Page 180 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 180

LEGAL HUMANISM
separate remedies for price reduction to this text. How could these be accounted for?
'What about what Julian says \[in D. 19.1.13pr\] that if he \[vid. the seller\] acts while being ignorant he must compensate to the value of how much less the buyer would have bought the thing, had he known about the defect? Does not this duty flow forth from the civil action on the sales contract which perpetually lies? To this I give the same answer which I gave while discussing the remedy for returning the thing. A price reduction has been introduced under the sales contract based on the edict, because it has been ordained by the aediles that the seller should be obliged to give back to the buyer what he would have paid less. Whichever performance owed to the buyer can by custom or by law or by whatever other ground be pursued in proceedings based on the sales contract. However, likewise I confirm that all is under the following condition, vid. that it is possible to sue on this ground on the sales contract in accordance with those same provisions as have been laid down in the aedilician edict, namely, that it is not possible to start proceedings after one year, beause after one year has passed, nothing remains that the seller owes the buyer from a legal point of view'.93
The remedy for price reduction was first introduced by the aedilician edict. Consequently, whether it is the civil or aedilician, it receives its features from the edict alone and has a limitation period of one year. In his Commentarii, Doneau uses the same argument to fix the limitation of the remedy for returning the thing on six months.94
Besides the ius commune-tradition, local custom frequently applied its own limitation periods to remedies for defective goods in sales. Antoine Mornac (1554-1619), a commentator of the jurisprudence of the Parliament of Paris95, states that in sales of horses the buyer has only nine days to come back on the bargain.96 In the German regions statutory law also significantly curbed the limitation periods for rescission because of a latent defect for draught animals.97
93 Donellus, In titulum, to D. 21.1, p. 307: 'Quod ergo est, quod Iulianus ait, si quidem ignorans fecit, id tantum actione ex empto praestaturum, quanto minoris emptor empturus fuisset, si ita scisset? An non ex empto actio civilis, eoque etiam perpetua est? Ego de hac re idem, quod de redhibitione respondeo: ex empto actionem induci ex hoc edicto in id quanto minoris, quia id inductum sit ab aedilibus, ut emptori propter emptionem praestaretur, quanto minoris empturus esset. Quaecunque autem emptori praestanda sunt, vel more, vel iure certo, vel quocunque alio modo iudicio ex empti peti possunt. Sed idem affirmo hac conditione, iisdemque legibus ex empto agi ex hac causa posse quae aedicto aedilium constitutae sunt, ut ultra annum agi non possit, quia nec sit post annum, quod emptori ullo iure praestari debeat'.
94 Donellus, Commentarii, vol. 7, book 13, ch. 3, ยง10, p. 395.
95 Mornac was a lawyer to the Parlement of Paris who wrote a comparative survey of Roman and France
law. See Augustin, 'Mornac, Antoine', in: Dictionnaire, p. 580.
96 Mornac, Observationes, to D. 21.1.19.6, p. 469: 'Apud nos in venditione equi novem tantum dies dantur,
ut redhibeatur'.
97 Klischies, Entwicklung, p. 55.
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