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 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

"lulianus... ait... qui pecus morbosum aut tignum vitiosum vendidit... si... sciens reticuit et emptorem decepit, 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

⁵⁸ Monier, 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 Daube, "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).

⁹ This case lies on the borderline between defectiveness of the object sold and legal defects.

^№ Cicero, De ojficiis, 3, XVI—66.

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

¹⁽² Monier, op. cit., 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; Marei. D. 18, 1, 45 and Medicus, Id quod interest, pp. 128, 299; Honsell, Quod interest, pp. 87 sqq. 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.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Liability for dolus and dicta in venditione

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