Page 40 - 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
therefore, had rejected the aedilician remedies in the event of slaves inclined to steal, as just observed above.
Bartolus († 1357) adopts Azo's view that the civil action for price reduction is not granted against ignorant sellers of slaves inclined to steal. The buyer could only sue the seller, if he had warranted that the slave was not a thief.21 Baldus († 1400), in his commentary to D. 19.1.13(14).3 similarly holds that only a seller who had specifically warranted the slave not to be a thief is liable, if the contrary proves to be true. 'Someone who is unaware that he sold a thief, is liable, if he himself had guaranteed that the slave was of blameless behaviour'.22 Neither Bartolus nor Baldus discuss the thieving slave in their comments to titles D. 21.1 and C. 4.58 on the aedilician edict and its remedies.
From what Paulus de Castro (†1441) writes in his comments on D. 19.1.11.323, it follows that he too saw the aedilician remedies as having their own field of application. Nonetheless, he concluded so from something else than the edict's limited range. According to Baldus' one-time pupil De Castro, the aedilician remedy for returning the thing applies to defects in the object sold, whereas the civil remedy for returning the thing can be instituted, if a substantial quality of the thing is lacking, which is not really a redhibitio triggered by a defect, but a rescission of the sale because of error.24 No longer considering whether the defect was corporeal or not, De Castro shows himself to be a herald of legal humanism in which the first signs of a breach with medieval ius commune-doctrine present themselves.
2.2.1.2 Assessment of price reduction
Another ambiguity in the Corpus iuris civilis relates to how the price reduction in the event of a latent defect was to be calculated. The Digest texts in title 21.1 refer to a
21 Bartolus, Commentaria, to D. 19.1.13(14)pr, no. 1, fo. 126v: '...ignoranter tenetur quanto minoris. Fallit in servo fure. h.d. cum § se \[D. 19.1.13(14).3\]...'; idem, to D. 19.1.13(14)pr., no. 5, fo. 126v: 'Item fallit in servo fure ubi in nullo tenetur ignorans, ut hic. Ro\[gerius\] dicit glossa quia quilibet debet scire servum esse furem' .
22 Baldus, Commentaria, to D. 19.1.13(14).3, fo. 143v: 'Vendens servum furem ignoranter, tenetur si ipsum assererat bonae vitae, h.d. usque ad § si venditor'; Baldus refers to the gloss in his comments to D. 21.1.31.1, fo. 165v. : 'nota notabilem glossam, quae incipit cur secus et caet'.
23 D. 19.1.11.3: 'Redhibitionem quoque contineri empti iudicio et Labeo et Sabinus putant et nos probamus'.
24 Paulo de Castro, Lectura super Digesto, fo. 102v: 'Haec actio competit ad resolvendum contractum vel ex eo quod res vendita sit morbosa quo casu dicitur proprie redhibitio et hic locum titulus de ed. edic. sive non sit morbosa sed deficit qualitas substantialis ut quia venditur ancilla tamquam virgo cum non sit quo casu non dicitur proprie redhibitio nec hic locum titulus de edi. edic. tamen potest agi ad resolutionem contractus hoc casu...': cf. Schermaier, Die Bestimmung, p. 58.
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