Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. IV.

Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.

Morison and Glen
v.
Forrester

Date: 23 January 1712
Case No. No 62.

A horse bought in public market was after wards found to have spavin and ring-bone, and offered back. Not having been upheld to be sound, repetition of the price was not decreed.

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One Wright, servant to Forrester of Braes, sells a horse in the market at Perth, to Morison and Glen for L. 6 Sterling in money, and a young mare valued at L. 24 Scots given of Boot. Morison after some days discovers the horse he had bought was affected with the ringbone and spaivy, and about two or three weeks after offers him back, and then pursues Forrester for repayment of the money, and returning the mare given in the change, and to take back his horse. Alleged, Non constat the horse had these distempers when sold, but might, by over riding, and other bad usage, contract these afterwards. 2do, It is denied he was upholden as a sound wholesome horse. 3tio, He was not offered back debito tempore. Answered, Offered to prove that he laboured under these diseases before, and at the time he was bought; and which you concealed. To the second, Wright actually upheld him. And 3tio, We offered him back as soon as we discovered his faults, and law has prefixed no set time. The Lords allowed either party a probation of the several points of fact founded on; and which coming in to be advised this day, it was contended for Morison pursuer, that the principle of all laws banish frauds and deceits from all bargains, but mainly from emption vendition, which is contractus optimæ fidei; and the Roman law has provided three remedies in such cases; the first is actio ex empto ad præstandum dolum, 1. 68. D. De contrah, empti. 1. 1. § 1. et 1. 13. D. De action. empti, where the machinations of sellers to circumvene ignorant buyers are prevented; and Ulpian says, If the seller knows the defects of the thing sold and conceals them, he underlies this actio empti; but he will be much more liable, if, when interrogated, he affirm the beast to be sound. The second is the actio redhibitoria ex edicto adilitio, whereby parties buying faulty wares, and induced by the seller's silence, would not have bought them if the faults had been opened and discovered to them, in that case they must take back the thing and restore the price with interest and damages. The third, is actio quanti minoris, to refund me in so far as it was less worth than truly was paid for it. Now by the probation it appears the horse was crooked, spavied, and ringboned when sold; so it cannot be pretended that he got these ex malo regimine afterwards; and that he was offered back within two or three weeks of the bargain, and that Wright said the horse was as whole as himself. Answered, You being horse-coupers, if one's eye be his merchant, much more must it be yours; and with us læsio ultra dimidium justi pretii, is not a ground to rescind a bargain, (as it did in the Roman law) else the commerce and free transmission of moveables would be mightily stopt and embarrassed. Neither is the upholding proved, but ex auditu only; and by the probation it appears there is a difference betwixt internal and external discases of horses and other cattle. If it be external and visible, the witnesses say, it must be offered back, within 48 hours; but if inward, 40 days is the customary period: Now the distempers here condescended on were such as were obvious to the eye, and the seller was not bound to receive him back after several weeks custody. The Lords minded the English custom used at Smithfield and other markets, that all horses sold are booked, and caution found called borgh and haimhald, (see Skene De verborum significatione) which not only imports they are leal come by and not stolen, but also theirs freedom from defects; but crooking is not a material one, seeing the pricking of a nail can make that. But we have not that English form. The Roman law gave 60 days, and the Lords thought 48 hours too short a time to be confined to. Some proposed that 20 days might be fixed as the time in which they must be offered back. But this was not determined at this time; for the Lords found the upholding the horse not proved, and so assoilzied from the repetition of the price. It ought not to be in the power of horse-coupers, when they have deceived an unwary buyer, then by their oaths to establish a custom so noxious to the lieges, if the horse be not offered back to them within two days, they are not bound to receive him. This were to confirm cheatry by a law; therefore the Lords were thinking to give a greater latitude of time, but had no occasion to determine it in this case But however to do horse-coupers equal justice, it must be always instructed the horse had these diseases at or before the bargain, and were not contracted after.

Fol. Dic. v. 2. p. 357. Fountainhall, v. 2. p. 710.