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Ernst Rabel, Nature of Warranty of Quality, 24 Tul. L.
Rev. 273, 287 (1949-1950)

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 TULANE
LAW REVIEW
Vol. XXIV MARCH, 1950 No. 3

THE NATURE OF WARRANTY OF QUALITY*

ERNST RABELf

The utter confusion prevailing on the subject of warranty has

been deplored in various places,' and is acutely felt in this country,
in Louisiana as well as in the common law states. The readers of
this review have been ably informed 2 about the different rules of
the common law, the Uniform Sales Act, the French law, and their
reconciliation attempted by the international draft entitled "Uni-
form Law on International Sale of Goods." 3 This draft has been
based on the conviction that the current difficulties are mainly
caused by the irrational survival of historical peculiarities and that
the entire institution of warranty ought to be simplified and inte-
grated into the general structure of the sales contract. There was
hope for general acknowledgment of this thesis, and a German
writer has recently even surpassed its implications, by giving fare-
well to warranty. 4 But in this country, the Uniform Commercial
Code (May 1949 Draft) has come to dampen exuberance. While
it successfully completes the merger of remedies for breach of con-

*The author has been preparing for years a complete English version of
his work on comparative sales law, the first volume of which was published
in German, "Das Recht des Warenkaufs," 1936. The present paper is a pre-
liminary and condensed form of the initial chapter on warranty of quality,
omitting many of the decisions and literary documentation.
tDr. jur., Dr. hon. c., former Professor of Law, research associate, Univer-
sity of Michigan.
ISee, e.g., 3 Williston, A Treaties on the Law of Contracts (1936) 1932,
Gregorio,
673; Vold, 2 of 12ofNuovo
Handbook
in Part the Law of Sales
Digesto 955,436,
(1931)
Italiano 4 146; in Italy, De
. 102.
2
Morrow, Warranty of Quality: A Comparative
Survey, 14 Tulane L. Rev.
327, 529 (1940). I am glad to see that we appreciate in rather similar manner
the necessity of a new suitable order. See Comments, 23 Tulane L. Rev. 83,
96, 119, 130, 140, 154 (1948).
sProjet d'une loi uniforme sur la vente internationale des objets mobiliers
corporels (1935). A second draft under the same title, League of Nations
1939-U. D. P.-Projet I (1), with a revised formulation of the rules on
warranty, has also been published in French and English in the volume,
"Unification of Law," by the International Institute for the Unification 4f
Private
4
Law, Rome 1948.
Korintenberg, Abschied von der Gewihrleistung, Gedanken zum Weltkauf-
gesetz, offprint from Justizblatt fir den Oberlandesgerichtsbezirk K61n, May
15, 1947.
 TULANE LAW REVIEW [Vol. XXIV

tract and breach of warranty, the old English catalogue of cases

of warranty is reproduced with slight improvement.
That the multiple irregularities, uncertainties, and difficulties
encountered in this field are universal, though varying, can be
shown by comparative research which, moreover, will evidence the
common trend to simple and adequate solutions. This entangle-
ment and this unraveling may be illustrated by the following brief
study of some basic problems of warranty. A firmer impression
would be conveyed by a full examination of express and legal war-
Tanty, the required activity of the buyer, and the various remedies
for breach of warranty.

WARRANTY, A HISTORICAL REMAINDER

The origin of the doctrine has nowhere been very ancient. In-
-cipient legal construction is universally well characterized by the
,slogans, caveat emptor; the thing is sold as is; tale quale (Rome) ;
t$fito toioftto (Papyri) ; let the buyer beware; who doe not open
his eyes may open his purse (middle ages).5 The principle per-
sisted, due to the predominance of cash-and-carry bargains in
the legal mind even in periods when sales contracts were in fact
made without delivery or payment or both. Indeed, most existent
codes still envisage the executed sale of specific goods as the model.
When such a "sale" was concluded, the goods had been delivered
and the price paid. Warranty of title or of quality had to be devel-
oped separately first by solemn promises. The "sale," Barkauf,
in itself did not include it.
In Rome, warranty of quality was first produced by formal
assertions (dicta) in the ceremonial of mancipation and by like-
wise formal sponsiones, and other subsequent types of stipulations
(promissa). These latter additions to the sale of specific objects
-were.,enforced by actions ex stipulatu.. The bonae fidei actia ex
.empto has become capable in advanced times to include formless
-party agreements on warranty and the seller's liability for fraud-
ulently concealed defects. This protection of buyers of specific
goods, based on the civil law--actio ex stipulatu, actio de dolo.,
a.tio ex empto--was complemented in a twofold manner. Trade
transactions in the Roman Empire were clothed in generic stipu-
lations, indicating "quid quale quantumque est in Obligatione."6
The seller had to deliver specified chattels of the kind described
5
0n, the older English history,. Hamilton, The Ancient Maxime Caveat
'Emptor, 40 Yale L. J. 1133, 1156 ff. (1931), in his highly interesting search
for.the reasons of the maxim overlooks this universal structural character-
.isti of sales.
6Ulp. D. 46. 1, 75.
1950] , NATURE OF WARRANTY OF QUALITY 275

