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 been destroyed or damaged or had otherwise disappeared? The edict itself only gave an answer as to the consequences of a deterioration:

" [Sji quid autem post vcnditionem traditioncmquc deterius emptoris opera familiae procuratorisvc cius factum erit... ut ca omnia restituat.^1,273

The actio redhibitoria can still be brought, but where the deterioration of the slave was caused by either the purchaser himself or by his people, the purchaser has to compensate the vendor for the decrease in value.^[1698] It is not entirely clear under which circumstances such compensation was due; the term "opera" is a fairly neutral one^[1699] and cannot, for instance, be equated with culpa or dolus. At the time the deterioration took place, the object belonged to the purchaser and thus it would hardly have been possible to think of applying fault criteria in the ordinary sense. Neither did opera necessarily imply specific actions on the part of the purchaser or his people; some influence on a psychological level was sufficient, "ut puta si imitatione conservorum apud emptorem talis factus est, aleator forte vel vinarius vel erro evasit".^[1700] Here, owing to the bad example of his new fellow-slaves, the homo venditus had deteriorated into a gambler, an alcoholic or a rover.

The Roman lawyers probably made their decision dependent upon whether the deterioration would also have occurred had the slave continued to be with the vendor or whether it was due to his transfer to the purchaser.^[1701] In the latter instance, the purchaser had to compensate the vendor, no matter whether he had been at fault or not. This would seem to be in line with what the actio redhibitoria was generally taken to be designed for: namely to effect a restoration of both vendor and purchaser to the position they would have been in had the contract not been concluded.^[1702]

(b) The fiction of "mortuus redhibetur" and problems arising therefrom

It must come as a surprise, in view of this, that, according to a widely held opinion, the risk of accidental loss (as opposed to deterioration) always had to be borne by the vendor.^[1703] "Mortuus redhibetur" is the famous tag extracted from the Roman sources;^[1704] or as §§ 467, 350 BGB put it:^[1705] the right to demand redhibition of the sale is not barred by the fact that the object which the purchaser received, has been destroyed. Taken as a general rule, however, designed to cover accidental loss at large/^[1706] the fiction of "mortuus redhibetur" is unsatisfactory.^[1707] The purchaser was owner of the object at the time it was destroyed. "Casum sentit do minus" is what one should naturally be inclined to say. Why make an exception to this rule and allow the purchaser to claim back the purchase price (even though he is not able to return the object), when the object was defective? The defect, from the purchaser's point of view, would then turn out to be a distinctly lucky coincidence.^[1708]

It has therefore been suggested that the fiction of mortuus redhibetur be restricted to those cases where the purchaser lost the slave due to the defect which gave rise to the actio redhibitoria.^[1709] This is, indeed, the solution adopted, mutatis mutandis, by the French and Italian codes,^[1710] and it would certainly be very attractive also to attribute it to classical Roman law.^[1711] It would fit in very well with the above-mentioned general idea, underlying function and application of the actio redhibitoria {"in integrum restituere debere" j:²⁸⁹ if the slave would have died anyway (because he suffered from a physical defect), the loss would normally have fallen on the vendor; had the contract of sale not taken place, the vendor would have had neither the purchase price nor the slave. Consequently, if the actio redhibitoria aims at restoring this situation, the purchaser must be allowed to claim back the purchase price without having to hand back the slave.

Otherwise, where the death of the slave had its origin in the sphere of the purchaser, or where it was purely accidental: had the contract of sale not taken place, the vendor would not have the purchase price but he would still be in possession of the slave (unless it can be assumed that the same accident would have struck the slave had he remained with the vendor).²⁹⁰ The problem is, however, that we find no indication in the Roman sources for such a restrictive application of "mortuus redhibetur".²⁹¹ On the contrary, Ulp. D. 21, 1, 31, 11 appears to indicate that, unless the purchaser could be blamed for the death of the slave, the risk was on the vendor; for this text, by introducing a further fiction ("nam si culpa eius decessit, pro vivo habendus est"), makes the negligent purchaser liable to the vendor for the value of the slave.²⁹² But it may well be that post-classical compilers substituted subjective (fault) for the classical objective criteria of risk allocation. In other words: classical law may have applied the fiction of mortuus redhibetur in cases where the death would have occurred no matter whether the slave was with the purchaser or with the vendor (principal case: death caused by the defect, but also natural disaster hitting both estates). Consequence: the price can be reclaimed, even though the slave cannot be returned, i.e. the risk is on the vendor. The fiction of pro vivo habendus est applied to all other cases: the slave being actually dead, the situation nevertheless had to be looked at, as far as possible, as if he were still alive. Consequence: the purchaser had to return his value ("praestentur ea omnia, quae praestarentur, si viveret")²⁹³ and would then receive the purchase price

However, Ulp. D. 21, 1, 21, 3, as it stands, raises a problem m that Pomponius makes his decision dependent upon scientia on the part of the vendor. But this is most probably an interpolation.

On the fugitivus in fuga cf. Ulnch Manthe, "Zur Wandlung des scrvus fugitivus", (1976)44 TR 133 sqq.; Lederle, op. at., note 275, pp. 64 sqq.; Mader. (1984) 101 ZSS 221 sqq. lul./Uip. D. 21. 1. 23. 7 and supra, p. 317.

^w This point is emphasized particularly by Mader, (1984) 11)1 ZSS 212 sqq.

³⁰ For instance, where an earthquake or a deluge had destroyed both the estates of the purchaser and of the vendor; cf. Thielmann, Sntdi Volterra, vol. II, pp. 507 sqq.

But the sources are curiously terse, anyway, where they deal with "mortuus redhibetur"; they refer to the rule more or less in passing and arc absolutely silent as to its rationale.

Ulp. D. 21, 1,31,11 has been interpreted in various different ways. As in the text, most recently, Lederle, op. cit., note 275, pp. 41 sq.; Mader, (1984) 101* ZSS 227 sqq. ²⁹³ Ulp. D. 21, 1,31, 11.

(i.e. risk on purchaser/owner). But this is largely a matter of speculation.

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

Mortuus redhibetur

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