Question X: Whether the seller is bound to disclose a grave defect of the thing

I ASSERT that the seller is held to reveal a grave defect of the thing known to himself; otherwise he is held to all damage, even resulting; for instance, if he gives a diseased sheep which infects the flock. l. Iulian. ff. de act. empt. et l. 1. C. de aedilit. says D. Thom. 2. 2. quaest. 77. art. 3. D. Bonan. in speculo animae, cap. 2. §. secundus ramus principalis, Molin. t. 2. disp. 353. Nauar. cap. 23. num. 89. Medin. C. de Restit. quaest. 34. Tanner. disp. 4. quaest. 7. num. 56. Fagund. de contract. l. 5. cap. 38. Baldus, v. Venditio, num. 14. and the rest with these; and Diana Tract. de contr. after D. Ambr. l. 1. de offi.

But if a hidden grave defect gave the buyer cause for the contract, which knowing it he would not have entered, the contract is void, and there is given to him the redhibitory action for taking back his price, the thing being returned: l. 1. et l. si sciendum, 19. ff. de aedilit. edicto, which action lasts for six months, l. si tam: n. 4. vers. Non nocebit l. Per sex menses, ff. eodem. If he has not used it within those six months, he can within another half-year bring the action of estimation, which lasts for a year, l. si tamen cit. The time of both actions begins from the day of the buyer's knowledge.

But if ignorance of the defect does not give cause to the contract, but falls only into this, that the buyer would still have bought, even at a lesser price, the contract is valid, as D. Anton. says, 2. p. t. 1. cap. 17. §. 6. Caiet. loc. cit. D. Thom. Sotus l. 6. de iust. quaest. 3. art. 2. Less. l. 2. cap. 7. Fagund. num. 10. Baldaeus num. 14. Yet the seller is held to give back the greater amount. The same says num. 15. if the defect is not grave. But the buyer is to be warned not to resell it dear in turn.

SOME ADD, however, that if the buyer, trusting his own judgment, chooses some one thing out of many, asking nothing except about the price, the seller does not sin against justice even if he does not disclose the hidden defect, provided he does not sell above the just price, but deducts from the price an estimate of the defect. So D. Thom. art. 2. and 3. Sotus l. 6. quaest. 3. art. 2. Antonin. 2. p. tit. 1. cap. 14. §. 6. Less. t. 1. de Iustitia l. 2. cap. 21. num. 91. dubit. 11. Molina disp. 352. Ludou. Lopes 2. p. Instruct. consc. cap. 42. Tanner. num. 59. — provided, however, the seller does not cover the defect by deceit, mixing that thing with other excellent ones.

But if the defect is patent and manifest, in the external forum no action is given against the seller, unless the buyer is defrauded beyond half the just price. It is gathered from Leg. 1. §. si intelligatur. And Leg. si tamen §. si quis, ff. de aedilit. edict. See Fagundez num. 23.

In the internal forum, however, if the price be equal, he is held to nothing. So D. Thom. quaest. 77. art. 3. Yet if the seller perceives that the buyer is ignorant of the defect, he is held to warn him, by the common opinion with Molina disp. 353. But D. Thom. with others holds the opposite, nor does Tannerus refuse it, num. 62.

For further understanding, note: when someone sells or buys beyond half the just price, there is given in the external forum an action against him who commits the injustice, and he is bound either to restore the excess or defect of price, or to have the contract rescinded, l. 1. C. de rescindenda vendit. cap. cum dilecti, et cap. cum causa de emptione et venditione. Moreover it is a mortal sin to violate the mean of the just price, in which justice consists, namely by exceeding the highest in selling, and by diminishing below the lowest in buying. The reason is, because each departs from the mean in which the virtue of justice consists; otherwise even fraudulent measures would be licit against that, Deuter. 29. Thou shalt not have diverse weights in thy sack, as the holy Doctor infers in speculo animae, cap. 2.

I CONCLUDE as a general rule that in every sale there is to be deducted as much as the defect of the thing itself is worth; otherwise there will be injustice, as Caspens. notes, sect. 10. adding that the seller can keep a merely negative silence, demanding, however, only the just price, if he cannot find a just price for his good elsewhere. And this is true even if he knew the buyer would not have bought, had he known the defect, and so bought involuntarily; nor would he act against this, in rebus. §. Item, qui sciens, ff. commodati, statuentem, that the seller reveal the hidden defects of the thing; otherwise an action is granted against him.

He says this is the COMMON opinion; for if we wished to make such contracts invalid, innumerable lawsuits and dispensations would arise, which are demanded in this way even if they would be invalid without falsehood, since some things are tacitly not to be expressed by law, which, if expressed, would not be granted. It is the same in donations, almsgivings, legacies, testaments, elections, presentations, and other things of this kind. Therefore otherwise almost nothing in human dealings would ever be firm, nothing ratified, as Valentia says, quaest. 20. p. 4. and innumerable lawsuits would boil up to void purchases, to the great inconvenience and detriment of the Republic.

THEREFORE he answers the opposite reason thus: that a contract of this kind is voluntary, unless the buyer was deceived simply. But this is not true, as I said.

On that law, Molina says, disp. 392., it is to be understood when the defect is grave, and a harmful and less useful thing is sold. In this sense I do not refute Caspensem, as I said.

On the other hand, even the buyer of a gem from a peasant who does not know it, ought to buy at the just price, not cheaply, as Tanner. warns, num. 67. and Molina disp. 253. num. 12. Yet that a field can be bought, in which I know there is a treasure, at the common price, they teach with D. Thom. quaest. 66. art. 5. ad 2. Valentia quaest. 20. p. 4. Sù under the word emptio, Tanner. num. 66.