Page 243 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CHAPTER FIVE
exclusive prerogative of the authorities. This makes it difficult to accept that the aedilician remedies involved penalties.140 It is also tempting to think that the early modern Castilian and Doneau's deductive system of sales law have induced them to deny that the buyer- friendly features flow naturally from the sales contract.
A clear statement in this respect is made by Groenewegen van der Made. In his Tractatis de legibus abrogatis ac inusitatis in Hollandia, he reasons that the aedilician remedies do not allow for a claim for the entire sum against each individual seller, because the action on the sales contract does not.
'Just as the action on the sales contract lies against each seller individually for his share in the deal, where they were partners in business \[D. 21.2.39.2\], even so according to our custom the action does not lie against him who has the biggest share in the sale. In so far I deem that that provision should be abolished, cf. what I said about Inst. 4.7.2' 141
This remark – for which Groenewegen van de Made was scoffed as 'Mr Abolishment' by Huber142 - sheds light on the general feeling that the aedilician provisions were merely a supplement to the civil action on the sales contract. Where the latter functioned satisfactorily and there was no need to adjust it, the aedilician characteristics accordingly gave way. This was also noted by Voet.
'Although according to Roman law it was possible to carry out a full returning of the thing with one out of many sellers, sc. with the one who was the owner in the thing for the greatest part, or than who's share no one had a greater, D. 21.1.44.1, that is not observed nowadays. One needs to litigate against all for their respective share in the thing sold, as Groenewegen puts it in his comments to D. 21.1.44.1.' 143
However, Voet in his Compendium iuris mentions that account had to be taken of the aedilician remedies' other distinct feature, viz. their penal character.
'Although there is also a remedy granted on the sales contract because of defects, D. 19.1.11.3 and D. 19.1.2.1 in fine, that is no reason to assume that these aedilician remedies are superfluous, both because they are more severe, especially when they entail a condemnation for the double by reason of the seller's contempt of court, D. 21.1.23.4, D. 21.1.45. Moreover, it occurs frequently that multiple actions become
140 Gotius, IBP, 2.20.14: 'non tutum sit Christiano homini privati sive sui, sive publici boni causa poenam sumere de improbo quoquam praesertim capitalem, quanquam id iure gentium nonnunquam permitti diximus... '.
141 Groenewegen van der Made, Tractatus, to D. 21.1.44, p. 164: 'Quemadmodum actio ex empto cum singulis est pro portione, qua socii fuerunt, hic l. 39, minor, §2 si a. tit. seq. ita et moribus nostris in eum, cuius pars, quamvis maxima, in venditione fuit, in solidum aedilitias actiones non competere, adeoque et hanc l. abrogandam censeo, per ea quae dixi in §. 2. eadem. Inst. Quod cum eo qui in alien. potest.',
142 As quoted by Voorda: 'Ita Groenewegium, facillimum, ut ait Huber, iuris abrogandi auctorem, censere, nemo mirabitur', Voorda, Dictata, to D. 21.1, p. 774
143 Voet, Commentarius, to D. 21.1, no. 7 , p. 743: 'Quamvis et uni ex pluribus venditoribus, qui maiore ex parte dominus fuit, vel quo maiorem partem nullus habuit, res in solidum redhiberi ex iure Romano potuerit, l. iustissime 44. §I, ff. h.t. quod tamen hodie non servari, sed singulos pro sua tantum parte conveniendos esse, vult Groenewegen ad. d.l. 44. § I'.
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