Case Comment Volume 9:2

G. A. Gruninger Et Fils Ltee v. Construction Equipment Company Limited

Table of Contents

G. A. GRUNINGER ET FILS LT9E v. CONSTRUCTION

EQUIPMENT COMPANY LIMITED’

Vente-Camion-remorque-D6fauts caches de la chose vendue-
Connaissance-Prgsomption-Action en dommages-intgrats-D ai

raisonnable-C.C., art. 1527, 1530.

Joseph J. Oliver*

An important but nebulous principle of the civil law has been further con-
fused in the Superior Court decision of G. A. Gruninger et Fils Ltee v. Construction
Equipment Company Ltd.’ This case deals with the vendor’s liability for damages
suffered by the purchaser as a result of the latent defect in the thing sold. In
particular it is concerned with the existence or non-existence of a presumption
of knowledge on the part of the seller, and the quality of this presumption.
Another aspect of the case-the obligation to take a redhibitory action within
a reasonable time, as provided by article 1530 C.C.-will not be discussed here.
At the outset it should be emphasized that attention will be directed, not
to the ratio decidendi of the case, but to an obiter dictum which in practice might
conceivably exert quite a persuasive influence. This comment will be an attempt
to trace the juridical development of the subject matter under consideration,
to present the law as it existed at the time of the Gruninger case, and to examine
whether that case has diverged from accepted principles.

The Case-Facts and Ratio Decidendi

The case is based on an action in damages for latent defects totalling $4,743.
The plaintiff, Gruninger, had bought from the defendant Construction Equip-
ment Company Ltd. a powerful truck, which was attached to a tank cementer.
While the plaintiff was transporting cement from Montreal to Three Rivers,
the apparatus which joined the tank to the truck broke. The tank detached
and caused loss of cement and damages to the truck; it was for these damages
that Gruninger demanded payment. He claimed that the upsetting of the
cementer “was entirely due to a defect of construction in the arm and the
harness above mentioned, for which defendant is entirely responsible and of
which it was aware or should have been aware.”

The learned trial judge, Ferland, J., held that since the plaintiff had neither
alleged nor proved any fault on the part of defendant, he could not base his
action on Art. 1053 C.C. but must rely upon Art. 1527 C.C. Since Gruninger
had proved only fault of construction, and as the defendant is a company

‘[1962] C.S. 444.
*Of the Junior Board of Editors, McGill Law Journal; second year law student.

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CASE AND COMMENT

which distributes and sells Mack trucks which it does not build itself, the
action must be founded upon legal warranty for hidden defects. Then the
learned judge made certain remarks to which, with” all due respect, exception
must be taken and which will form the basis of this critique:

Le d~faut de construction expos6 au paragraphe 4 de la dclaration 6tait un d6faur non apparent
quc les inginieurs de la demanderesse et de la ddfenderesse n’avaient pu dirtcer. II s’agit donc
‘une action r~sultant de vices r&lhibitoires. L’article 1527 C.C. contient le fondement de
Faction de la demanderesse. 2
He continues:

Comme la d~fenderesse est une commergante faisant profession publique de vendre et de
distribuer des camions-rcmorques produits par un manufacturier, ell est 16galement pr~sum&e
connaitre les vices du canion qu’elle a vendu i la demanderesse an mois de juin 1952, d’apr~s
]a loi telic qu’interpr&&e par la jurisprudence. C’est une responsabilit6 l6gale d&cr&& par I
Code civil sans la n~cessit6 de prouver une faute du vendeur.3

Hence Ferland, J. would make the vendor liable even though knowledge
of the latent defect, was for practical purposes, impossible. But he held that
because an action for damages resulting from latent defects ought to be taken
with reasonable diligence, as provided by Art. 1530 C.C., and because this
diligence was not exercised by the plaintiff, his action was tardy and hence
must be rejected. It is not proposed to examine this part of the judgment,
which in any case seems unobjectionable in law. The first part of the judgment
which is obiter will be analysed. However, obiter or not, such broad principles
(as enunciated by the trial judge) of possible influence in a frequently applied
section of the Code, cannot be ignored.