(centum modios tritici Africi optimi), the qualities being deter-

mined by the wording and the usages. On the other hand, in the
market for slaves and draught cattle, representations of certaif
qualities were usual and later made compulsory by the market
aediles-hunc hominem sanum traditum esse, furtis noxisque solu-
turn esse, furem non esse, fugitivum non esse, etc. The aediles
granted iudicium redhibitorium, an originally penal action, which
is insufficiently known to us. Justinian's compilation finally en-
larged this remedy to a general statutory liability of all vendors
for all defects.
The heritage of the actiones civiles and aediliciae has been
amazingly well preserved in almost all civil law systems. The seller
of unascertained goods has to deliver goods of the agreed dnd, -r
else commits default of delivery. The seller of specific goods is
liable for deceit and express warranty to the extent of damages.
The buyer may, however, demand restitution of the price, total ot
partial, at the buyer's option, on the ground of any defects wlicl
are not quite insignificant (actiones redhibitoria and quanti
minoris). Defect is the absence of such qualities of fitness as. the
buyer could assume to be present for the usually or individually
contemplated use of the goods. For this "aedilician" part of the
doctrine the seller's knowledge or ignorance of the defects is im-
7
material.
This basic pattern has been modified in the particular systenii
in several respects, such as by imposing liability on sellers negli-
gently concealing defects, or imposing on the buyer the duty of
giving notice of defects. Other variations concern the remedies
available to the buyer. Great uncertainty was caused by the gilf
between express warranty and legal warranty; in what cases was
an express guaranty to be subordinated to warranty of "quality'-?
Rational considerations did not begin until the school of natural
law, and since then, an immense discussion has not produced a
clear agreement on the reason and scope of warranty. In our own
time, economic and social ideas have been tentatively infused in the
matter, in my opinion without success. It may be submitted froin
the start that no better result can be expected of an institution
living for thousands of years in the haphazard variants of a wild
flower.
Common Law. In the English development as it is known from
the beginning of the seventeenth century, the ordinary contractual
7Civil Codes: Austria (.922, 932 2nd sentence), Brazil (Art. 1102 ff.-),.
France (Art. 1643), Germany ( 459, par. 3), Italy (1865) (Art. 1550),
(1942) (Art. 1492). Code of Obligations: Switzerland (Art. 197, par. 2). Sales
Law: Scandinavia (. 43, par. 3). . %.,
 TULANE LAW REVIEW [Vol. XXIV

obligation of the seller includes delivery which insofar as the agree-

ment "describes" the goods, must conform to the description. Lia-
bility for quality, again, has a separate history and produces its
own action for breach of warranty. The oldest cases required
solemn assumption of liability for determinated qualities; here
also the development substituted express for solemn assumption;
then it led to representation with intent to assume liability, and
finally simply to express representation (which the May 1949
Draft, Uniform,Commercial Code, Art. 2, Sec. 2-313 (2), still
deems necessary to sanction). Liability without declaration is
based on a tacit assumption, "implied warranty," originating in
particular groups of sales: liability of manufacturers, packers, and
growers, thereafter dealers, for merchantability; of industrial
.sellers for fitness to the normal use and to the particular use an-
nounced by the buyer; of sellers generally for such qualities as
presumed by the buyer in reliance on the skill or knowledge of the
buyer; and liability considered implied in the tender of a sample.
Courts enlarged these grounds and the English and American
acts extended the scope further, although awkwardly grouped and
in overlapping categories. Yet, although uncertainty about the
exact meaning of these provisions is incurable, cases are rare where
a liability under the Continental warranty is not covered in some
way. When I inquired in England for such cases, an outstanding
professor pointed to the famous case of a gentleman selling a speci-
fied horse without representation. The Uniform Commercial Code
(May 1949 Draft), Art. 2, Sec. 2-314 (2) (c), indeed mentions
liability for fitness for the ordinary use only as a part of warranty
for merchantability imposed on "merchants." Actually the courts
have enlarged the idea of a "particular use" in order to narrow
the gap.
As a whole, a general liability for warranty is nearly reached,
though not simply and not avowedly. This result is due to an
incessant work of the courts, by traditional fictions and wide dis-
cretion. But warranty of quality is still a complicated and separate
institution, producing peculiar causes of action and lacking an
organic position in the contractual system.

