Freeman

ARTICLE

Caveat Emptor

JANUARY 01, 1968 by GEORGE WINDER

Mr. Winder, formerly a Solicitor of the Su­preme Court in New Zealand, is now farming in England. He has written widely on law, agriculture, and economics.

"Caveat emptor" is a principle of law older than Christianity. It came to us from ancient Rome and must have been in common use long before Justinian prepared his fa­mous code.

I first realized its importance many years ago in Australia when I heard it expounded by a country Magistrate. It seemed a long way from Rome to that tiny, sun-baked town in the Australian back coun­try; but the Magistrate decided the case and quoted the same Latin tag with the same confidence his counterpart might have shown two thousand years ago in ancient Rome.

Caveat emptor — let the buyer beware — has terminated the hopes of many thousands of litigants and will decide many legal actions again before paternal governments throw it into the discard along with much else that belongs essen­tially to a people trained to be re­sponsible for their own actions.

In this Australian case some young ex-service men had rented a threshing machine and undertaken contracts to thresh wheat. The ma­chine had not worked satisfactorily and had finally broken down. Whereupon, the young men sued the owner for the loss they had sustained by reason of the defec­tive machine. There was much sym­pathy for the young men, and most people in the little town thought they were bound to win their case. They told the Magistrate how in good faith they had rented this ma­chine to do a job of threshing for which it had been built, but it had let them down. To their surprise, the Magistrate, although most sympathetic, pronounced the fatal words "Caveat emptor," of which they had never heard, and gave the case to the defendant.

The good people who had lis­tened to the case were inclined to agree that "the law was an ass" and to hope that they might never be subject to court action.

Eventually, it appeared that the law was right. The thresher had been used with a very powerful engine entirely unsuited for the job and this had caused the break­down. This fact had not been known to the Magistrate but, by accepting the principle, "Caveat emptor," he had reached the right verdict. The young men should have known that the thresher would not work with such an en­gine and should not have hired it. Having done so, they were not entitled to claim damages against the owner when the machine failed them.

The Rule of Law

For just such occasions the law, over a period of more than two thousand years, has evolved the rule "Caveat emptor"; and if we but think of it, this rule in the vast majority of cases applies with justice.

The Court cannot find out ex­actly the rights and wrongs of every case that comes before it but must have definite rules on which its judgments are formed. In this case it has evolved a rule which throws responsibility upon the buyer. It casts on him the responsibility of looking after his own interest, and any man who cannot do this is unlikely to suc­ceed in a society where business is to be done under contracts free­ly entered. He must see that the goods he buys or hires are suit­able for the purposes for which he procures them, for it is not the duty of the seller or owner to do so.

If a man, after having accepted an article, could plead before the courts that it was not up to his expectations and require that it be suitably replaced, then thou­sands of transactions would never be completed and the work of the courts would be endless.

Although the law must be bound by certain rules, it tries wherever it can to make them as just as possible. "Caveat emptor" does not apply when there is the least misrepresentation involved in a contract, or if, as in the case quoted, the owner of the thresh­ing machine had definitely stated that it was strong enough to be used with such an engine. In such an event, the responsibility for proper performance would be his and the Courts would enforce judgment against him accordingly. One of the troublesome areas for applying the rule of "Caveat emptor" concerns the sale of goods which come into the market in weights or quantities not easily ascertained. In the case of drinks and packaged goods, the makers have long been compelled to de­scribe with accuracy the contents of their containers, and fines are inflicted on those who do not.

Doubt often arises about fruits and vegetables which come onto the market bagged or in crates; but in most Western nations the rule of "Caveat emptor" still ap­plies. Most wholesalers have a rep­utation to uphold and will see to it that their goods are of a uni­form quality that buyers may trust. Sellers whose goods are defective also gain a reputation and their goods are discounted accordingly.

What Is a Cabbage?

It appears that in Britain this is to be changed. The Labor Govern­ment recently employed numerous men who, after being trained, will be placed in every wholesale market to see that fruits and vegetables arrive in measured weights and size and in uniform crates so that the buyer will no longer have to be­ware. The responsibility will be taken from him by government in­spection.

For example, cauliflower heads must measure within a fraction of an inch of the diameter at which they are marked for sale. In the chill of the morning as he harvests his cauliflower for market, the grower must measure each head accurately and see that it exactly satisfies the statutory require­ments. It will no longer be left to the customer to determine that they are of the weight, size, and freshness required. If the seller does the job carefully, he may miss the day’s market and thus the bloom of freshness the customer seeks in cauliflower.

It might be thought that the customers could rely on the repu­tation of the sellers to give them a fair deal or could examine the produce themselves before they bought; but apparently the peo­ple of the future are not to be credited with that amount of in­telligence.

The ancient rule of law, "Ca­veat emptor," goes back into the dim past of history. This is a suf­ficient reason for a socialist gov­ernment, which believes in ad­vancement but not in tradition, to think that such laws are ob­solete.

"Caveat emptor" belongs to the "bad old days" when men were presumed to be self-responsible. Such a rule may be expected to disappear as individuality dimin­ishes and the state comes to be held responsible for everything.

ASSOCIATED ISSUE

May 1988

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