651] But what did the liability entail? This was spelt out by lulianus:

"... ait enim, qui pecus morbosum aut tignum vitiosum vendidit, si quidem ignorans fecit, id tantum ex empto actione praestaturum, quanto minoris essem empturus si id ita esse scissem."^[1652]

This seems to be the actio quanti minoris; and yet, as we can see from the second example (tignum vitiosum), we are not dealing with aedilitian liability but with the normal actio empti.

"Si quis virgmem se emcrc putasset, cum mulier venisset, ct sciens errare cum venditor passus sit... ex empto compctcre actionem ad resolvendam emptionem.... "^2>2

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 "[rjedhibi- tionem quoque contineri empti iudicio".^[1654]

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

What seems to have happened is that the principles laid down in the aedilitian edict were gradually received into the ius civile.^[1655] 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.

(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,^[1658] 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,^[1659] 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".^[1660] The continued existence of the aedilitian remedies is evidence of the traditionalism of both the East Roman school jurisprudence and Justinian.

7.