WARRANTY FOR SPECIFIED GOODS

Theoretical characterization of warranty has often suffered by

failure to distinguish thoroughly between specified and unspecified
objects of sales contracts. .As mentioned above, codifications and
literature have strangely focussed attention on specified goods.
We shall consider presently this narrower topic.
1950] NATURE OF WARRANTY OF QUALITY 277

At common law not much has been written on the structure of

the liability of warranty. But difficulties have been felt. War-
ranty is traditionally regarded as resting on a promise of the seller,
even though it may be merely "implied." But since the courts have
frequently held sellers liable "when by no stretch of imagination
could any promise on their part be fairly inferred from the fact,
nor is any intent to assume a liability reasonably deducible," s the
action has been termed sui generis, and not even truly based on
the contract. Furthermore, if a "promise" is not discoverable,
liability must traditionally rest on the fact that the seller has
assumed the liability by representation, at least tacitly. Conse-
quently, it is required that the liability be inferrable on the facts
of the case rather than on the seller's status.9 Yet certain deci-
sions, again, are irreconcilable with this requirement.

WARRANTY AND PROMISE

As compared with the duty of delivery which is a model of an

ordinary obligation flowing from the sales contract and aiming
at an act of the vendor-how is warranty to be characterized?
This question still seems so controversial that in recent times not
less than three very able Austrian and German writers have de-
voted comprehensive studies to the legal nature of warranty. 10
True, the continental authors observe with great emphasis that
while the duty of delivery carries an action for specific perform-
ance, warranty only includes a guaranty and no enforceable
promise that the quality should exist. This argument is impossible
at common law where specific performance is entirely missing
even for the right of delivery, which shows that there is no "argu-'
ment of necessity." Indeed, convenience rather than the structure
of obligations has to decide whether an action for specific per-
formance should be allowed.11
However, the peculiar structure of the liability has been stressed
quite as in this country. Supposing a sales contract is made by a
dealer, who is bound to warranty in all systems, it is argued: Where
the horse Pluto has been sold and delivered, and turns out to be
sick, the seller has nevertheless fulfilled his obligations. The de-

8
Waite, The Law of Sales (2d ed. 1938) 195.
9
Waite, op. cit. supra note 8, at 224.
1oPisko, GewRhrleistungs-Nichterffillungs-und Irrtumsfolgen bei Liefer-
ung mangelhafter Sachen, I (1921), II (1926); Sfiss, Wesen und R6chtsgrund
der Gewhrleistung ffir Sachmilngel (1931); Korintenberg, Erfrllung und
GewShrleistung beim Werkvertrag (1935).
liThis observation in my article, Zu den allgemeinen Bestimmungen fiber
Nichterffillung gegenseitiger Vertrfge, in Festschrift ffir Dolenc (and others)
(Ljubljana 1937) 701, 727, is approved by Korintenberg, op. cit. Supre note 4.
 TULANE LAW REVIEW [Vol. XXIV

liyery is not defective, it is correct. 12 Not even an express state-

ment or representation in selling that the horse is sound, alters
the. situation. Some authors conclude that the buyer of a specified
article cannot claim that the seller is in default; he must pay the
price, unless he rejects the goods definitely by declaring rescission;
otherwise, he would himself commit default in payment. 1
....- Nevertheless the opposite construction has also been suggested.
The dealer is said to promise delivery of the horse Pluto in sound
condition. Obligation to deliver and liability of warranty are
4
iherged in one idea, that of delivery of the thing free of defects.'
This'theory has led the Reichsgericht to a series of conclusions.' 5
.. owever, if we consider all the modern systems, the adequate
construction lies in the midst. It is still certain that, apart from
express warranty, the seller does not promise that the specified
article is sound, fit, or saleable.16 We cannot deny that thereby
warranty remarkably differs from the ordinary contractual prom-
ises of giving or doing. In principle, the seller does not even guar-
ntee that the horse sold is sound, but merely that he will beliable
if-it is not sound. 1 7 Warranty, hence, may be called a collateral
obligation, if this means that the duty is added to that of delivery
rather than 'included in the latter. But this does not expel war-
ranty from the orbit of the contract. In delivering the sick horse,
the seller has delivered but he certainly has not fulfilled all of the
contract.
- I once presented historical evidence that canon and natural law
prepared and the Prussian and Austrian codes embodied a very in-
teresting system where defects of title, quality, and other defects
of performance were subordinated to a unified contractual liability.
This system has advantages and drawbacks. It clearly shows, how-
ever, a perfect construction of a uniform liability on the ground

