§ V. On the Obligations of the Seller

Besides the obligation of observing the just price, there are many obligations incumbent on the seller, of which some pertain to the manifestation of defects of the merchandise; others to handing over (delivery); and others to assurance (warranty).

I. On the obligation of the seller to manifest the vices or defects of the merchandise.

975. • The seller, relatively to defects of merchandise, is generally obliged cautiously to avoid every fraud by which the buyer would be unjustly deceived. But the seller can commit fraud relatively to the defects of his merchandise in two ways, namely: positively or negatively.

a) He commits fraud positively when he deceitfully hides the defects of the merchandise, and that either by words or by deeds. By words indeed, if he falsely asserts that his merchandise is entirely without a defect of some moment, with which nevertheless it is in reality infected, for example if he asserts that a horse is very tame, while in reality it is furious; but not if he merely extols his merchandise in general according to the usage common to merchants, by which buyers are regularly not deceived, as we have already observed above in n. 964. By deeds, if by art, which they call mangonium, he brings it about that his merchandise appears notably better than it really is, for example if he puts much more selected grain on the top of the sack, as if the whole is of the best quality; if he pours a small drop of mercury into the ears of a slower horse, so that it appears much more noble and lively; if he seeks a corner and darkness, lest the defect of his merchandise be detected; if he sprinkles wool with water, so that it becomes of greater weight, etc. Yet all these things, as Billuart rightly notes, must be accepted with this moderation: unless such an artful manner of acting is common and sufficiently known to buyers, as it is known to all that merchants are accustomed to give their goods some slight coloring and to place the better things on the outside; for in that hypothesis buyers again are not properly deceived.

b) The seller commits fraud negatively when he does not manifest the vices of the merchandise known by him, whenever he is held to manifest them. But whenever he is held to manifest those vices, this is a rather difficult question; for its solution let there be the following brief treatment:

976. On the vices of his merchandise known by him which must be manifested by the seller. - The vices of merchandise can be of a threefold kind:

1° A vice concerning the substance, i.e. concerning the thing itself which is sold, so that this is altogether diverse from that which of itself and principally the buyer intends, for example if glass is sold for a gem, brass for gold, water for wine, etc.

Yet carefully observe here that not every physical diversity constitutes a vice concerning the substance in purchase-sale; for in this contract, as was said above in n. 961, the thing to be sold is considered not so much in its physical being as in its usual being; and therefore it not rarely happens that two things, diverse in physical substance, are not judged substantially diverse in commerce, whenever they have the same uses and the same effects. Wherefore, when we treat of a vice concerning the substance, we do not take substance in the absolute sense, but in the relative sense, namely: in order to human use and the end for which it is bought.

2° A vice concerning quantity, i.e. concerning number, weight, or measure, for example if a cask of wine which contains only forty measures is sold for forty-five.

3° A vice concerning quality, i.e. concerning an accident affecting the use and utility of the thing more or less, for example if a slow horse is sold as fast, new wine as old, a diseased sheep as healthy, etc.

Now indeed, for this threefold kind of vices, a threefold distinct resolution must also be given:

977. Resolution I. On a vice concerning substance. - If the vendible thing labors under a vice concerning substance, without doubt the seller must manifest that vice to the buyer; because such a vice, unknown by the buyer, altogether impedes his consent, required for the validity of the contract. Whence the seller who sells to another a thing substantially vitiated without sufficiently detecting that vice acts fraudulently and from justice is held, at the will of the deceived buyer, either to rescind the contract, or at least to restore the excess of the price, and moreover to compensate the damages following to the buyer from his deception, provided they were foreseen to some extent. - But for the right understanding of this rule it is again permitted to warn that in it there is question only of a thing substantially vitiated relatively to human use and the end for which it is bought; and hence the aforesaid rule does not seem able to be applied to the case in which the seller hands over, as they say, quid pro quo, i.e. for one thing another equally or almost equally useful thing, for example to the case in which a pharmacist, instead of the prescribed medicine which he does not have at hand, hands over another medicine of the same utility. Yet observe with St. Alphonsus¹ that the seller, in order in the case to be excused from the stain of injustice, must a) be certain, not doubtful, concerning such equality of utility, and b) diminish the price insofar as the thing handed over perhaps is worth less.