The extent of the vendor’s liability is covered by Arts. 1524, 1527, and
1528 C.C. He is bound for latent defects even when they were not known to
him; thus he may be open to a redhibitory action setting aside the sale regard-
less of his knowledge or lack of it.

However, Arts. 1527 C.C. and 1528 C.C. read as follows:

If the seller knew the defect of the thing, he is obliged not only to restore the price

1527.
of it, but to pay all damages suffered by the buyer.
He is obliged in like manner in all cases in which he is legally presumed to know the defects.
1528.
If the seller did not know the defects, or is not legally presumed to have known them,
he is obliged only to restore the price and to reimburse to the buyer the expenses caused by
the sale.

Because resulting damages may often far exceed the value of the goods
sold, existence of knowledge on the part of the seller may be crucial. Whether
this knowledge exists in fact can be determined in each case by the evidence.
Whether it exists as a matter of law (i.e. is presumed) is a mixed matter of fact
and law. This latter issue of law must first be settled; only then can the
particular fact pattern be applied.

In this case the learned trial judge imputes liability under Art. 1527 C.C.
because the non-apparent defect was one that the engineers of the plaintiff

2Ibid., at p. 445. Italics added.
3Ibid., at p. 445 and 446.

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and of the defendant “n’avaient pu d~celer.” To reinforce evidence that the
defect was latent, he holds that it could not have been discovered; while it may
be conceded that this enhances its hidden quality in the physical sense, in law,
impossibility of knowledge has a very different effect indeed. On this point,
doctrine and jurisprudence are somewhat confusing and require a complete
survey. Nevertheless it is proposed to illustrate that certain legal principles
have been settled, and that (1) the legal presumption of knowledge referred
to in Art. 1527 C.C. applies only to a limited category of sellers; (2)
this
category is divided into two groups – manufacturers and non-manufacturers;
(3) and for the latter group at least, the presumption is rebuttable upon proof
that discovery of the defect was impossible. This entails a consideration of
the extent of the obligation of warranty against latent defects.

Survey of the Doctrine and Jurisprudence
(A) To whom does article 1527 C.C. apply?

The relevant articles of the Code Napoleon, 1645 and 1646, correspond to

articles 1527 and 1528 C.C. and read as follows:

1645. Si Ic vendeur connaissait les vices de la chose, il est tenu, outre la restitution du prix
qu’il en a requ, de tous les dommages et intr&ts cnvers l’achereur.
1646. Si Ic vendeur ignorait les vices de ]a chose, il ne sera tenu qu’A la restitution du prix,
et rembourser i l’acqureur les frais occasionns par la vente.
It should be noted that the words “or is not legally presumed to have
known them” in Art. 1528 C.C., emanating from the obligation created in the
second paragraph of Art. 1527 C.C., are omitted from the Code Napoleon.
Nevertheless French doctrine and jurisprudence are useful in analyzing the
theoretical framework of the presumption under consideration. 4
First, one must refer to Pothier who outlines two situations:’

(1) If the seller is ignorant of the defect, his warranty is confined to the
price of the thing sold. However, if the seller is aware of the flaw and does
not inform the buyer, he is further liable for damages which the defect causes;
this is fraud and the seller must indemnify the buyer for all wrongs resulting
from it. But the case of actual knowledge is not of immediate concern to us.

(2) An artisan who sells the product of his trade, even if absolutely ignorant
of any defect, is nevertheless presumed to know the defect and is liable to
indemnify the purchaser for all damages that these imperfections may have
caused. The rationale is that the artisan renders himself responsible for the
quality of his wares, his want of skill being a fault. Imperitia culpae annu-
4Anglin, C. J., in Samson & Filion v. The Davie Shipbuilding & Repairing Co. [1925] S.C.R. 202 at
p. 207, relies upon this source: “. . . the French authorities are agreed that there exists in French
law a presumption, similar to, if not identical with, that indicated in the second paragraph of
Art. 1527 C.C.” The codifiers cite Pothier and Domat; Mignault also uses French doctrine as a source.

