Page 242 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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EARLY MODERN DUTCH LAW
hard to tell from this case whether the tendency to endow the remedies for latent defects with the aedilician periods of limitation, as seems to have been the majority view in Roman-Dutch legal doctrine, was carried through in Roman-Dutch courts. At least Bijnkershoek did not think so.
5.2.1.4 Favourable characteristics of the aedilician remedies
From the sources studied in the second chapter it appeared that early modern Castilian civil law discarded the aedilician remedies' penal character. Furthermore, it allowed only by means of contractual agreement that in the event of multiple sellers each one could be held liable for the entire performance.135 A relatively large number of humanist scholars, contrariwise, upheld the medieval ius commune rule based on D. 21.1.44.1 that when a sale was concluded with multiple sellers, the buyer could sue any one of them for full compensation, if the merchandise proved to be defective. Furthermore, unlike their Castilian colleagues they regarded the aedilician remedy for returning the thing as penal.136 Finally, legal humanists did not question the text in the Corpus iuris civilis according to which the aedilician remedies could be brought against ignorant sellers.137 In this section I will further explore to what extent Roman-Dutch and Roman-Frisian scholars paid heed to these particular features. Did they think it worth to keeping them intact? If not, what urged scholars to abolish them?
Vinnius touches nowhere upon the rule that where a buyer bought from multiple sellers, it sufficed to sue the seller who had the biggest part in the deal in order to retrieve all his loss. With regard to the aedilician remedies' supposed penal character Vinnius repeats the humanist Doneau and mentions that the remedies for latent defects have never been penal. The condemnation in duplum only indicates that the remedy for the defective thing the buyer brings with the action on the contract consists of two parts.138 In keeping with Doneau, Vinnius has the actio empti adopt some but not all features of the aedilician remedies when it is brought to remedy latent defects.139
Neither Van Leeuwen in his Censura, nor Grotius in his Inleidinge mention the aedilician favourable characteristics. Grotius remarks that punishment has become the
attention to limitation issues.
135 See 3.3.1.4.
136 D. 21.1.45; see 4.2.1.4.
137 D. 21.1.2; D. 19.1.13pr. by most scholars being explained away as aedilician remedies cloaked in the
civil dress of the actio empti. See 4.2.3.
138 Vinnius, Jurisprudentiae contractae, 2.15, p. 246: \[note e\]... actionem redhibitoriam duplicem habet
condemnationem, sic accipiendum est, habere aliquando, condemnationem duarum rerum nomine,
unam de pretio et accessione, alteram de non praestita liberatione'; cf Doneau's view in section 4.2.1.4.
139 Vinnius, Jurisprudentiae contractae, 2.15, p. 246: 'tertium caput praestationum huius generis est, ut res tradatur incorrupta... quoad eius ex bona fide fieri oportet. Huius generis incommoda sunt quator; morbi; vitia; servitutes; tributa. Non una autem horum omnium obligatio est. De moribis et vitiis rerum cavetur edicto Aedilium'; Cf. Donellus, Commentarii, vol. 7, book 13, ch. 3, ยง1, p. 390: 'Tertium caput praestationum huius generis de re vendita est, non solum ut res ita tradatur, quo eam recte habere liceat. Id est ut tradatur incorrupta, & ab omni onere rei ius minuente libera, quoad eius ex bona fide fieri
oportet'.
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