978. Resolution II. On a vice concerning quantity. - If the vendible thing labors under a vice concerning quantity, the seller is again held to manifest it to the buyer, at least by diminishing the price for the defect of quantity. For although such a contract of itself is not invalid, provided the consent concerning the substance remains safe; nor even can it of itself be rescinded at the will of the buyer, unless deceit gave the true cause of contracting; nevertheless this contract is certainly illicit and unjust by reason of the deceitful excess in the price, which therefore must be restored to the buyer. Whence it is said in the book of Deuteronomy:² You shall not have in the bag diverse weights, a greater and a lesser, nor shall there be in your house a measure greater and lesser. ... For the Lord abominates him who does these things, and detests every injustice. - Yet probably it will be permitted to except from the proposed resolution the case in which the seller, using right measure, cannot obtain the just price on account of the injustice of the legal tax,¹ or on account of an unjust monopoly of buyers agreeing among themselves not to offer the just price. For in this case, according to the opinion of many, he can licitly use a measure defective to the extent in which it reaches the price, yet only the lowest price, and thus justly free himself from unjust oppression. St. Alphonsus.²

979. Resolution III. On a vice concerning quality. - If the vendible thing labors under a vice concerning quality, first, generally, we think it must be resolved: the seller is obliged from justice to manifest that vice when the buyer seriously questions him concerning such a vice, and thus sufficiently shows that he either does not wish at all to buy the thing infected with such a vice, or at least not at so great a price; for in this hypothesis the vice concerning quality would redound into the substance, and would remove the consent of the buyer either in whole or at least in so much; so that the seller, by concealing the truth in the case, is guilty of fraud, and must undergo the consequences of this fraud. - Nevertheless, if the buyer were to question only in general, no obligation of justice seems to be present for indicating vices of lighter moment; for such a general question is not accepted in so much rigor, since scarcely any thing exists which is plainly immune from every defect. - Note. On the mode by which a seller obliged to manifestation of a vice can satisfy this obligation, see below.

980. • But supposing that the buyer does not question the seller in any way; before all things it is necessary to attend whether the vice not asked about is patent or occult; and if occult, whether it must be judged notable or not notable; and with these things attended to it will be possible to resolve:

981. A) On a patent vice. - If the vice is patent, so that it can generally be known by anyone with common diligence, for example if a horse is one-eyed, the seller, not questioned, is regularly not held to indicate it to the buyer, at least from justice; provided he does not exceed the just price of the thing. For where the thing itself speaks, there is no need of the voice of the seller; and the buyer, if by his negligence perhaps he does not advert to such a vice, must impute this to himself.

I said: 1° regularly he is not held; for accidentally the seller, even from justice, must detect a vice patent of itself, namely when it is certainly clear to him that the buyer, on account of manifest inexperience, dullness, etc., morally speaking, cannot advert to that vice; because then the vice is judged occult respectively to such a buyer, and therefore to be manifested whenever occult vices, as will soon be said, must be manifested.

I said: 2° regularly he is not held at least from justice; for sometimes charity will demand that the seller, if he can without grave inconvenience, warn the negligent or imprudent buyer, at least after the contract, namely if the seller sees that damage or peril from the thing bought is imminent for the buyer by reason of his negligence.

982. B) On an occult notable or redhibitory vice. - If the vice is occult and at the same time notable, i.e. if a vice not knowable by common diligence renders the vendible thing harmful, useless, or notably less useful for the end for which, in the present circumstances, it is commonly accustomed to be bought, the seller must open it from justice; for otherwise the buyer is not judged to have consented to the purchase or at least to the price of the purchase. - Whence sellers are guilty of malicious fraud, and are bound by the obligation of restitution, who sell to another a thing laboring under a vice here and now occult, by which its use and service is impeded, for example those who sell to another a horse here and now latently infected with the vice of stubbornness (stubbornness); who sell an ox secretly already laboring under pulmonary consumption, or a sheep latently scabby, or a secretly rancid pig; likewise those who sell garments or shoes apparently good, but made from burnt cloth or leather, and therefore unfit for sufficiently durable use; likewise those who sell medicines harmful or useless from a latent defect, etc.

