Sec 188

Savigny1 objects to the maxim, "Quotiens in substantia erratur, nullus est contractus," as misleading;. The cases of this supposed class, cited by the jurists, are the following: (1) Utensils of brass are bought in mistake for gold; (2) utensils of lead or other inferior metal are bought in mistake for silver; (3) vinegar is bought in mistake for wine; (4) a female is bought in mistake for a male slave. In all these cases the sale is held to be void, there being no consent, and hence no contract. In the first three cases, argues Savigny, the error concerns the stuff (Stoff), and this was at one time designated as substantia; though as convertible with substantia was used, and more frequently, materia.2 But there is nothing that indicates that all errors as to the substance of a thins;, or as to its material, preclude consent on the part of the party making the error. The question has to be determined by the concrete case. So far as concerns metals, it will be observed that there is a great difference in the values of the articles purchased, in the illustrations above given, from those of the articles intended to be purchased. This difference of value,' however, is not decisive, since it is held that an error as to the difference between good gold and bad gold is not essential and destructive of consent, although the difference of value may be great. Had there been a legal standard of valuation it might have been different, but with no legal standard, the difference between a higher and a lower quality of gold was not regarded as essential. The true reason why, when the intention was to buy gold or silver, there was no consensus when the article taken was brass or lead, is in the peculiar character assigned to gold and silver. They were, as they continue to be, noble and precious metals, and no matter how much the shape in which they were moulded became marred or superannuated, their intrinsic value remained. Articles made from the inferior metals, on the other hand, depend for their value on their workmanship ; when this loses its- value, the value of the article is virtually gone. But the rule we thus reach is confined only to articles of ordinary workmanship. There may he works of art in which the stuff plays a subordinate part, and in which it is the workmanship that, from its exquisite delicacy and elaborateness, gives the value. Carving by Benvenuto Cellini, for instance, does not derive its distinctive value from the metal employed ; the metal may be of no con-quence, and the value of a brass vase, carved by that great artist, would be almost as great as that of a gold vase. On the other hand, articles of table use, made of silver or gold, are valued by weight. With regard to watches for ordinary personal use, Savigny holds that the difference between a gold case and a case of spurious metal is essential, although the watch itself (i.e., its works) is known never to be made of gold, while the difference between gold and inferior metal in a chronometer he holds to be non-essential, since the distinctive value of the chronometer consists in the perfection of its works. But between pure metal and base metal, plated or gilt, the distinction, so the jurists hold, is essential, since of the latter, as a rule, when the form is destroyed, the value is lost.1 And, on the same reasoning, gold and silver being so essentially different in value, if the intention is to buy a gold vase, and, instead, the vase received is silver gilt, there is no consent, and, therefore, no contract. But an error as to inferior metals, when bargained for domestic use, is not essential, although as between these metals there may be differences of value, since it is the shape and workmanship that give the type to such articles, the value of the material occupying a subordinate place. So far as concerns metals, therefore, although the difference between the precious and the inferior metals is decisive, it is not so as to the inferior metals when compared with each other. "Stuff," "material," or " substance," does not here afford a decisive test.-Between wine and vinegar, which the jurists speak of as essentially different, there is an unquestionable difference of stuff. But is there necessarily a difference as to value ? There are some qualities of vinegar which are more costly than some qualities of wine. Here, then, it is not the difference of prices, but the utter dissimilarity of the two things, that makes the error essential.- With regard to male and female slaves, also, the distinction, Savigny proceeds to argue, does not consist in the difference of money value, for female slaves often brought far higher prices than male. Nor in such cases could "stuff" or "material" be the test, since no Roman jurist has treated the difference of sex as a difference of substantia or materia. The test is the object of the use. The male slaves were usually employed in field labor, and as mechanics; the females in household labor and in domestic duties. The sexes, therefore, had distinct objects, and therefore an error as to sex was essential. But sex cannot be regarded as always an essential test. Among animals, the ordinary use is independent of sex, and an error as to the sex of animals-e. g., horses-to be purchased, is not essential.