"- 12 Schollmeyer, 49 Jherings Jahrb 93; Enneccerus-Lehnman, Recht der

Schuldverhuiltnisse . 112 I; Sfiss, op. cit. supra note 10, at 49, 241. Exactly to
the 3same effect, Waite, op. cit. supra note 8, at 190.
- ' Pisko in Kang's Kommentar zum 6sterreichischen ABGB, 540 n. 15;
Suss, op. cit. supra note 10, at 74, 239; Grossmann-Doerth, Die Rechtsfolgen
vertrags-Widriger Andienung, 131, n. 10.
. 14RG., 52 RGZ. 352, 358; 53 RGZ. 70; RGR. Komm. 459.2; Titze, Recht
der Schuldverh~iltnisse (ed. 4) . 41.3c and in book review, JW.
5'Cf. 52 RGZ. 358 (the buyer may reject goods nonconforming to repre-
sentation as nonperformance) ; cf. 53 RGZ. 70; 66 RGZ. 281 f. (burden of proof
that a sold specified thing has the represented quality); RGR. Komm. 459,
2 and
1 Ritter, EGB. 377 n. 5 draw further consequences.
- OWaite, op. cit. supra note 8, at 195; Williston, op. cit. supra note 1, at
t932, " 673, in discussing condition and warranty, asserts that the natural
and original meaning of warranty is promise, as contrasted with affirma-
tion. This is misleading. Warranty is the promise to make good for a state-
:ment.
.TGasca, 2 Trattato della compra-vendita 838.
19501 NATURE OF WARRANTY OF QUALITY 279

of incorrect delivery, although--apart from a duty of repair-it

does not comprise an obligation to make a delivery free of all
defeets.1'
Is this part of the real Austrian doctrine alien to other laws?
The French Code, Article 1603, in conformity with the precedents,
proclaims distinctly that the seller has two "principal obligations":
to deliver and to guarantee the thing sold, an obvious truth accepted
by the Louisiana and other codes. The Uniform Sales Act equal-
izing warranty with condition, co-ordinates failure to deliver with
breach of warranty.
In no law need we pretend that a buyer discovering a defect
of quality before delivery should have a right to reject the goods
only upon a theory that the seller cannot "deliver." It suffices that
his latent liabilty for quality exists and is certain to materialize
in the future.
Meaning of "collateral." In his famous antithesis of ancient
and modern English law, Baron Parke in 1801 explained that
under the former view a buyer had to pay and receive property-
irrespective of defects and could not return the goods because of
defects. Hence, he had to seek his remedy in the contract of war--
ranty. This judge indicated the true meaning of the thesis that-
warranty is collateral. Warranty was a separate contract. Sale,
from ancient times, is an exchange of goods against money. There-
fore, transfer of the goods is still often said to be the only consider-
ation for the price. For the same reason, the vendor, suing for the-
price, need not allege in his declaration anything referring to the
warranty. 9
As Baron Parke, however, already knew, this old law was aban-
doned in the development of implied warranty. It was a bad mis-
take to preserve the former conception along with the modern ideas
and to keep arguing that the price of a horse is promised in return
for the transfer of title. It has been conceded that "the collateral
character is merely formal" ;20 but it should have been said to be
obsolete. The vendor's assertion ("express" or "implied") is not
"collateral" to the contract, but only to the delivery. This cor-
responds with the history of civil law.
Historicaldelimitationfrom delivery. To ascertain the concept.

ISHaftung des Verk~iufers wegen Mangels in Recht (1902) 335 ff.; Fest-
schrift, op. cit. supra note 11, at 719, 727.
'gParker v. Palmer, 4 B. F. Ald. 387 (1821); Rogers v. Brown, 103 Me.
478, 70 Atl. 206 (1908); 3 Williston, The Law Governing Sales of Goods.
(1948) 342, . 608.
2OThus, Williston, op. cit. supra note 19, at 342.
.8o TULANE LAW REVIEW [Vol. XXIV

of warranty of the older codes 21 we must look not to present doc-

trinal postulates but to the conceptions of the past. In the most
ancient law of sales, the parties furnish goods and price at once,
and there remains only a tort action for dispossession, if any. Cor-
r.espondingly, it can be observed in old and modern laws alike that
warranty of title and, where added, warranty of quality, is con-
ceived as an obligation emerging when delivery is accomplished.
The customary stipulation in Roman slave sales-hune hominem
sanum... traditum esse-is significant for the universal concep-
tion. Inthe eighteenth and nineteenth centures, nobody in Europe
doubted that warranty presupposes not only a contract but also its
22 23
performance by delivery. In the codes of Prussia and Austria,
as in older formulations, it was assumed that the buyer must have
accepted the goods as performance before the problem of warranty
arises. Hence, the time of delivery and acceptance is that at which
the defects must exist and this is the time when the remedies for
breach of warranty arise and limitation begins to run.24 Likewise,
the French Civil Code of 1804 regards first the delivery (Art.
1604) and then warranty (Art. 1625) ;25 the seller guarantees
against eviction suffered by the buyer in the possession of the
goods, 26 and in case of a physical defect, the buyer may give the
27
goods back or retain them, paying part of the price.
Although in the Sales Acts the close connection of warranty
and delivery is no longer noticeable, some courts have still main-
tained that breach of warranty occurs upon delivery, for the pur-
pose of computing the time of statutory limitation of action. 28
All this must belong to the past.

