The warranty for latent defects in the law of sale

Abstract

It seems that one cannot query James Northcote's dictum that "man only works his way to excellence by being imprisoned in defects" (1). Indeed defects are an attribute not only of man but even more of the worldly things that surround him. And it was probably mindful of this inevitable truth that the legislator has from early times sought to establish rules to protect the buyer from the harmful consequences which can flow from the purchase of defective things. Thus the Gurule Aediles in Roman times who were officers charged with the police of the city and the control of the market, issued rules on the sale of slaves and beasts of burden which could be suffering from latent defects, and the rules introduced by them in the law of sale have left their imprint on those modern systems of law which have inherited the Roman tradition. Indeed the Institute of the warranty for latent defects has sustained very few changes during its evolution from the "primative" Roman Law concept to that prevailing under these modern systems of Civil Law. One may ask the reason behind this lack of change; in fact what is the reason for which so many peoples who had diverse customs and needs, have adopted the same norms and this with a considerable a.mount of uniformity? The answer must be sought presumably in the reasonableness of these norms and indeed it is still a marvellous thing to observe how these Roman Law norm.s passing from npolic e regulationsn to Private Law proper took so hard a root as to "impede" later legislators from. changing them.