vi. contract of sale 3

Question 1

principle of eviction

Answer 1

= seller’s performance has not yet been defective as long as the buyer has peaceable possession of the purchased object

Question 2

eviction

Answer 2

= third party claims a right in rem in the object of purchase and successfully enforces by means of an ACTIO IN REM

Question 3

warranty in case of a mancipation sale

Answer 3

• seller is obliged to assist the buyer when third party makes a claim
• if third party is successful, buyer can bring an ACTIO AUCTORITATIS against the seller for the DUPLUM of the purchase price
• if buyer did not ask seller to assist, seller can counter the ACTIO AUCTORITATIS with the objections he could have raised against the third party

Question 4

STIPULATIO DUPLAE

Answer 4

• seller promises to buyer by means of stipulation that he will not be evicted from the object
• if yes, then he usually promises to pay DUPLUM, which can be enforced by a CONDICTIO
• if not agreed on any amount, then only SIMPLUM
• in certain specific contracts, seller is obliged to make this stipulation, and if he does not, ha can be sued by ACTIO EMPTI

Question 5

warranty of title regardless of eviction

Answer 5

1. seller knows he is not authorised to sell the goods (this claim is based on bona fides)
2. stipulated duty to procure ownership
3. peaceable possession EX ALIA CAUSA: when unauthorised seller becomes legal successor of owner: buyer is granted ACTIO EMPTI baed on bona fides (but he cannot be sued on ground of a stipulation duplum as no eviction has taken place)

Question 6

oral assurances and promises to quality by stipulation

Answer 6

DICTA ET PROMISSA

Question 7

CAVEAT EMPTOR

Answer 7

’ let the buyer beware ‘
= if the defects are apparent if they buyer does not inspect them carefully enough and thus does not notice them, this does not give rise to a warranty claim

Question 8

edict of curule aediles

Answer 8

= concerns the purchase of slaves, draft or pack animals (IUMENTA) or herd animals (PECORA), and obliges the seller to disclose certain faults:
1. MORBUS (disease)
2. VITIA
- FUGITIVUS (runaway)
- ERRO (loiterer)
- NOXA
→ seller has to give warranty regardless whether he was aware of the defect

Question 9

aedilitian remedies

Answer 9

1. ACTIO QUANTI MINORIS — action for decrease of value (within 12 months)
2. ACTIO REDHIBITORIA — action for voiding the sale

Question 10

ACTIO QUANTI MINORIS

Answer 10

• within 12 months
• reclaim the amount that he would have paid less had he known the defect

Question 11

ACTIO REDHIBITORIA

Answer 11

• within 6 months
• unilateral right to rescind the contract EX TUNC and demand restitution of performances
• consequential losses caused by defect might be taken into consideration
• in principle, restitution is prerequisite of bringing the action: eg. what if object has died?
  → buyer at fault: compensation of the value of the slave
  → buyer not at fault: no compensation

Question 12

MORTUUS REDHIBITUR

Answer 12

‘dead slave is object to redhibition’

Question 13

ACTIO EMPTI as an action for warranty

Answer 13

= if sale did not concern salves pack, draft or herd animals
- analogy to edicts based on bona fides: also reduction of price or recession of contract
- consequential losses are not covered, only if seller breached bona fides
- warranty also for DICTA ET PROMISSA

Question 14

consequential loss caused by defect

Answer 14

= buyer incurs damage to his other assets because of the defect. In contrast to warranty, this claim is mostly fault-based.