5Pothier, Traiti de Vente, ed. Bugner, 213-216; Obligations, 163.

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CASE AND COMMENT

meratur. In effect he warrants the skill of his art when he professes it publicly.
Pothier continues:

I1 en est de mame du marchand fabricant on non fabricant. Par Ia profession publique qu’il
fait de son commerce, il se rend responsable de la bont6 des marchandises qu’il d~bite, pour
l’usage auquel elles soot destin6es. S’il est fabricant, il ne doit exposer en vente que de bonnes
marchandises; il doit s’y connaitre, ct n’en dabiter que de bonnes.6
Thus, according to Pothier, the non-manufacturing merchant vendor, like
the manufacturer, is inescapably bound for damages; there is no way he may
rebut the presumption of knowledge, for it is a presumption juris et de jure.
Even if he could rebut it by proving ignorance, this very ignorance would be
a fault. But such a view is extreme and has been modified by subsequent
jurists.7

A leading case, which presents a lucid enunciation of the principles involved,
is the Supreme Court judgment of Samson & Filion v. The Davie Shipbuilding
and Repairing Co.8 The action arose out of an explosion of gun-cotton, in a
secondhand pipe, killing an employee of the defendant company. It was common
ground that none of the parties knew or could have reasonably been expected
to know that the pipe contained such explosive material. The material facts
in this case arc similar to the case under consideration, wherein a non-manu-
facturing merchant sold a product, the latent defects of which caused damages.
Is he presumed to have had knowledge? If so, is this presumption rebuttable?
By what means? The notes of Anglin, C. J. are most instructive.

The learned Chief Justice states that since the Code does not list those
vendors who are legally presumed to have knowledge, nor does it in any way
describe them, recourse must be had to the common law (presumably the
civil law). He goes on:

Also exfacie the presumption is juris tantum and not juris et de jure. Hence it is rebuttable,

but by what proof is again the question for careful consideration. 9

The basic object of his search is to discover whether a legal presumption of
knowledge exists against a secondhand dealer selling secondhand pipes, and
the nature of the presumption if it does exist. For this purpose, he divides the
application of Art. 1527 C.C. into four relatively distinct groups.

The first group, that of the ordinary vendor who is neither manufacturer
nor merchant, is excluded by Pothier from a legal presumption of knowledge.
Against him Art. 1527 C.C. has no application. Lack of knowledge is not a
fault, for the public has placed no reliance on his skill, which is considered
equal to theirs. Secondly, at the other extreme, is the merchant-manufacturer

6Traiti de Vente, 214.
THowcver, Pothier is supported by Guillouard, Traitis d, la vente et de Plichange, I, no. 463, who

places both the manufacturer and the merchant in the same position..

811925] S.C.R. 202, followed in Cayer v. Drolet [1950] K.B. 790, and Dame Azeff & Metilman v.

Century Construction [1958] S.C. 80.

‘[1925] S.C.R. 202, at 207.

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who does incur a presumption of knowledge of latent defects in the goods he
has produced. On these two categories the authorities are in agreement.”0
The third group, that of the vendor classified as a merchant, but selling goods
which he has not manufactured, directly concerns us. The learned Chief
Justice states:

1

The authorities are in accord that in the case of a merchant-vendor who deals in a definite
class of goods in regard to which he may reasonably be supposed to possess skill and special
un marchand qui vend des ouvrages . .. du commerce dont il fair profession, (Pothicr,
knowledge –
Vente, 213); un marchand faisant le commerce de choses pareilles, (Baudry-Lacantinerie, Vente,
no. 436); qui n’est pas en effet un vendeur ordinaire, (D. 73, 2.56) – knowledge of latent defect
will be presumed. Such merchants are classed amongst those who are legally presumed par
profession to know the latent defects in their wares (5 Aubry et Rau, p. 113), and therefore
held to be within Art. 1527 C.C ….
Further on he introduces an important concept – he speaks of vendors,
… on whose skill or knowledge, because their calling imports possession of it, a purchaser
would be justified in placing, and might be expected to place, reliance. It is not, therefore,
surprising to find that in the French cases in which merchant-vendors actually ignorant of
defects in articles sold by them have been held liable under Art. 1645 C.N. on the footing of
presumed knowledge or of fault, attention is generally directed by the courts to the special
skill or knowledge which their public carrying on of a particular line of commerce imports.
Spondet pritiam artis is the underlying principle of liability.’2
Thus the element of reliance has been added as a requirement, or at least an
indication, of the existence of presumed knowledge; if the public places their
trust in a merchant’s skill, then his lack of that skill must be deemed a fault.
The basis of this trust rests upon the particular talents or knowledge which the
specialized merchant possesses ard makes known publicly. French doctrine
and jurisprudence may be cited as support. 13

Finally, Anglin, C. J. presents the fourth category, that of the merchant
not selling in his professed field, and it is within this group, with the ordinary
vendor, that he classes the secondhand dealer, upon whom no special reliance
or presumption of knowledge rest.

(B) Quality of the Presumption of Knowledge

Then the learned Chief Justice poses a question central to this case comment.
“By what proof is the presumption of knowledge under Art. 1527 C.C. re-
buttable?”‘ 4 The answer cannot be absence of knowledge, because the very
rationale of the presumption is to impute fault or imprudence to ignorance; to
interpret otherwise would be to subvert centuries of judicial opinion and
‘5 Guillouard, op. cit., I, no. 463; Baudry-Lacantinerie, Vente, no. 436; Pothier, Vente, 213; Troplong,
Vente, 574; Duvergier, Le droit civil franfais, 1, no. 412; Wilson v. Vanchestein (1897) 6 B.R. 217;
Sirey 1873-2-179, Pernet v. Climent Maonnier- Sirey 1899, Ire partie, p. 271, Cass. Req. 30 janvier
1895; Fourth Report of the Codifiers, at p. 14.

11(1925) S.C.R. 202, at 210 and 211.
12Tbid., p. 212.
3D. 1912, 1.16; D. 1894, 2.573,574; Pand. Fr. Pr. ‘1892. 2.169; D. 1873, 2. 55; D. 1863, 2. 27.
14[1925] S.C.R. 202, at 213.

No. 2]

CASE AND COMMENT

decision. But does this mean that there is no manner in which the presumption,
and hence the liability may be rebutted? If it was impossible for the vendor to
discover the defects, may he not then be exonerated? Upon this important
issue rests the validity of the.Gruninger case, for it is submitted with the utmost
respect that if the presumption is in reality irrebuttable, the learned judge’s
obiter is merely confusing; but if it is rebuttable, as this comment will attempt
to show, then his remarks tend to be at variance with a preponderance of
doctrine and jurisprudence.

To provide theoretical background it is necessary to return to the authors.
Pothier has placed the manufacturer and merchant in one group; for both there
is no escape from the liability; the presumption against them is juris et de jure.
Baudry-Lacantinerie agrees with Pothier about the manufacturer, but
expresses doubts regarding a merchant selling similar articles (i.e. a specialized
merchant). He believes that the merchant also is obliged by his profession to
know what he is selling, and that the buyer is not required to prove this
knowledge:

