토마스 아퀴나스와 매매에 있어 하자의 고지 의무 －로마법, 신학대전, 현행 민법의 연결 가능성을 중심으로-

초록

There are a few questions reviewing private law in Summa Theologica of Thomas Aquinas, among which II-II q.77 a.3 is dealing with the question of ‘the seller has the obligation to inform the defect in the object sold.’ St. Thomas discriminates between ‘latent defect’ and ‘patent defect’, and in the case of ‘latent defect’ it is said that the seller has to inform the defect when he knows the existence, but in the case of ‘patent defect’ to the contrary. According to St. Thomas, though the ‘iustum pretium’ is drawn from the equivalence of the sale, the obligation to inform the defect is deducted from ethical duty. And he differs the defect of the thing from the outer circumstances. The base of the this conclusion must be Roman Law. In the early 12th century, discovering the ‘Corpus Iuris Civils’ accelerated the study of Roman Law, so that it has heyday in the 13th century. It is said that Roman Law has influenced a lot on the legal culture and legal recognition of european countries even though the extent would vary from country to country. In Roman Law, the distinction between patent defect and latent defect was accepted that the purchaser has to examine the object of the sale and buy it based on his scrutinization, and in the case of latent defect the seller knowing the existence of the defect has the obligation to inform. This responsibility system came from the edictum of aediles, which stays in our Civil Code as it was. The conclusion of our civil law is very similar to that of St. Thomas. Many provisons and cases are based on the notion that the buyer has the obligation to examine the object by himself, and the distinction between latent and patent defect can be found easily. In the cases of sales, some conceded the obligation according to empirical rules, and the others as an ancillary obligation of sale. Therefore, in some the tort was at issue, but in the others non-performance of the contract. This article ends up with grasp the meaning of the II-II q.77 a.3, the basic rule of Roman Law, and the conclusion of our civil law. The study to connect these three points and the exegese of the individual cases of the Roman Law and our precedents is left to the object of the following study.

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