But note well the words printed above in italics: for the end for which, in the present circumstances, it is commonly accustomed to be bought; for if the thing is sufficiently apt for usual ends of this kind, the seller is not held of himself to inquire whether perhaps the buyer has another special or extraordinary end, for which the thing would be harmful or unfit; but on the contrary he rightly presumes the usual ends, unless another end of the buyer becomes manifest to him either explicitly, or at least implicitly from the circumstances of things. Whence, selling at a just price an ox excellent for slaughter, but unfit for the plow, he is not held to indicate to the buyer that the ox is unfit for plowing, except only the case in which it would be clear to the seller from the express words of the buyer or from his known condition that he seeks the ox solely for the end of plowing; for then the seller, by keeping silent about the unfitness of the ox, does not seem excused from every injury; although that injury is not reputed grave where the buyer can easily and without inconvenience or damage accommodate the ox to another use, or resell it to others at an equal price. - But that sometimes, at least after the contract, there can be given some obligation of charity, is sufficiently clear from the things said above in n. 981 at the end, and it will again be clear from the things to be said in the following resolution:

983. C) On an occult, non-notable, or non-redhibitory vice. - If the vice is occult, but not notable, so that it does not render the thing harmful or notably less apt for usual use, for example if a sheep labors under some contemptible little fever; if garments or shoes are made from cloth or leather somewhat weaker, yet sufficiently durable; the seller, not questioned, is bound by no law of justice to manifestation of such a vice, even a most occult one, provided he observes a proportionate price. For this seems abundantly clear from the common use and practice even of the fearful, concerning which buyers reasonably cannot be unwilling; since otherwise all commerce among good citizens would be overturned to the detriment of society.

Nevertheless, if the seller accidentally were probably to suspect that the buyer, ignorant of the vice, wishes to keep the thing longer than it can be kept, or wishes to resell it to a third party for more than it is worth, then the seller, although not questioned, would have to warn the buyer, at least from charity, after the contract, to prevent damage or peril otherwise likely to be imminent for him or for others. And thus, for example, as de Lugo notes, if you sell wine which indeed cannot be kept long, but nevertheless in that state which it still has is commonly sold at such a price for daily use; nor does the buyer show that he seeks the wine for keeping, but, having tasted the wine beforehand, buys it; you do not seem obliged from justice to state the peril. But if you probably feared that the buyer perhaps wishes to keep it longer, then it will be necessary from charity to warn the buyer through yourself or through another, so that he use the wine shortly, at least if you can without grave damage to yourself.

984. Questions. - Query 1° In what mode can a seller, obliged from justice to manifest the vices of merchandise, satisfy this obligation?

Resp. He can satisfy this obligation not only if he sincerely and by name assigns the vices of the merchandise; but also generally, a) if he sells his goods in such circumstances that their defectiveness ought of itself to be understood or presumed by the buyer, for example: if he sells as a dealer in old things; and b) if he simply and candidly asserts that he is unwilling to render an account concerning any vice whatever, but sells the thing as it is; for by a protestation of this kind the seller regularly sufficiently warns the buyer to look out for himself. And hence deservedly, from the opinion of St. Alphonsus,¹ the custom is tolerated, which is in force somewhere, especially at great fairs, that animals are sold thus, even if the vices are most occult; for, to remove lawsuits and to promote the common good, this is sufficiently made honorable by custom; provided (which must cautiously be kept before the eyes) the thing is not sold beyond the just price, at least the highest, with the account of that occult vice having been had.

Note. - On this occasion it deserves also to be observed what St. Alphonsus² warns concerning the justice of contracts in general, namely: "If some contracts are found, by use through a long time in some region; ... the confessor ought not to condemn them, unless first all the circumstances have been inspected; since at first sight many contracts appear usurious or unjust; but afterwards, the matter having been weighed better, they are not to be held as such."

