Page 36 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CHAPTER TWO
'flood, or even better, smoke of opinions', which it had as its result.4
Before beginning the exploration of medieval legal scholarship, a difficult point with regard to medieval ius commune needs mentioning. It concerns the extent to which 12th and 13th century medieval scholars wrote for the legal practice of the time. Some early examples of what seems to be a reception of ius commune as it developed at Bologna's university are known.5 Yet, a lack of sources concerning 12th and 13th century legal practice makes it hard to gauge the exact scope of the reception of ius commune- theory in medieval legal practice. The discussion about the practical significance of what medieval ius commune-scholars wrote lies beyond the scope of this book, as it is only concerned with the influence medieval legal doctrine exercised on early modern legal theory and practice. Nevertheless, when reading the following pages, the reader should be aware that it is not at all clear whether what was written by Azo, Accursius and their contemporaries about latent defects truly reflects how medieval practice actually dealt with the matter.
This chapter addresses some problematic points involving legal remedies for a buyer or lessee of a defective thing according to Justinianic Roman law as set out in this book's methodology.6 Section 2.2 deals with how medieval ius commune-scholars approached the obscure Digest and Codex texts about the remedies for latent defects in the thing sold. Section 2.3 explores the same process of interpretation for the remedy for lesion beyond moiety. Before summarising the findings in section 2.5, section 2.4 analyses the differences detected by medieval legal scholars between remedies for latent defects and the remedy for lesion beyond moiety. Further on in this book, it will become apparent that medieval legal scholarship paved the way for the simplification of the intricate Roman law rules governing the law concerning latent defects and lesion beyond moiety.
4
5 E.g. in gloss 1.7.19 to the Lombarda by Karolus de Tocco (12th/13th century). Tocco, Leges longobardorum, fo. 16rb-16ra; for biographical details see G. D'Amelio, 'Carlo di Tocco', in: DBI 20 (1977).
See 1.2.2.
22
 6
Cantiuncula, De ratione, p. 57: '.... opinionum fluctus aut verius fumos...'; about the medieval approach to law see: Piano Mortari, Dogmatica, 1976, p. 10; for biographical details see Wolf, Erik, "Cantiuncula, Claudius", in: NDB 3 (1957), p. 128.

























































































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