Page 166 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 166

LEGAL HUMANISM
'Well then, will there be no remedy for non-corporeal defects at all? On the contrary, there will be one under sales, if the seller promised to deliver the things \[without\]34 defects or if he knew about the defect but kept silent. Accordingly, when we say that there is a remedy based on sales for the buyer's full loss (ex empto in quod interest), we understand that the reason is that the seller has not fulfilled the obligation which he was under a duty to fulfil, as stated in D. 19.1.1.1pr.'.35
Hence, the sole possibility of suing the seller on the basis of a non-corporeal defect in the object sold is under the contract and only then, if he he had acted in bad faith.36
'With regard to the defects and deficiencies of sold things and the concomitant obligations and actions from which we said that they have been introduced by the edict, we have to draw attention to the fact that these pertain to all the defects and deficiencies stated in the edict but not to non-corporeal defects, e.g. if a slave is fickle, sullen or stiff-necked or cattle skittish or kicking. Consequently, in the event of such kind of defects it is not possible to sue under the header of a remedy for returning the thing or price reduction against an ignorant seller; it is only possible to bring an action on sales, if the seller was aware of the non-corporeal defect or if he had not declared the defects, see D. 21.1.1.10, 11 and D. 21.1.4.4'.37
Similar to Wesenbeck, Doneau also rules out the aedilician remedy for price reduction in case of corporeal defects. Doneau more clearly draws this inference from the text of the edict, which was introduced to exclusively remedy sales of defective cattle and slaves. Moreover, Doneau emphasises that the civil remedy only lies when the seller has been aware of the defect or had warranted the defect's absence.
Although the substantive outcome of Doneau's investigation is for the major part in conformity with medieval doctrine, Doneau reached his results by means of studying what moved the aediles to decree as they did. This historical approach is distinctly humanist. Medieval scholars had not concerned themselves with the chronological sequence of the various texts in the Digest. The simple fact that the aedilian remedies and civil action were part of one constitution issued by Justinian in 533 A.D. in which he had turned various Digest fragments into law, left the medieval mind no room for speculations about their
34 The negation is missing in the text but Doneau's reference to D. 21.1.4.4 (nisi si dictum est hoc abesse et non abest) makes it clear this is a type-setting mistake.
35 Donellus, In titulum, to D. 21.1, p. 275: 'Nullane igitur propter animi vitia actio erit? Imo vero erit ex empto, si aut venditor se praestaturum \[non\] esse vitium promisit. Ex empto autem actionem cum dicimus in quod interest intelligimus, quia factum non est quod fieri debuit, l.I.in prin. de act. empt'; idem, Commentarii, vol. 7, 13.3, § 16, p. 399.
36 That early modern scholars adhered to the aedilician edict's limited scope is also acknowledged by Vecchi. Vecchi, ‘La garanzia’, p. 73.
37 Donellus, Commentarii, vol. 7, 13.3, §16, p. 399: 'Illud de morbis & vitiis rei venditae monendi sumus, deque iis praestationibus & actionibus, quas eo nomine constitutas edicto esse diximus, pertinere omnia ad morbos & vitia corporis, de quibus edictum loquitur; ad vitia animi non pertinere. Veluti, si servus venditus sit levis, iracundus, contumax: si iumenta pavida aut calcitrosa. Itaque horum nomine non competere redhibitionem, aut actionem quanto minoris adversus ignorantem venditorem: solum ex empto agi posse, si sciens vitium animi venditor, non pronunciasset, l. I, § pen, § ult. in fine, \[D. 21.1.1.10 and 11\], l. 4.§ idem Pomponius, § in summa, D. de aed. ed. \[D. 21.1.4.3 and 4\].'
 156
























































































   164   165   166   167   168