Page 210 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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LEGAL HUMANISM
4.4 Remedies for latent defects vs the remedy for lesion beyond moiety
Not many 16th century humanists explored the relationship between the remedies for latent defects and the remedy for lesion beyond moiety. This is rather surprising, since, theoretically, the remedies overlap in the event a thing being bought as sound turns out to contain a defect which reduces its worth by more than half its just price. Which rule applied in the event of such concurrence of remedies? Which method determined the applicable limitation period? Did differences in price assessment still hold in such cases? Did these remedies exclude each other or was it possibile to choose between them? And so forth.
One of the few scholars who gives a glimpse of awareness of similar issues, Sichardus, excludes the remedy for lesion beyond moiety in the event of animals, 'because in those cases, we have other remedies, as the remedy for returning the thing and the remedy for price reduction, \[D. 21.1.25\]'.232 Schrader, in one of his consilia, contemplates that the remedies for latent defects are granted, if the damage the defects have caused does not exceed half of the thing's just price. Hence, the remedies for latent defects pose an exception to the general rule that outwitting each other is allowed in sales as long as the damage incurred remains within the limits set by the ius commune- interpretation of C. 4.44.2.233
One topic discussed in this chapter demonstrates an approximation of the remedies for latent defects and the remedy for lesion beyond moiety. Both allow for keeping the contract intact but at the same time indemnify the duped party by granting a price reduction. One central question which then arises is how the price reduction which one is due should be determined. The answer was the same for the price reduction due to a latent defect and the one coming in the wake of the remedy for lesion beyond moiety. It became well-established that the reduction had to be calculated by objective standards. Arguing from D. 35.2.63 which determined that personal feelings toward the item have no place in determining its value humanist scholars favoured either the item's common market price or what experts thought it worth. This formula was applied to both the buyer who sued for price reduction because of lesion beyond moiety as well as to the buyer who sued on the grounds of a latent defect in the thing.234
   Regarding the limitation of the various remedies, humanist legal doctrine presents a
 rather jumbled picture. Some scholars accept both the existence of civil remedies for latent
 defects which last for 30 years as well as the short-lasting aedilician remedies. Other
 scholars, such as Doneau, only accept a six-months and one-year limitation for the
 remedies for returning the thing and price reduction, irrespective of their being civil or
 aedilician. The periods fixed for the remedy for lesion beyond moiety, however, range from
 30-years to four. Hence, the question remains whether a buyer who had bought a thing
 232 Sichardus, Dictata, to C. 4.44.2, no. 4, p. 461: '... quia in istis casibus habemus alias actiones, ut redhibitoriam et quanto minoris'.
233 Schrader, Consilia, vol. 2, cons. no. 18, p. 758: 'Namque propter illam laesionem \[sc. ex vitio\] laeso actio ad id quod interest, indistincte datur, licet illa laesio sit infra dimidium'.
234 See 4.2.1.2 and 4.3.3.
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