CONTRACTUAL LIABILITY
Civil law takes it as a matter of course that warranty flows
from the contract, although liability for tort, such as deceit or
negligent misrepresentations, may come in with its own conditions
and effects. That in the common law jurisdictions it is still thought
that warranty is neither fully in tort nor fully in contract 29 stems
21
22
Festschrift, op. cit. supra note 11, 727 ff.
23
Prussian Allg. Landrecht I, 11, . 135 ff.; 192 ff.
Austrian Allg. BGB. 922 ff. 933; ef. Sup. Ct. (Jan. 10, 1933) 51 Oes-
terr.24 Zentralblatt 147.
Likewise, Civil Codes: Italy (1865) (Art. 1462), Spain (Art. 1461).
25Civil Code: Louisiana (Art. 2500 ff. and Art. 2520 ff.).
2
2
Civil Codes: France (Arts. 1625, 1626), Louisiana (Arts. 2505, 2506).
7Civil Code: France (Art. 1644).
28
Waite, op. cit. supra note 8, at 241.
29See Waite, op. cit. supra note 8, at 193, n. 7, 197; 1 Williston, The Law
Governing Sales of Goods (1948) 507, 197 thinks with Blackstone of a quasi
contract or a quasi tort and concludes that "the elements of a warranty are
broader than those of a contract."
1950] NATURE OF WARRANTY OF QUALITY 281

from the procedural complications. The ancient English action

on the case sounding in tort for false warranty has remained in
use as a "form." But in actual operation, this remedy does not
differ from an action of assumpsit, which is also open to the buyer.
The action is one for breach of implied warranty and not an action
in tort; the plaintiff has only to show the breach of warranty and
in both ways obtains identical damages.
Doubt about the contractual basis of warranty is not justified
by the advent of legal, replacing implied, warranty. Innumerable
duties added by legal rules to the contractual undertaking are sub-
ordinated to the contractual remedies. Nor is it of any concern
that the responsibility is caused by a statement or conduct rather
than by a promise.
Tort has not left substantive remainders. In some American
courts, before the Sales Act, implied warranty of a manufacturer-
seller was conditioned by negligence. But the Sales Act ended
this.30 True, the emphasis in common law on the buyer's reliance
on the skill or knowledge of the seller, or on his assertion or
promise originated as an element of tortuous deceit.3 ' In the period
of the Sales Acts, however, this requisite serves to support the
assumption of the guaranty. The results achieved in the great
majority of the cases (as I shall show elsewhere) correspond to
those reached in other systems by other methods, such as the exclu-
sion of warranty in France for patent defects and in Germany for
defects not recognized because of gross negligence of the buyer.
The Act is in fact "a codification of contract, not of tort."3 2 When
American courts indulged in the construction of warranty as
"mixed" from tort and contract elements, a desire for turning
around some technical difficulty was influential. 33 Such temporary
expedients should not affect the recognition that, although common
law enforces warranty "indifferently ex contractu or ex delicto,"3 4
it sanctions a contractual obligation. Of course, full integration of
the requirements into the contract would help to better clarity.
Express warranty, whether promise or representation, rests

3
oWihiston, op. cit. supra note 29, at 617, 237.
31
Morrow, Zoo. cit. supra note 2, at 341, 564 urges this point.
32
Llewellyn, On Warranty of Quality and Society: II, 37 Col. L. Rev. 341,
390 (1937).
S3The proof is in Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199 (1933);
Greco v. S. S. Kresge Co., 277 N. Y. 26, 12 N. E.2d 557 (1938); Howson v.
Foster Beef Co., 87 N. H. 200, 177 Atl. 656 (1935); Cf. Brown, The Liability
of Retail Dealers for Defective Food Products, 23 Minn. L. Rev. 585, 592
(note 50) (1939).
3
8'Pound, An Introduction to the Philosophy of Law (1922) 174.
 TULANE LAW REVIEW [Vol. XXIV