‘article 1646 et non sclon

Mais cc n’est qu’une prisomption qui comporte la preuve contraire, et si le marchand d6montre
que la nature des vices cach6s 6tait telle qu’il Iui a &6 impossible de les dcouvrir, i1 sera trait6
‘article 1645. La controverse porte donc simplement sur Ic
scion
point de savoir si l’acheteur devra prouver que le vendeur connaissait Ic vice, on si le marchand
sera tenu de prouver qu’il ne le connaissait pas.’5
Faribault takes opposition to Pothier, whom he labels as dated:
Cette ragle est plut6t s6vare, mais on se rappellera qu’eIle a &6 formule a une 6poque oas mar-
chands, ouvriers et artisans connaissaient si bien leurs professions ou m&tiers qu’il leur &ait
naturel de garantir ]a qualit6 de leurs produits ou de leur ouvrage…

Bien que cette ragle re~oive encore son application aujourd’hui, on considare que la pr&
somptiona laquelle elle r~fare a plut6r les caractires d’une pr~somprionjuris tantum. 1 sera cepen-
dant toujours assez difficile i un fabricant ou i un marchand splcialis8 d’6chapper A une con-
damnation en prouvant qu’il ne pouvait pas raisonnablement soupgonner que ]a chose qu’il
vendait &ait affect~e du vice qu’on lui reproche.T’

This means that the manufacturer in addition to the specialized merchant
may rebut the presumption against him, a view unshared by most contemporary
jurists.’ 7

As seen above, Quebec jurisprudence also has placed the non-manufacturing
merchant in a separate category. Mignault takes exception to Pothier’s strict
view, and indicates that:

… Ic marchand, contre qui il existe une pr~somption de faute, pourra n~anmoins 6happer a
la responsabilitr des dommages-int&ets en d6montrant que la nature des vices caches 6tait
telle qu’il lui a &6 impossible de les connaltre … Je refuserais de lib&rer le marchand qui ne
ferait que prouver son ignorance du vice, car prcis6ment cette ignorance est une faute. Mais
si Ic marchand (je ne parle pas ici du fabricant) d~montrait qu’iI lui a &6t absolument impos-
sible de connaltre cc vice, malgre les precautions minuticuses qu’il avait adopr~es, ii me semble
que ce serait raisonner trop rigoureusement des termes de notre article.

.

‘5Baudry-Lacantinerie, op. cit., XIX, no. 435.
56Traiti de droit civil du Quibec, XI, p. 395.
17Howcver he is compelled to admit the irrebuttable presumption against the builder in virtue
28Le droit civil canadien, VII, p. 113.

of Art. 1688 C.C.

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In Ross v. Dunstall,19 Mignault, J. elaborates upon this analysis. Here the
learned jurist repeats his view that while a manufacturer is inescapably bound
by Art. 1527 C.C., the ordinary merchant has a way out.20 Several subsequent
decisions lend support to the rebuttable quality of the presumption imposed
upon specialized merchants. 21 The Supreme Court case of Touchette v. PiZzagalli22
contains an interesting obiter by the then Chief Justice Duff:

It is now settled that the seller is responsible in respect of all damages sustained by the pur-
chaser by reason of latent defects where the seller ss either a manufacturer or a person who
deals in, as merchant, articles of the same kind as that which was the subject of the sale.
Unless he can establish that the defect was such that it could not have been discovered by the
most competent and diligent person in his position, his ignorance is no excuse, because it is
conclusively presumed (in the absence of such proof) to be the result of negligence or of in-
competence in the calling which he publicly practises and in respect of which he thereby
professes himself to be competent. 2

19(1921) 62 S.C.R. 393.
” 5Most doctrine and jurisprudence imply that an irrebuttable presumption of knowledge is im-
posed upon the merchant-manufacturer by virtue of Art. 1527 C.C. However it is submitted that
not only is such a contention redundant in practice, it is also unsound in theory because it neglects
the very basis of legal liability for latent defects in the goods sold.

