Page 238 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
in his Commentary.'118
Wissenbach even more frankly admits to disagree with Doneau in his discussion of
the Codex text 4.58.2 in which a buyer of a runaway slave asked the Emperor for a remedy against the seller of the fugitive. According to the text, one year had passed since the slave had taken his heels. Could the buyer still bring a remedy? Asked for a solution, the Emperor's answer was that he could not envisage one now that one year had passed. Doneau had interpreted this rescript as referring to both civil and aedilician remedies. In doing so, he explicitly refuted Bartolus' interpretation that the rescript should be read in accordance with the title under which it was placed in the Corpus iuris, sc. 'On the aedilician actions'. Placing it there was only Tribonian's doing to which a humanist as Doneau thought himself no longer bound.119 Nonetheless, Wissenbach harks back to exactly this medieval interpretation of C. 4.58.2.
'The civil remedy for price reduction is perpetual, D. 19.1.13pr. and D. 21.2.56pr. Doneau is of a contrary opinion. In the sixth chapter of his Treatise on the aedilician edict he concludes with reference to C. 4.58.2 discussed here, that this remedy is limited to one year. Furthermore, he concedes that it is possible to sue on the contract on the same ground as it is possible to sue on the edict, but unsurprisingly he is defeated by D. 19.1.13, and D. 19.1.11.3. Nevertheless, he equips the same \[sc. remedy on the contract\] with a limitation for both, which is in flat contradiction to D. 21.2.56pr. Moreover, C. 4.58.2 does not change that text's meaning because it pertains to the aedilician remedies. Although this constitution appears to be of general import and to exclude the longer limitation period, its meaning must still be restricted to the aedilician remedies, by reason of a rubrical argument, see the Gloss, Azo, Faber and many Doctores'.120
Wissenbach argues that the grounds on which the civil and aedilician remedy for returning the thing can be brought differ. This should follow from D. 19.1.11.3, which text he explains in his Exercitationes.
'Redhibitio there \[sc. in D. 19.1.11.3\] does not indicate the aedilician remedy which lies for diseases and defects in a thing, but a simple redhibitio which can be obtained after the sale has been rescinded by an action on the sales contract, see D. 19.1.11.5 and 3, Accursius on the same text'121
118 Wissenbach, Exercitationes, no. 9, p. 409: 'Aedilitiae sunt temporariae, ut dictum. Civiles sunt perpetuae, d l. Si dictum, 56. Diff. Donell. in Com. 3. sect. quibus non praestitis. in fin. \[Donellus, Commentarii, vol. 7, book 13, ch. 3, § 10, p. 395\]';
119 See 4.2.1.3.
120 Wissenbach, In libros quattor, pp. 820-821.'Civilis ex empto actio Quanti minoris, l. Julianus 13pr. D. de
act. empt. est perpetua, l. si dictum. 56. D. de evict. Contra Donell. qui in tract. de aedil. ed. c. 6. annali praescriptione eam concludit, per h.n. l. 2. Fatetur quidem, ex empto agi posse ex eadem causa, qua ex edicto, victus nimirum d.l. Julianus, 13, l. Ex empto, 11, § redhibitionem. 3, d.t. de act. empt. Sed eandem \[sc. ex empto actionem\] utriusque praescriptione statuit: Cui repugnat prorsus d.l. Si dictum. Nec mutat h.l. 2, quia ad aedilitias actiones pertinet. Licet enim videatur esse generalis, tempusque omne longius excludere, tamen, argumento rubricae, ad aedilitias actiones restringenda est. Glossa, Azo, Fab. et Dd. plerique, J.J.
121 Wissenbach, Exercitationes, disp. 51, no. 9, p. 409: '... ibi non significatur actio aedilitia ob morbum 230