985. • Query 2° What must be resolved concerning merchandise with which another cheaper merchandise has been mixed?

Resp. Attending to the various opinions which are found among Authors concerning this matter, indeed in practice I would not dare to condemn the seller of the sin of injustice and oblige him to restitution who makes mixtures commonly accustomed to be made, and asks for merchandise so mixed the price commonly accustomed to be exacted. Yet such mixtures or corruptions are not to be excused which render things notably worse for the end to which they are destined, as would happen if things by reason of mixture no longer retain that goodness with which buyers of such things are accustomed, or, on account of universal custom, almost must be content. Besides, it is necessary to confess that any commixture, even of itself not strictly unjust, nevertheless is commonly illicit, as being opposed to good faith and the security of commerce; unless the mixture is made from a reasonable cause, for example: so that a just price may be obtained, which otherwise could not be obtained on account of the extraordinary goodness of the merchandise, on account of the unjust taxation of the Magistrate, on account of an unjust conspiracy of buyers, or on account of common use.

II. On the obligation of the seller as to the handing over of the thing sold.

986. • The seller by every Law is obliged to the handing over of the thing sold; unless perhaps that obligation has ceased from a legitimate cause, for example because the buyer does not pay the price, or because after the purchase he has made cession of goods.

By our law concerning it these things almost are to be observed.

I. If it is a question of immovables, a solemn contract is required (a deed).

II. If it is a question of movables a) "A delivery to the carrier, or to the agent of the buyer, is a delivery to the buyer himself." b) "As to the time of delivery and payment, the rule is, that when no time is agreed upon, they are concurrent acts to be performed forthwith." c) "When no place of delivery is specified in the contract, the law implies that it is the place where the article is at the time of sale."¹

III. On the obligation of the seller as to the assurance of the thing sold (warranty).

Note. - What we are going to say concerning assurance, we shall say resting only on natural law, since the laws of the various States concerning this matter differ much among themselves and are changed day by day.

987. • Every seller of himself is judged to sell and hand over only such a thing as can be safely possessed by the buyer and applied to the destined use; and therefore also every seller of himself, unless the contrary has been stipulated, is held to assure the thing sold to the buyer (to warrant), i.e. to provide that the buyer can possess the thing bought quietly, and enjoy it.

But since tranquil possession of the thing is taken away by eviction, and enjoyment of the thing by vices of such a kind as make the thing altogether or at least notably unfit for the destined end (which vices in Law are called redhibitory vices), hence a twofold assurance is distinguished, owed by the seller, namely a) assurance against eviction of the thing (warranty of the title), and b) assurance against redhibitory vices of the thing (warranty of the quality).

With these things posited generally, let us now note a few things concerning each species of assurance singly.

A. On assurance against eviction.

988. • Query 1° What is eviction?

Resp. Eviction is the legitimate disturbance of the buyer in the possession of the thing which he bought; by force of which the buyer must return the thing bought by him, either totally or partially, to some third party, who namely proves certainly that it, either totally or partially, is his, or at least that it is burdened by his real right, for example, the right of hypothec; and who therefore legitimately seeks back what is his, standing in the principle of natural law: the thing cries out to its owner, or in addition standing in the sentence of the judge, according to the terms of civil law decreeing eviction. E.g. if Titius bought from Caius, and, handing over having been made, now possesses some house, which afterwards Jacob validly proves not to have pertained to Caius, but truly to be his own, and which therefore he legitimately reclaims from Titius; then there is eviction with respect to Titius, who must return that house to Jacob legitimately reclaiming it, and thus is justly despoiled of the thing bought by him, or, as Jurists say, is evicted of the thing bought by him.

But from the given description of eviction it is clear that it can not unsuitably be distinguished a) into total and partial, according as the buyer is evicted of the whole thing or only of part of it; and b) into natural and juridico-civil, according as it is founded in the law of nature alone, or moreover in civil law applied by the judge.