For the seller-manufacturer, ignorance of latent defects is a fault. If he did not discover the
defects, this indicates a lack of skill; and, since the public relies upon his skill, he must be responsible
for resulting damages.
If, however, he did in fact discover the defects, or was presumed to have
discovered them, he is responsible under Art. 1527 C.C. Hence against him the existence of knowl-
edge, actual or presumed, makes no practical difference, since liability is also based upon lack of
knowledge. Moreover, the quality of the presumption is of no practical consequence-if he knew,
was presumed to know, or did not know of the defect, he is nevertheless bound to reimburse for
resulting damages.

In the words of Mignault, J.:
“Consequently it is not material in these cases to discuss the nature of the presumption, either
juris tantum or juris et de jure mentioned by article 1527. If ignorance of a latent defect is in itself a
fault, in the case of the manufacturer who sells a thing manufactured by him, it becomes unnecessary
to determine whether the presumption of knowledge of this defect can be rebutted by him, for,
even if he could rebut it and establish his ignorance, he would nevertheless be in fault..
Ibid.,
at p. 420.

Thus it is contended that the notion of irrebuttably presumed knowledge is redundant, for the
same juridical end is achieved regardless, i.e. he is inescapably bound whether or not we assume a
rebuttable or irrebuttable presumption of knowledge.

It may be argued that this analysis is purely an academic refinement, effecting no practical
difference. However it does avoid a theoretical confusion concerning the very rationale of the
liability. To discuss a presumption juri et de fire is deceiving since it imputes fault only to the
presence of knowledge in the seller-manufacturer, when in reality the very basis of his fault derives
from the lack of knowledge. For the reason a manufacturer-merchant is inescapably bound is not
merely that he should have taken care to discover any defects, and hence is presumed to have known
them, but also that no defects should have occurred in the first place. If they did occur it was due
to his lack of skill. This is precisely why the non-manufacturing merchant is not liable for lack of
knowledge – he did not cause the defects because he did not manufacture the product. However,
since he did handle the product in some way, he should have been prudent enough to have discovered
them – hence the rebuttable presumption of knowledge.

211n Bouvier v. Thrift Stores Ltd. (1936) 74 S.C. 93, at p. 95, Greenshields, C. J. follows Blair v.
Pure Food Stores Ltd. (not reported) and quotes from Anglin, C. J.’s judgment in Samson & Filion
(as noted above).

[1938) S.C.R. 433.
23Ibid., at p. 439.

No. 2]

CASE AND COMMENT

Hall, J. in Legare Auto and Supply Co. and another v. Choquette2 4 held that the
presumption may be rebutted upon proof that the defect was such that its
existence could not have been suspected or discovered with reasonable care.
He introduces a novel concept pertinent to this analysis:

There is therefore, a distinction to be made between the position of a merchant who deals
in a general class of goods, and one who deals in the particular product of a particular manufac-
turer. The former is held to a general warranty against any latent defects, but the latter
should be held only to warrant that the goods are indeed the actual product of the particular
manufacturer .. .he thereby tacitly accepts the warranty of the general reputation of the
manufacturer …

It is impossible for me to accept the general proposition that a dealer is always bound in all
respects to the full warranty of the manufacturer. Such an interpretation of the law would
ma
a eneral business almost impossible. It is perfectly obvious that a dealer in motor
cars has no qualifieation to criticize the design adopted by the manufacturer, or to test the
sufficiency of all the parts entering into the manufacture. He must be held, therefore, to come
within the provisions of the general rule laid down by the Supreme Court that “‘No care
which coldf reasonably be exacted from them would disclose” the alleged latent defecs.”
This has direct application to the material facts of the Gruninger case, for
the Construction Equipment Company (defendant) was a specialized merchant
that distributed and sold Mack trucks it did not manufacture. On this basis
it might be argued that the only duty of defendant was to warrant that the
object was the actual product of the manufacturer,
e. that is was really a
Mack truck. Perhaps that is an extreme position, yet it indicates the important
principle that certain distributors ought not to be bound to warrant the full
quality of goods of which they may not have complete technical knowledges
The public buys a brand name product, and expects uniform quality regardless
of the distributor; surely it is upon the manufacturer that reliance is placed.

