Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.
Robert Fairie v. James Inglis
Date: 23 June 1669 Case No. No 55.
A charge of circumvention not sustained where patties had made a bargain, though it was offered to be proved by the defender's own oath, that the pursuer was lesed one half, and that he was a minor.
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Robert Fairie having charged James Inglis, younger of Mordiston, for 1000 merks due by bond, he did suspend, and raised reduction upon minority, lesion, and circumvention. Litiscontestation was made upon the reason of minority, and the term was circumduced, and he decerned. He suspends again, and insists upon the second reason of reduction, upon circumvention, and qualified it thus, That albeit the bond bear borrowed money, yet he offers to prove by Fairie's oath, that the true cause was the boot between a horse and a mare interchanged betwixt the parties; and, albeit the suspender have as good as he got, yet he was induced to give this bond of 1000 merks to boot, so that he is lesed ultra dimidium justi pretii, which in law is a sufficient ground alone to dissolve the bargain and restore either party actione redhibitoria et quanti minoris; and next in so gross inequality ex re præsumitur dolus. The charger answered, That the reason is no way relevant, because our law and custom acknowledges not that ground of the civil law, of annulling bargains, made without cheat or fraud, upon the inequality of the price; neither can there be any fraud inferred, upon the account of the price of an horse, which is not quantitas but corpus, and has not a common rate, but is regulated secundum pretium affectionis; and now the horse and the mare not being to be shown in the condition they were in, the suspender cannot recal the bargain; 2dly, The reason ought to be repelled, because by a ticket apart with the same date of the bond, the suspender declares upon his soul and conscience, that he should never impugn the bond; and thereafter by his second bond produced, he ratifies the same, and passes from any revocation thereof, or quarrel against the same. The suspender answered, That he was content to refer to the charger's own oath, whether, in the charger's own esteem of the rate, the suspender was not lesed above the half; and as for the two tickets, the first was obtained when he was minor, and both laborant eodem vitio, the inequality still remaining without satisfaction.
The Lords, in respect of the tickets, and ratification after majority, and that there was no fraud or deceit qualified, repelled the reasons and decerned.
June 24.—At the reporting of the former interlocutor yesterday, Fairie against Inglis, it was further alleged for Inglis, That he offered him to prove, by Fairie's oath, that he was circumvened in granting of the ratification, because Fairie upon that same design drank him drunk.
Which allegeance the Lords repelled in respect of the bond and first ticket, wherein he declared, upon his soul and conscience, never to come in the contrary.