989. • Query 2° To what is the seller of himself (i.e. another stipulation excluded) held from the very law of nature toward an innocent buyer in the case of eviction?

Resp. with a distinction: either the seller was of bad faith, i.e. knew sufficiently that the thing was subject to eviction and concealed this from the buyer; or he was of good faith, i.e. wholly ignored the danger of eviction.

If the first, namely if he was of bad faith, the seller from the law of nature, and therefore in the forum of conscience, is held to return to the evicted buyer the price paid by him, and to keep him altogether unharmed; because he truly deceived the buyer and must be called simply an unjust damager. - But if the eviction was only partial, the same seller owes to the buyer restitution of the price pro rata, and compensation of the damages; indeed he must, at the will of the buyer, rescind the contract whenever the part of which the buyer is evicted is so notable that of itself it could be presumed that the buyer would not have entered the contract without such a part; because then the deceit of the seller truly gave cause to the contract.

If the second, namely if he was of good faith, the seller also from the law of nature is held to return to the evicted buyer the price paid, either in whole or in part, according as the eviction is entire or partial; provided he still has that price in itself or in the equivalent; but besides this from the law of nature he seems obliged in conscience to nothing else; unless perhaps, in the case of partial eviction, to rescinding the contract, when it is clear of itself that the buyer, with attention to the notable part of which he is now evicted, would not have wished to enter the contract if he had known the peril of such eviction; for then his consent was altogether founded in error. - We said that the seller is held to return the price accepted, provided he still has it in itself or in the equivalent, or, as others say, understanding the same thing: insofar as he was made richer from it; for if the seller of good faith perhaps spent that price in gambling or gifts, so that from it he was not made richer (take this as: if otherwise he would not have made such expenses), then neither will he be able to be obliged to restitution of the price from the law of nature, as is clear from the principles previously set forth concerning the obligations of a possessor of good faith.

990. • Query 3° What must be established for the case in which the seller in good faith stipulated that he does not assure the thing?

Resp. He is held to return the price insofar as he still has it in itself or in the equivalent.

Note. - If by the malice, says St. Alphonsus,¹ or the fault of the judge, or by the force of another, or by the negligence of the buyer the thing is evicted, the seller is held to nothing; for fortuitous peril pertains to the buyer.

B. On assurance against redhibitory vices of the thing.

991. • That every confusion may be prevented, it is permitted here in advance to warn that the things now to be handed down concerning assurance against redhibitory vices are to be considered simply as a supplement to the treatment set forth above, n. 975 seq., concerning the manifestation by the seller of the vices of his merchandise. For since in that treatment there was discussion only of the obligation which, from the law of nature, is incumbent on the seller relatively to vices of the thing known by him, and consequently of his obligation toward the buyer, if he did not manifest vices of this kind which had to be manifested, and therefore is to be judged to have acted fraudulently and in bad faith; hence it is clear of itself that certain things still remain to be said concerning the obligation which from the law of nature is incumbent on the seller, in the case in which he himself ignored the vices of the thing, and therefore ought to be judged to have sold sincerely and in good faith.

992. • Query. To what is a seller OF GOOD FAITH held toward the buyer from the law of nature as to vices of the thing sold?

Resp. Since such a seller has committed no deceit, the solution of the question must be sought from the doctrine, handed down concerning contracts in general, around error. Therefore, that doctrine supposed, it can be established:

1° If the vice is concerning substance, the seller of good faith from the law of nature must rescind the contract and return the price accepted, insofar as he still has it in itself or in the equivalent.

2° If the vice is concerning quantity, he must, for the defect of quantity, return part of the price, insofar as he still has it in itself or in the equivalent.

3° If the vice is concerning quality truly notable, according to the diversity of the error in which the buyer was, he must either rescind the contract and return the price, insofar, etc., or at least reduce the contract to equality, returning pro rata part of the price, insofar, etc. Yet here the case seems to be excepted in which the seller of good faith stipulated the contrary and accepted a price proportioned to this stipulation; for then the contract is rather aleatory.