Page 185 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 185

CHAPTER FOUR
virtually being the owner of the good, he can bring an actio redhibitoria. This is the case in long-term lease and in emphyteusis.117 Yet, Dumoulin still clings to the idea that the aedilician remedies were originally intended for the sales contract only.
'You must understand that the actio redhibitoria comes as a subsidiary action, because the aediles did not possess the judicial competence. Since the case is similar, an analogous action is granted, D. 19.5.21. Likewise, this subsidiary action can be brought under the innominate contracts, as Baldus teaches in C. 4.64.3, quaestio 15'.118
Such subtle reasoning as one encounters in Dumoulin's treatise are wasted on François Hotman (1524-1590).119 Reading Ulpian's text, Hotman asks himself the following:
'... but if I lease a house for five years and I find out in the first year the house is rotten, unwholesome, bad for your health, then why, as they say, can I not bring proceedings for returning, so that the landlord takes back the house and we rescind the contract for lease?... But let us have a look whether there is not something neglected, since it is very easy to say that after a rescission of a sale in which the buyer returns the thing and the seller the price there is a redhibitio, because both parties had something, because redhibere means bringing about that both parties return what they had gained, D. 21.1.2... In lease we do not speak about 'having something' (habere), but about 'enjoying something' (frui)... and neither he who leases out has the will to give up his possession, nor he who leases to acquire it. Hence, it is not strange that wherever there is no having, there is no returning (redhibere). A second argument is that in a sales contract there is an idea of evenly gaining and regaining something. After all, the buyer got something of equal worth in possession from the seller, as the seller got from the buyer, because the price equals the quality and quantity of the things, as Paulus says in D. 18.1.1pr. Therefore, just as the contract effectuates an equal profit to both, so a redhibitio, which is a rescission of the contract, brings about the same state.... But in this contract \[sc. lease\] the profits are not the same on both sides, because neither does the lease equal the thing, nor is there an equal state on both sides after a redhibitio has taken place. After all, the tenant returns the house, i.e., the right to use it for five years, but the landlord returns nothing if the rent has not been paid yet, or, if he accepted a one year's rent in advance, he returns something that is not to be equaled to a five-year period. In only one case is there something of equality in redhibere, which is, of course, if the landlord accepted the entire five years' rent in advance. Well, what need is there for other arguments in a case as crystal clear as this?'120
117 'Long-term lease of an imperial domain or of private land for a rental in kind', Berger, Dictionary, p. 451.
118 Molinaeus, De aedilitiis actionibus, 2.9, no. 11, p. 200: 'Intellige verum, quod competit actio redhibitoria in subsidium: quia aediles non habebant hanc iurisdictionem. Cum casus sit similis, datur in factum, l. quoties. ff.de praescr. ver. \[D. 19.5.21\]. Eodem modo haec subsidiaria habet locum in contractibus
innominatis, docet Bald. in l. ex placito, q. 15, C. de rer. permut \[Baldus, Commentaria, to C. 4.64.3, fo
136\]'.
119 A. Leca, 'Hotman, François', in: Dictionnaire, pp. 409-411.
120 Hotomanus, Observationes, ch. 17, fo 92: '... tamen si aedes in quinquennium conduxero, ac primo anno
deprehendero esse pestilentes, insalubres, male sanas, quid mihi (inquiunt) non liceat agere redhibitoria,
 175






















































































   183   184   185   186   187