Page 30 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 30

CHAPTER ONE
only a liability limited to the value of the good or whether he nonetheless has to pay all the buyer's loss? After all, some Digest texts suggest the first, others the second. Which factors had to be taken into account?
The buyer's knowledge is also considered relevant in the Digest titles on sales and the Aedilician Edict.39 Buyers who are aware of the thing's poor quality should refrain from complaining after knowingly concluding a sale of a defective thing. Later scholars further discuss how knowledge of the defect has its repercussions on liability. It will appear that the degree of fraud which is needed to be able to hold a seller liable differs from time to time and from period to period. D. 19.1.6.4 about the sale of a defective barrel will become the pivot of various arguments for or against relating the seller's liability to his knowledge and behaviour. This study investigates that process.40
(4) A fourth controversial topic relates to the fact that the Corpus iuris civilis contains texts specifically providing for remedies for encumbrances on immovables.41 The outlook of these remedies differs slightly from that of remedies which are at the buyer's (or lessee's) disposal in the event of sales (or lease) of movables. This difference sparked a debate from medieval times to the era in which the first civil codes appear about whether or not a liability regime for sellers of immovables different from the regime for sellers of movables should be upheld.
(5) Lastly, besides the civil and aedilician remedies for defects, the Corpus iuris civilis has a remedy which a seller of land can bring, if his loss amounts to more than half the just price of the land he had sold. In that case, the seller can institute a remedy for lesion beyond moiety (laesio enormis), spelled out in C. 4.44.2.42 Although in pre- Justinianic and Justinianic Roman law this remedy is not available to buyers and therefore does not concur with the aedilician and civil remedies, this remedy will, at a later stage in legal history, prove pivotal to the development of the law concerning defects in things exchanged for money.43 Soon after the reappraisal of Justinian's Corpus iuris civilis, medieval scholars begin to extend C. 4.44.2 to buyers of both movables and immovables alike. They grant a buyer a remedy, if, due to a defect, he had paid an excess amounting to more than half the thing's just price. The buyer can sue the seller on the grounds that the sale has caused him to suffer an enormous prejudice.
However, this extension gave rise to difficulties. How was this extended remedy for lesion beyond moiety to be demarcated from the remedies for latent defects? After all, both civil and aedilician remedies and the extended remedy for lesion beyond moiety could both be brought when a defect had caused a prejudice of more than half the thing's just price.
39 D. 21.1.48.4; D. 21.1.1.6; D. 21.1.14.10; Dilcher, Leistungsstörungen, p. 224.
40 Questions about how and when the seller's knowledge is proven lie beyond the scope of this study.
Roman law, as it has come down to us, hardly discloses information about these issues (Hohmann,
'Presumptions', p. 1), so that subsequent legal theory based on the Roma legal heritage does so neither.
41 D. 19.1.21(22).1(tributum); D. 21.1.61 (servitude); C. 4.49.9 (capitatio); Cf. Hallebeek, 'The Ignorant
Seller's Liability', p. 215.
42 Though ius commune-scholars often discuss the matter under D. 18.5.
43 For a detailed discussion of this development see 2.3.
 14




















































































   28   29   30   31   32