Once again: "Si vas" (Pomp. D. 19,1, 6, 4)

(a) The development of the "Pothier” rule

While discussing the availability of the actio empti in cases of latent defects, we came across a text by Pomponius, dealing with the sale of a defective vessel:

"Si vas aliquod mihi vendideris...

At first the traditional view is presented, according to which the seller was liable under the actio empti only in cases of dolus. In the end, however, Pomponius subscribes to Labeo's bold extension of the seller's liability. This text has played a very interesting role in the history of private law. Its interpretation always presented difficulties. Many have regarded the text as interpolated."⁹⁵ Others accept its genuineness, but are divided as to whether Labeo/Pomponius's statement is based on a tacit guarantee,²⁹⁶ an implied term that the thing was not useless,²⁹⁷ or on a liberal perception of the requirements of good faith inherent in sale.²⁹⁸

Similar disputes about the meaning and importance of D. 19, 1, 6, 4 have been raging since the Middle Ages. "Seis quantum glossatores et Doctores hie sudaverint, et frustra sursum deorsum sese jactaverint", as Molinaeus vividly puts it.²⁹⁹ It was Molinaeus, however, who gave the whole discussion a new turn:

"Cum enim vasculariam profiteatur, sive vasa cudat, sive at aliis facta vendat, et sic hanc artem vel negotiationem exercendo, si non semper expresse, saltern semper tacite ipso facto, et ex professo affirmat vasa ad usum, ad quern prostant, vaeneunt, vel elocantur, idonea, integra esse".³⁰⁰

By undertaking to produce or professionally to sell objects like the one sold, producer and merchant seller ipso facto and ex professo guarantee

³⁴D.

³⁶ Cf. e.g. Franz Haymann, Die Haftung des Verkäufers Jur die Beschaffenheit der Kaufsache. vol. I (1912), pp. 101 sqq.; Werner Flume, "Zumromischen Kaufrecht", (1934) 54 ZSS 330.

³⁵ Cf. e.g. Windscheid/Kipp, § 393, n. 2.

³⁷Cf. e.g. Honore, Studies de Zulueta. p. 144.

³⁸Cf. e.g. Olde Kalter, op. cit., note 24, pp. 58 sqq.

³⁹ Tractatus de eo quod interest. § 49; for further details about these disputes, see § 19 (which has, however, been left out in Erasmus' edition and translation of the text (Johannesburg, n.dO).

300 ^A 49 (analysed by Honore, Studies de Zulueta. pp. 147 sqq.). the vessels to be fit for use.³⁰¹ Even if they were in ignorance, they are liable not only for quanti minoris, but for the purchaser's full interesse, consequential loss included.³⁰² Robert Joseph Pothier, as usual, nut into elegant French what Molinaeus had already said in bad Latin.^{3 3} If the vendor did not know about the defect of the article sold, he is not liable, normally, for consequential loss. But there is one exception: "c'est le cas aiiquel le vendeur est on ouvrier, on tin marchand qui vend des ouvrages de son art, on du commerce dont il fait profession. "^3M Pothier explains this exception on the basis of the rule of imperitia culpae adnumeratur; the producer, in these instances, "par la profession de son art, spondet peritiam arris", and lack of professional skill is to be considered a form of culpa. The same applies to the merchant-seller: "Par la profession publique, qu'ilfait de son commerce," he guarantees that his articles are fit for use. This argument does not appear to be entirely convincing, for one can think of many instances where the vendor's lack of knowledge about the defect cannot really be attributed to imperitia. This may be one of the reasons why the producer-merchant seller's liability a la Pothier has not been received by either pandectist doctrine or by the BGB.³⁰⁵ Nor did the Roman-Dutch authors adopt it; according to them a liability for consequential damages could attach only to the venditor sciens.^{3 6} Voet alone recognized one exception, but only in the case of an artifex, not of a merchant-seller.³⁰⁷ Nevertheless, the "Pothier rule" (as it has come to be called) has been received in modern South African law.

(b) The English Sale of Goods Act

It might not be inapposite in this context to refer also to English law.^{312 [1714] § 14(1) of the Sale of Goods Act until 1973 contained the following provision:}

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgement, and the goods are of a description which it is in the course of the seller's business to supply, there is an implied condition that the goods shall be reasonably fit for such purpose",

and § 14(2) added specifically:

"Where the goods arc bought by description from a seller who deals in goods of that description, there is an implied condition that the goods shall be of merchantable quality."

There is every reason to believe that these rules were inspired by the "Pothier rule" and are thus ultimately based on Pomp.