Page 110 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
each on its own and for the remaining that during litigation occurred \[?\], I demand and entreat, to the extend to which the said verdict is detrimental to my party, to annul and revoke it'.146
In his petition to the Royal Chancery Hortiz takes pains to deny that there is a defect which reduces the horse's worth or may allow for the remedy for returning the thing (accion rredebitoria \[sic\]). Yet, he does not do so by referring to the merchandize's non- corporeal character, as would be the most obvious defense from a ius commune- perspective. Hortiz simply puts that there was no defect at all. In other words, had the veterinarians said that the horse was not in order, the actio redhibitoria might well have been available, despite the non-corporeal character of the defect for which the actio redhibitoria was manifestly denied in medieval ius commune-doctrine.
Moreover, it appears that good faith shields the seller from the remedy for returning the thing. It is not for nothing that the plaintiff explicitly held that Hortiz had kept silent ( por avia las callado) about the horse's stubborn character and that De Hortiz himself emphasises that he had acted bona fide.147 Hence it seems that D. 21.1.1.2 which states that the actio redhibitoria can also be instituted against sellers who were not aware of the defects is ignored. The mentioned remedy looks more like the remedy triggered by fraud which had caused the contract to be null (dolus dans causam contractui).148
3.3.1.2 Assessment of price reduction
Medieval ius commune was ambiguous concerning how the price reduction a seller of a defective thing is due should be assessed. Some medieval scholars held that the Corpus iuris civilis on the one hand contained a civil price reduction based on the buyer's subjective appreciation of the object and that on the other hand there existed an aedilician remedy for price reduction which had to be assessed by objective standards, commonly understood as the thing's current market price. Other medieval scholars, one of whom was Pierre de Belleperche, were of the opinion that the Corpus iuris civilis only allowed for an objective price assessment.149
The Siete Partidas explicitly opt for the objective assessment of price. The seller has to grant a price reduction 'quanto fallassen en verdad que valia menos por razon de tacha...', in Latin, 'quanto minus valet res', sc., how much the thing is worth less because of the defect, as opposed to 'for how much less one would have been seller'.150 López, the
146 Pl. civ., F. Alonso (f.), caja 494, 3 (1571), scan 146: \[sc. 146\] el cavallo sobre que es este pleito entre albeitares | y personas expertas en semejante arte no es defeto ni | tacha bastante porque valga menos ni aya lugar la | accion rredebitoria / por las quales razones e qualquier de-| llas e por las demas que de lo procesado | rresultan \[abia algo?\] pido e supplico en quanto lo susodicho en la dicha sentencia | es perjuicio del dicho mi parte la anule e rreboque ...'.
147 Pl. civ., F. Alonso (f.), caja 494, 3 (1571), sc. 8 (fol. 3r): 'compro y al cara conto quel | dicho cavallo no sufre es- | puelas y se comporte muy rri- | xoso por las quales | tachas | e por cada una dellas por | avia las callado el dicho pedro| hortiz de villa lones \[my emphasis\]',
148 Molina, De iustitia et iure, vol. 2, disp. 259, no. 6, p. 17.
149 See 2.2.1.2.
150 SP 5.5.64, in: Los códigos españoles, vol. 3, p. 631: '...a aquel que le vendio la bestia que le peche o le
torne tanta parte del precio quanto fallassen en verdad que valia menos por razon de tacha...'; on the 98