Remedies available to the buyer in Roman law of sale
Roman law of sale (emptio et veditio = buying and selling)1 was one of the consensual contracts (contractus consensu), which form of contracts is extremely important in the development of the law of contract. In Good faith in contracting it was explained that the Romans had a closed system of contract, in that a contract was only a contract if it complied with the particular requirements the law set for that particular type of agreement. In an open system of contract, any agreement that complies with general principles that give rise to liability, is a contract. Certain peculiarities or specific terms simply serve to distinguish one type of contract from another (e.g. sale of a house from lease thereof, sale transferring ownership permanently, lease being specifically a temporary arrangement).
The Roman concept of the consensual contract was the first step in Europe towards the notion of an open system of contract, as the idea was that the agreement was based on consensus between the parties rather than compliance with specific requirements set by law.2 Because consensus was required for the formation of an agreement of sale, bona fides was of utmost importance. The parties had to be able to trust one another. For this reason (and probably because there are always one or two untrustworthy people out there) the Romans developed the notion of certain guarantees that were regarded as being incorporated into the agreement of sale, regardless of whether the parties had explicitly agreed to these guarantees. They could, of course, agree to exclude one or more of these automatic guarantees.
The two most important guarantees that developed were the guarantee against the purchaser later being evicted (in the strictly legal sense) by a third person who claims stronger title to the merx and the guarantee against latent defects in the thing sold.
The guarantee against eviction
It was accepted that the seller had to guarantee that the purchaser ought not be evicted by a third party (or even the seller himself) after the conclusion of the agreement, by the third party claiming ownership of the merx and recovering it with the rei vindicatio (vindicatory action in terms of which the owner of a thing recovers it from the possessor). This notion took a long time to develop.
Originally there was no such guarantee, and the purchaser simply had to bear the loss, unless he could show that the seller had acted fraudulently, knowing that he was incapable of transferring ownership of the thing to the purchaser. As a consequence, the prudent Roman started requiring the seller to stipulate (the solemn and sacred unilateral promise = stipulatio) that he would recompense the seller if he were to be evicted. Two such stipulations developed, to whit the stipulatio habere licere (= the promise to have when you wish it, i.e. upon request for it) and the stipulatio duplae (= promise to (give) twice). In terms of the first, the seller promised to recompense the purchaser in the event of eviction, and in the second, he promised to pay double the price as form of punishment in the event of eviction.3
The natural development for the law was to require that the stipulation duplae be made in all cases, and eventually the praetor developed the law so that the promise was deemed included in the agreement whether it was made or not, and the purchaser could exact double the price in the event of eviction.
By the time of the emperor Justinian, the notion had developed that the guarantee against eviction was an automatic one, and the purchaser could recover his damages from in the event of eviction. The damages, however, did not always necessarily equate to double the price, and it was still possible to enter into the stipulatio duplae, provided you could persuade the seller to do so. Eventually the actio empti (action based on purchase) was available to obtain the same relief.
The guarantee against latent defects
As far as we know, in the mists of antiquity, whatever you bought or gained by barter, you received as is,4 unless you could persuade the seller to stipulate that there was nothing wrong with the thing, and that he would compensate you whatever if it appears to be incorrect. The seller was, however, liable for fraud. As the empire grew and became the centre of trade in the known world, the buyers became more prudent as they realised that the sellers were not always to be trusted. Besides, many of the sellers were foreigners, and Romans had a thorough distrust of everything and everyone non-Roman.
This particular guarantee also developed over a long period of time. Initially the buyer would investigate the merx, checking whether it was sound and in order. If it seemed to be, he would buy on the assumption that everything was fine, and of course if it was not, he could always recover his damages (i.e. the sale price) if he could prove fraud on the side of the seller. Later he would require the seller to stipulate that there was nothing wrong with the merx (or that certain things would not be wrong with it) and the natural development was of course to the point where the stipulation did not give rise to liability for defects the seller did not know about, and which he could not reasonably have been expected to know about.
Similar to the guarantee against eviction, it later became so common to require the stipulation, that it was regarded as incorporated into the agreement.5 Importantly, this guarantee was only aimed at those defects that weren’t obvious or ascertainable with a reasonable inspection. In due course, buyers also started taking sellers to task for what they said the attributes of the thing were, and it appeared that they were not being entirely truthful. As a result, the buyer could hold the seller liable for dicta et promissa (statements and promises) in respect of the thing’s qualities and attributes. The buyer could recover his damages in the event the thing turned out not be everything it was cracked up to be, unless of course it was mere puffing on the side of the seller, e.g. describing the most obviously ugly old crone imaginable in the entire slave market as a veritable Helen as far as her beauty was concerned. As far as we can ascertain, the stipulationes habere licere ac duplae were also available in the case of latent defects.
During republican times (510 – 29 BCE) a new development took place. The aediles curules (officials tasked with overseeing amongst other things the markets, roads and water supply in Rome, doing much the same in respect of these amenities as the praetor would in respect of the bigger picture) decided that, as a result of all the shenanigans sellers got up to in respect of selling things that were not up to the standards or promises they were supposed to be, in the sale of slaves (servi) or beasts of burden (iumenta) the seller was obliged to divulge any disease (morbus) or handicap (vitium) in the thing sold. In the case of slaves, the seller also had to inform the prospective buyer whether the slave tended to wander off on his or her own (erro), was a fugitive (fugutivus) or was under suspicion of some crime (noxum)6 which may give rise to liability on the part of subsequent owners of the slave.
The aediles in time made available two particular actions, being the actio redhibitoria and the actio quanti minoris. The former was used to obtain restitution, i.e. recovery of the price and return of the merx, while the latter was aimed at obtaining a price reduction in cases where the defect did not render the thing entirely unfit for the purpose it was bought. The a. redhibitoria had to instituted within six months after the sale, and the a. quanti minoris within one year.
These actions were later extended in their application, and later (by the time of Justinian) applied to all manner of goods sold. Eventually the a. empti was also used to obtain either restitution or price reduction. Despite this, the aedilitian actions are still used in some jurisdictions.
Pothier, a French commentator on the law, writes in his treatise on Sale that the manufacturer or creator of a thing, is always liable for consequential damages as a result of a latent defect in the thing, even if he was unaware of the existence of the defect. This, Pothier says, is because he made the thing, and is deemed to have knowledge of how it was made. This liability has also in Roman-Dutch law been extended to the franchised agent who sells goods on behalf of the manufacturer, the agent being deemed to have specialist knowledge of the thing he sells on behalf of the manufacturer. This has given rise to enormous awards being made by courts inter alia against companies that manufacture motorcars, where certain design shortcomings have caused people to suffer damages. In South Africa, this extension is generally referred to as “Pothier’s rule”.
1 See Good faith in contracting. The law of sale developed from the original stipulationes where the seller would formally promise to deliver the thing sold (res = thing, later merx = object of the sale, whence our word “merchant” = a person who deals in sellable items), and the buyer would formally promise to give the seller a sum of money. The two stipulationes in principle had nothing to do with each other and were capable of being individually executed independent of performance by the other party.
2 Although for the Romans, following a closed system of contract, they still had very specific requirements even for the consensual contracts.
3 Essentially what we would today call a “penalty clause”.
4 Whence the adage caveat emptor (= buyer, beware).
5 It would be wrong, however, to infer that the two guarantees developed simultaneously. It would be fair to assume, though, that they did not develop too far apart in time.
6 I.e. the slave had to be noxa solutum = free from suspicion of having committed crimes.