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[67]
With this verdict he established the principle that1
it was essential to good faith that any defect known
to the vendor must be made known to the purchaser.
If his decision was right, our grain-dealer and the
vendor of the unsanitary house did not do right to
suppress the facts in those cases. But the civil code
cannot be made to include all cases where facts are
thus suppressed; but those cases which it does
include are summarily dealt with. Marcus Marius
Gratidianus, a kinsman of ours, sold back to Gaius
Sergius Orata the house which he himself had
bought a few years before from that same Orata. It
was subject to an encumbrance, but Marius had said
nothing about this fact in stating the terms of sale.
The case was carried to the courts. Crassus was
counsel for Orata; Antonius was retained by Gratidianus. Crassus pleaded the letter of the law that
“the vendor was bound to make good the defect,
for he had not declared it, although he was aware of
it”; Antonius laid stress upon the equity of the case,
pleading that, “inasmuch as the defect in question
had not been unknown to Sergius (for it was the
[p. 339]
same house that he had sold to Marius), no declaration of it was needed, and in purchasing it back he
had not been imposed upon, for he knew to what
legal liability his purchase was subject.”
1 Scope of Cato's decision.
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