-From these illustrations Savigny draws the following conclusion: An error as to the quality of a thing is essential, when the quality erroneously assigned to the thing would, according to the 'prevailing business standard, -place it in a different class to which it really belongs. Difference in stuff is not decisive, and error in substantia, therefore, is not necessarily essential. He who buys wine, does not fix his mind on a mere fluid contained in a cask, but on wine specifically; and he who buys a gold vessel, fixes his mind not on the vessel, but on the gold as the material of the vessel. According to Roman phraseology, a species is bought, but with the tacit understanding that it belongs to a genus. And the same remark applies, when under the cover of the cask vinegar instead of wine is bought.-Viewed in this light, the difference between genuine and spurious jewels is essential. This is unquestionably the case with unset jewels; and it is also the case when the object of the setting is only properly to show forth the stone. It is otherwise, however, when the stone is used merely to adorn a precious vase, and is only accessory to the vase, though it may be of greater value than the vase.1 With regard to animals, it is not value but kind that decides, and so between different kinds of coarse metal, and different kinds of grain.-To purchases of land the test may be readily applied. "When I buy, for instance, a tract of land on which I suppose a house to be standing, but it turns out before the purchase is consummated that the house is burned down, the material basis of the sale remains the same, but in a merchantable sense its conditions are essentially altered, if my intention was to buy a house, since in this sense a house and a ruin belong to two very distinct classes. Such a contract is consequently held in the Roman law to be inoperative.1 The Roman jurists, on the other hand, held that there is in this relation no essential difference between good and bad wine; between good and bad gold; between utensils of different inferior metals; between old and new clothes.2 The same conclusion was reached on a bargain for the sale of wooden furniture, when a mistake was made as to the wood of which the furniture was built. Now, as Savigny proceeds to argue, price could not here be the test, for the prices of such articles vary with the wood of which they are made; it is a question of species, and it cannot be doubted that here the substance of the wood is subordinate, since by veneering and polishing there is no kind of wood that cannot be imitated. It is true that high authorities have ruled otherwise, misled in part by the abstract idea of dissimilarity of stuff, in part by the analogy with the precious metals, which analogy, however, fails in application from the fact that with furniture form is everything, and if the form is destroyed, the furniture is useless, while with the precious metals the form has little to do with the value, the silver or the gold retaining its merchantable character when melted down. But the following ruling Savigny appeals to as decisive. "Quamvis supra dixi-mus, cum in corpore consentiamus, de qualitate autem dissen-tiamus, emtionem, esse, tamen venditor; teneri debet, quanti interest (emtoris se) non esse deceptum, etsi venditor quoque nesciet; veluti si mensas quasi citreas emat, quĉ non sunt."3 In other words, a table is bought under the erroneous impression that it is of citron-wood, a material highly esteemed. This impression we judge from the context is based on the assurance of the vendor. The contract, notwithstanding the error, is valid, but the vendor is bound to make up the difference in damages, even though the error is innocent on his part. In furniture, therefore, difference in material is unessential, so far as the present issue is concerned. The contract for the sale of the furniture was valid, though an error existed as to the wood.-As has already been stated, there are here two opposite axioms, between which, in each case, an intermediate line is to be drawn. On the one side, if there is an entire difference of opinion as to the identity of the thing bargained for, there can be no contract, since there is no assent of parties to one and the same thing; and to reject this rule would be destructive of all property, since if the rule did not exist property could be alienated without the owner's knowledge, by mere accident or mistake. On the other side, if a false description vitiates a sale, there can be no title made by sale, since there can be in no case an absolutely true description. The true meaning, as we will see more fully in the next section, is that error as to generic character prevents a contract from being matured, but not error as to quality or bulk not going to generic character, unless the incidents.as to which the error took place were essential to the adaptation of the thing contracted for to its intended object.1

"Substantial" error does not necessarily have this effect.

1 Op. cit. sec 137.

2 L. 9, sec 2, L. 11, pr. L. 14, de contr. emt. (18, 1).

1 L. 41, sec 1, de contr. emt. (18, 1).

1L. 19, sec 13-16, sec 20, de auro. (34, 2).

1 L. 57, 58, de contr. emt. (18, 1).

2 L. 45 de contr. emt. (18, 1) ; L. 11, sec 1, de contr. emt. (18, 1).

3 L. 21, sec 2, de act. emt. (19, 1).