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.[1584] Such promissa were usually combined with the stipulatio duplae against eviction;[1585] 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.[1586] [1587] 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 est. sed ego puto verius hanc stipulationem furem non esse, vispellionem10fl non esse, sanum esse utilem esse: hoc enim continere, quod interest horum quid esse vel horum quid non esse...."[1588]
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."[1589]
5.
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