The rule of law in buying is, _the buyer must look out for himself_;
and if things are not what he supposed they were he has no rightful
claim against the seller. The maxim of the law is, "_Let the purchaser
beware_"--let him take care of himself. The rule of the Roman law was
different. It was the duty of the seller to tell the buyer of all the
defects known by him in the thing sold, and if he did not he was
responsible for any loss caused by any defect or imperfection found
after purchasing that was known by the seller before.
The modern principle may be looked at from two points of view. First,
_the seller need not make known any defects which the buyer can find
out himself_. Suppose a man is thinking of buying a horse that is
(though he does not know it) blind in one eye. The law says that the
buyer ought to be able to see such a defect quite as readily as the
seller, and if he does not the fault is his own. Blindness in one eye
is quite as easily seen as would be the lack of an ear or tail. And
this principle applies very generally in all purchases. It covers all
visible defects. Nor can any one find much fault with this rule,
because the buyer generally has as good eyesight as the seller, and if
he takes pains, as he should, he is able to discover all ordinary
defects. Furthermore, the buyer doubtless often knows quite as much
about the things he purchases as the seller.
But the courts also say that it applies to other defects. Suppose a
horse has the heaves or the rheumatism, which is known to the seller
but of which the buyer has no knowledge whatever. The seller is not
obliged to make known this defect to the buyer, and if he is silly
enough to purchase on his own wisdom he must abide by the
consequences. If he does inquire and is deceived, that is another
thing. But if he asks no questions, or the seller does not deceive him
in any way, the seller is not responsible for defects known by him at
the time of the sale. This also is a well-understood rule.
_The seller_, we repeat, _must not deceive the buyer_. In one of the
well-known cases a man owned a ship that he was desirous of selling.
She was unsound in several places and the seller put her in such a
position that her defects could not be readily found out. He did this
for the purpose of deceiving the buyer and succeeded. When the buyer
learned how he had been tricked he began a legal proceeding to get
back a part of the money that he had paid, and won his case. And
rightfully, too, for the reason that the seller had deceived him,
which he had no right to do.
Another case may be stated of a man who was desirous of purchasing a
picture, supposing that it was once in the collection of an eminent
man. The seller knew perfectly well that the picture did not come from
that collection and that the buyer was acting under a delusion. He did
not say that the picture had belonged to the collection or had not; he
was silent, although he knew that the buyer would not purchase it if
he knew the truth about its former ownership. For some reason or other
the buyer did not make any inquiry of the seller, or if he did was not
told. But after purchasing the picture the buyer learned that he was
mistaken and that the seller knew this at the time of making the sale.
He sought to recover the money he had paid and succeeded, the court
saying that a fraud had been practised upon him; that it was the duty
of the seller, knowing what was passing in the mind of the buyer, to
have told him the truth about the former ownership of the picture.
It will be seen, therefore, that _the seller must not deceive the
buyer in any way or practise any fraud on him_; if he does he will be
responsible for the loss or injury befalling the other.
What, then, ought a buyer to do in purchasing a horse, for example, in
order to guard himself against the unwelcome discovery of disease or
other defect? Clearly, _he ought to require the seller to give him a
warranty_. A proper way is, if the transaction be an important one, to
have the warranty in writing and signed by the seller. It need not be
very long; a few words usually are enough.
There is a very important difference that every one ought to
understand between words that are spoken at a sale, which are mere
representations, and words that form a warranty of the thing sold. If
I should go into a store to buy a piece of flannel, and ask the
salesman if it was all wool, and he should assure me that it was, and
I, ignorant of the quality of the material, and desirous of buying a
piece of all-wool flannel, should say to him: "I know nothing about
it; I rely entirely on your statement," and he should say: "It is all
right; all wool, and no cotton," his words would be a warranty, and if
the flannel proved to be made partly of straw or cotton, or something
besides wool, I could sue the seller on his warranty, and recover for
the loss I had suffered, whatever that might be. But suppose I were a
flannel manufacturer myself, and knew at the time he was saying this
to me that the flannel was partly cotton; in short, knew a great deal
more about it than he did, and was not deceived in any way by what he
said, his words would not be a warranty, because my action in buying
the flannel would not be influenced by them.
What test, then, is to be applied? Evidently whether or not the buyer
acts on the words spoken and is deceived by them. If, relying on them,
he buys and is deceived or misled to his loss or injury, then the
words will be taken as a warranty and protect the buyer. If, on the
other hand, he is not deceived by what is told him, and he buys on his
own knowledge and judgment, then the words are not a warranty.
One or two other points may be briefly noticed. The law says that _the
seller always warrants the title to the thing sold_--in other words,
that he is the owner. He may not say one word about the matter, but
the law implies that he is the owner and would not sell a thing that
did not belong to him. If he should prove not to be the owner, the
buyer could recover for his loss.
_Another point about adulterations._ The common law does not regard an
article as adulterated, giving the buyer the right to claim something
back, unless it has been materially changed by the foreign substance.
All, or nearly all, of the States have made statutes within recent
years, or re-enacted old ones, holding sellers strictly responsible
for the quality, especially of provisions, sold. These statutes
generally require the seller to sell absolutely pure articles, and he
cannot shield himself by saying that he was ignorant and innocent of
their nature if they proved to be other than pure articles. If a
grocer should sell cotton-seed oil for olive oil, even though doing so
ignorantly, without any intention to deceive, he would nevertheless be
held liable under the statutes that now exist in most of the States;
and public opinion strongly favours the strict execution of these
statutes.