Liability for eviction and latent defects in the roman law of sale: stipulatio simplae and exclusion of rescission

Abstract

Classical Roman Law already knew the distinction between liability for eviction and latent defects, which had independent foundations and did not follow the same logic. The liability for eviction arose from the celebration of a stipulatio specifically for this purpose, whereas the liability for latent defects was foreseen in the Ediles Curules Edict for market regulation, in form of the actiones redhibitoria and quanti minoris. Notwithstanding, these two plans seem to intersect in the curious fragment D. 21, 1, 48, 8 of Pomponius, which, contrary to what suggests the prevailing opinion, contains a hypothesis of interconnection between the two sides of the vendor’s liability. According to him, if the liability for eviction was reduced (i.e. when stipulatio simplae was celebrated instead of the usual duplae, wherein the so called “venditio simplaria” consisted), the silence of the parties regarding liability for latent defects would lead to a presumption of its exclusion. This reading of the fragment finds support not only in a grammatical analysis of its text (focused mainly on the interesting word “simplaria”, that occurs in no other classical Latin document whatsoever), but also in several legal sources related to the subject, specially the Egyptian papyrus P. Cair. Preis. 1, where the presumption mentioned by Pomponius is apparently applied by a lawyer in a real case.