Summary

While the law is not settled about all issues regarding the vendor’s liability
for damages as a result of latent defects in the goods sold, nevertheless those
principles which are pertinent to the instant case have been decided authori-
tatively by many French and Ojuebec cases, in particular the Samson 43 Filion
case. Jurisprudence has delineated four distinct categories.
(1) The ordinary
vendor, who is neither manufacturer nor merchant, and does not fall within
Art. 1527 C.C. and hence is excluded from a legal presumption of knowledge
of latent defects. (2) Similarly this article has no application against the

24(1926) 41 K.B. 69.

Ihid., at p. 77 and 78.
Whleus, the lgate Auto and Supply Co. case appears to have posed new questions regarding the
degree of responsibility imposed upon certain single brand and single product distributors. Does it
imply that a distributor, who specializes in the products of only one manufacturer, has the lesser
obligation of merely warranting that the goods were the actual product of the particular manu-
facturer? If this reasoning be extended, is not a greater onus inevitably imposed upon the vendor
who specializes in a particular product, and not a particular brand name of that product? These
questions, which raiseiter
sues of policy, have not yet been resolved. But they are signi-
ficant and should prove a fruitful object of study.

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merchant not selling in his professed field.
(3) At the other extreme, the
merchant-manufacturer is inescapably liable for latent defects in the goods he
sells. (4) The non-manufacturing vendor selling goods “du commerce dont il
fait profession ‘ ‘ 27 is legally presumed to know of the latent defects in the thing
sold. Thus he is liable according to Art. 1527 for all damages suffered by the
purchaser, if the latter was not aware of these defects before the sale, and if
he used the goods for the purpose for which they were intended. The vendor
may rebut this presumption by proving that he was ignorant of the defects
and that it was impossible for him to have discovered them, even if he had
acted with reasonable care, and had taken “prfcautions minutieuses.” 28
Clearly then, the presumption is juris tantum.

It is respectfully submitted that the remarks of Ferland, J. in the Gruninger
et Fils case leave a very different implication: they clearly imply that the
presumption against the specialized vendor is irrebuttable.
In an effort to
emphasize the hidden nature of the defect, the learned judge has also created
the impression that if the seller could not have found the defect he remains
liable, when in fact jurisprudence holds that this very impossibility of discovery
will rebut the presumption. In effect he has returned to the strict liability
position which Pothier held, at least for the manufacturer, a position definitely
influenced by the historical context. 29 Now, since most products are mass
produced and given in gross to distributors, one could not expect every vendor
to employ a permanent expert to test each good sold. Such a contention has
rightly been rejected by Mignault and others. However, it is in the public
interest to ensure that reasonable care and attention will be taken by distri-
butors, especially those who specialize in particular fields which they publicly
profess. Hence, in the event of latent defects, specialized vendors are liable
for restitution of the price, as well as damages caused to goods of the buyer.
But they are discharged from responsibility if they could prove that it was
impossible to discover these defects.

The Gruninger case, however, holds the seller liable whether or not he could
have discovered the latent defects. Hence this decision, if followed, can have
significant commercial consequences. On the other hand, it is hoped that the
courts will not seize upon that principle, but will reject it as contrary to the
spirit and theory of judicial thought since Pothier. In law the remarks are
clearly obiter; they are pronouncements of a court in direct opposition to juris-
prudence of higher authority; they may at any time be overruled. Yet they do
provide an opening, a gap through which the particular fact pattern of one
case may equitably pass, to the subsequent inequity of future decisions. For
the legal realist this has occurred often in the past; but for the legal theorist it
ought not to occur again in the future.

27Pothier, Vente, 213.
28Mignault, op. cit., VII, p. 111-112.
29Supra, note 16.