directly on agreement. The contrary theory of Williston 35 has not

obtained.36
CONCEPT OF DEFECT

What "quality" and "defect" exactly are, has often been a ques-
tion of great confusion, especially in connection with express repre-
sentation. Considering the legal definitions of the Codes and their
interpretations, the international draft (Uniform Law on Inter-
national Sale of Goods) makes the seller liable:
"Art. 37. The undertaking shall apply:
"(a) where the goods do not possess the qualities necessary
for their ordinary or commercial use;
"(b) where the goods do not possess the qualities necessary for
a particular purpose expressly or impliedly contemplated by the
contract;
"(c) where the goods do not possess the qualities and character-
istics described in the contract including any express undertaking
contained therein.
"The absence of any immaterial quality or characteristic shall
not be taken into account."
That express warranty of "quality" is not to be discriminated
against has finally been understood.
Defect and error. For the purpose of implied or legal guaranty,
the defects must be unknown to the buyer (hidden, vices occultes).
However a recurrent theory which takes error as the basis of
warranty was easily refuted, long ago, by the mere observation
that the seller has the burden of proof as to the knowledge of the
buyer, while annulment for mistake requires proof of the error by
the plaintiff.
Is this not true for Louisiana? An opposite theory cannot be
deduced from the condition for redhibition, formulated in Article
2520 of the Civil Code: "that the buyer would not have purchased
it, had he known the vice." This comes from the French Article
1641, tending to require gravity of the vice when it merely dimin-
ishes the use, and involving redhibition as well as price reduction.
35
Williston, op. cit. supra note 29, at 367; 4 Williston, A Treatise on the
Law of Contracts (1936) 2689, 2690, 970, 971.
36
United States: Bogert, Express Warranties in Sales of Goods, 28 Yale
L. J. 14, 16 (1923) ; Bennett v. Piscitello, 33 N. E.2d 251 (1941).
England: Benjamin, Sale of Personal Property (5th ed. 1906) 686.
Germany: 54 RGZ. 223, and constant practice.
Switzerland: BG. (Sept. 25, 1945) 71 BGE. II 239.
1950] NATURE OF WARRANTY OF QUALITY

True, the Louisiana Article 2520 speaks of avoidance of a sale, and

is understood as requiring the error as the principal motive of the
purchase. And, indeed, some old French exegetes were of an anal-
ogous opinion, regarding redhibition as a "resolution," that is
annulment , destroying retroactively the transfer of title.37 But
this theory is abandoned, 38 and must not necessarily affect the
Louisiana Code,3 9 which has separate, although somewhat anal-
ogous, provisions for error.
Hence, the question of the relationship between these two insti-
tutions arises. Two main opinions are held in civil law practice.
(a) One view, dominant in France, considers warranty and
error, producing different causes of action, as concurrent. Error
of the buyer about a certain quality of the goods is a vice of consent,
a psychical fact. Warranty requires a quality necessary for the
use of the goods and concerns the economic fact of fitness of the
thing.40 Thus, the buyer's wrong assumption that the pearls to be
bought are genuine is an error. 41 The sale of a painting mistakenly
ascribed to an old master is a typical example of annulment on the
ground of error in France, while it is strictly a case of warranty
42
for quality in Germany.
But modern writers consider that a quality essential for pur-
chasing also affects the use of the article. In the case of a defect,
the actions hence concur, the annulment for mistake being safe
within the ten years limitation (Art. 1304).
The practical value of this theory is doubtful. In a recent Bel-
gian case an animal was sold for slaughter but its meat turned
out as improper for consumption. The court held that this was
not a case of a missing object for the contract whereby the contract
would be void, but a case of a latent defect.43 Certainly, the same
37
Laurent, Principes de droit civil francais XXIV (5e id. 1893) n- 292 ff.,
267 ff.
3SColin et Capitant, Droit civil frangais II (7e d. 1932) p. 780; Hamel in
10 Planiol
39
et Ripert 138, n. 3, 134.
See Comment, 4 Tulane L. Rev. 433, 434 (1930); Morrow, loc. cit. supra
note 2, at 550, 553, 554.
Art. 1582, Portuguese Civil Code, in fact confusing warranty and error,
has been sharply criticized by Da Cunha Gonzalves, 8 Tradado de direito
civil 561, 1219.
4OFrance: Guillouard 4161; 10 Huc 142; Baudry-Lacantinerie et Saignat
414, 425 V; Hamel in 10 Planiol et Ripert . 126; 2 Colin et Capitant 482,
. 582.
Germany: Planck-Siber 459; Wolff, 56 Jherings Jahrb. 37; Enneccerrus-
Lehmann . 335 III; Sfiss 203.
Italy:
41
Tartufari Vendita 365; Ascoli, Foro Ital. 1920, 250; and others.
Cour Paris (July 28, 1927) D. H. 1927, 529; Cass. reg. (Nov. 5, 1929)
S. 1930.
42 1. 180, Gaz. Pal. 1929. 2. 863.
Dalloz, Rdpertoire Pratique vol. XII (1926), Vente no 101; Reichsgericht
(March
43 11, 1932) 135 RGZ. 340.
Trib. com. Bruxelles (Feb. 13, 1940) Jur. Com. Brux. 1940, 250.
 TULANE LAW REVIEW [Vol. XXIV

sound result would be upheld against an assumption that the con-

tract was void on the ground of error. But why?
(b) While also in Germany error and warranty are based on
different sets of facts, the courts regard the remedies for breach
of warranty as special law exclusively applicable in view of their
legislative balance of liability without fault and a short period of
limitation. 44 An exception is made for tort actions for deceit,45
as in all other laws.

UNASCERTAINED GOODS

Remedies for breach of warranty? Since the actions for breach

of warranty originated in all systems in executed sales of specified
chattels, there has never been an obvious answer to the question
of their applicability to a faulty delivery of goods sold unascer-
tained, and especially of fungibles. Practical interest is caused by
the particularities of warranty, such as short limitation of action,
permission to rescind (which is not allowed for non-delivery), the
duty of notice and the immediate right of rescission.
The text of the Anglo-American Acts leaves many doubts. The
principle is still said to be: "A collateral warranty without doubt
usually applies to specific goods. ' 4 ; In the divided English opinion,
there is great authority for the doctrine that warranty does not
concern generic objects. In the United States, however, the buyers
claimed more and more urgently, that rescission under Section 69
of the Uniform Sales Act should be granted also in sales of unascer-
tained goods on all grounds of warranty (not only in case of unmer-
chantable goods), and found increasing favor with the courts. 4 7
German legal history furnishes an exact analogy. Very old mer-
chant customs, the same as in England, entitled the buyer to reject
goods not conforming to merchantable standard (Kaufmannsgut,
Handelsware), a privilege that did not then exist in the German
common law. But after gradual progress 48 finally the German
Civil Code (480) entitles the buyer of generic goods who receives
defective things, to choose between redhibition or price reduction
and a claim for substitute goods, as in case of non-delivery. It is
commonly explained that by delivery of defective goods the seller
44
Constant practice from 61 RGZ. 171; 97 id. 351; 135 id. 339; 138 id. 354.
The various theories are listed in Tolkhaus, Gefahrtragung und Mfngelhaf-
tung bei Kauf- und Werk-vertrag (Diss. G6ttingen 1937)..
45104
46 RGZ. 3.
Williston, op. cit. supra note 29, at 471, 185.
47
Williston, op. cit. supra note 29, at 528, 205; cf. 479, 183.
4SHanausek, 1 Haftung ffir die Giite der Kaufsache 72; Grossman-Doerth,
Die Rechtsfolgen vertragswidriger Andienung (1934) 28 ff. (with unjusti-
fied criticism, 178 ff.).
1950] NATURE OF WARRANTY OF QUALITY 285

attempts to concentrate his obligation of delivery and the buyer

may either take him at his word and proceed as when the goods
were bought specifically, or reject them as not conforming to
description. 49 The courts subject the remedies for substitute de-
livery or ensuing damages for non-delivery in this case to the duty
of giving notice and the short limitation. This would seem a re-
quirement of equity.
A similar position is taken in other central and northern Euro-
pean laws, despite some contrary textual arguments. 0 In France
and the Latin countries, however, unhampered concurrence between
actions for non-delivery (Art. 1184) and breach of warranty (Art.
1644) seems to obtain.9 '
Goods of different kinds. When goods of a kind not conforming
to the contractual description (aliud) are delivered, may they also
be regarded as defective in the meaning of warranty? Great uncer-
tainty prevailed for a long time in European commercial law. In
the traditional opinion the only remedies available are those for
non-delivery. 2 However, the practice revealed difficult and some-
times absurd distinctions. Therefore the German Commercial
Code of 1896 (378) extended the duty of giving notice to the de-
livery of goods of a different kind or of a wrong quantity, unless
the difference of kind is so subsiantial that the seller could expect
rejection.5 The courts have further extended this rule to limitation
of action. 54 The old impractical distinction is, thus, replaced by
another, not quite so cumbersome, discrimination.
Wrong quantity. The Sales Acts treat delivery of too much or

49
See,
e. g., Enneccerus-Lehmann, Recht der Schuldverhiiltnisse (1932) 409.
0
5 Switzerland: C. Obl. Art. 201, 205 par. 1; Oser-Schoenenberger, Comm.
840 n. 2 (b).
Scandinavia:
5
Sales Law 43.
521Baudry-Lacantinerie et
Saignat (ed. 3) 314.
England: Chanter v. Hopkins (1838) 4 M. & W. 399, 150 Engl. Rep. 1484.
United States: Potomac Steamboat Co. v. Harlan & Hollingsworth Co., 66
Md. 42, 4 Atl. 903 (1886). Cf. Uniform Sales Act . 44 (3) (1931); Port-
folio v. Rubin, 239 N. Y. 439, 135 N. E. 843 (1922).
France: Hamel in 10 Planiol et Ripert 126, 126.
Germany: Before the C. C., 14 ROHG. 367, 371; 24 id- 404; 18 RGZ. 55;
but see also more recently, Oertmann, 80 Z. Handelsrecht 48; Mosse-Heymann,
HGB. 378 n. 1.
Italy: Cass. Roma (May 3, 1887) Foro Ital. (1887) I, 577; Asquini, Riv.
Dir. Com. (1920) II, 507.
Spain: Manresa, 10 Comentarios 236.
5
sSee, e. g., Schlegelberger, HGB. 1204, 378 n. 6: different kinds: winter
and summer wheat; Egyptian cigarettes and those manufactured from Egyp-
tian tobacco; aluminum-chloral and chlorid-aluminum. Uncertain: red and
white Bordeaux wine; Scotch and Australian wool; super-large and large eggs.
De Gregorio, op. cit. supra note 1, at 956, 103: different kinds, not defective:
wine of minor grading, divergent sizes, color; horse of another age or race.
Warranty cases: sour wine; discolored material; diseased grain.
5486 RGZ. 92; similarly, in Sweden, Almdn, 2 Skandinav. Kaufrecht 7.
 TULANE LAW REVIEW [Vol. XXIV

too little as a partial non-delivery, 55 while numerous laws apply

the rules for warranty of quality.56
The international draft, Article 38, applies exclusively the war-
ranty, rules in both cases, aliud and wrong quantity. Still better,
in the draft of the Uniform Revised Sales Act, a unified system
of remedies ends this difficulty.

RATIONALE

There are many more problems on which traditional doctrines

have determined the present rules, as for instance the time for
making a representation and the time for the existence of a defect.
These doctrines unfortunately, have generally been inherited and
irrational. A sound theory is well needed.
The German literature, always keen on discovering the theo-
retical basis of legal institutions, has dug deep in more than a dozen
different attempts to explain warranty ex /ege. 5T Once Windscheid
construed the buyer's declaration to buy as one of his alleged cases
of "presupposition" :58 The buyer's consent is not given under the
condition, but under the assumption, that the goods are free from
defects; this is an "undeveloped condition." Although Windscheid's
ingenious theory was soon refuted,.and, as a whole, discarded, con-
nected theories have sprung up more recently. Under their influ-
ence and with regard to the various factors of contract making
and equitable law-making, warranty has been based upon the con-
templation of both parties; on the mutually or the intended equiva-
lence of the promises of the parties; or pointing to the state of
mind of the parties, on the buyer's ignorance; or his mistake; or
disappointment; or, reminiscent of Windscheid, his "virtual reser-
vation." Warranty has also been regarded as a case of partial
impossibility of performance; of frustration; or of ctausula rebus
sic stantibus; not to speak of variants and combinations of all these
efforts.
In this country, where theory is not believed so powerful
as in Germany, nor so immaterial as in England, it seems to be
55
Engl. S. G. A. 30, Uniform Sales Act . 44 (1), (2) (1931). Partial
delivery rather than a defect is assumed also, e. g., in France, by 5 Aubry et
Rau 107, . 355 bis.; Hamel in 10 Planiol et Ripert 129; in Italy, Tartufari-
Soprano, Vendita 455, 396, Ramella, 1 Vendita 193; in Switzerland, Oser-
Schoenenberger, Art. 197, II, 2 (b).
N6Civil Codes: Argentina (Art. 472), Germany (Art. 378), Mexico (Art.
383), Spain (Art. 336), Uruguay (Art. 545). The Scandinavian Sales Law,
50, identifies deficiency in quantity with a defect, where the buyer must
assume
57
that the goods are tendered as full delivery.
See the critical report by Sfiss, op. cit. supra note 10.
5
8SWindscheid, Die Lehre des r6mischen Rechts von der Voraussetzung
(1850); id., 2 Pandekten 394, followed by the Italian translators Fadda-
and Bensa " 394, n. yy. -
1950] NATURE OF WARRANTY OF QUALITY 287

strongly felt that the historical basis of implied warranty in pre-

sumed representation has been crumbling and that more is needed
than the mere fiction of a statement.
The solution of the theoretical main problem may be suggested
by one of those fundamental apperceptions in which English com-
mon law is as strong as it is weak in formulating rules. In the
cases where caveat emptor is still true in England, the buyer has
been said to take "the risk of quality upon himself." 9 Indeed, party
agreement complemented by usage or the law distributes the risk
of defects of quality between the parties. That goods and price
are set up in a certain subjective equivalence by the individual
contract; that the buyer could expect and the seller could know
the buyer to expect certain facts; and that either party's behavior
influences the fairness of decision-all these propositions are true
but of no greater influence than on any other part of the effect of
contracts.
In selling a specific object or in tendering specific objects as
performance of a contract to sell unascertained goods, the seller
normally assumes the risk of "defects." The alleged theoretical
grounds for peculiar conditions and remedies of warranty disap-
pear. The historical deductions from preconceived fundamentals
have to yield to rationally adequate rules.
59 Benjamin, op. cit. supra note 36, at 689, n. 9.