Page 47 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 47

2.2.2 Extension to lease
MEDIEVAL IUS COMMUNE
 Considering the sources, there does not appear to have been much of a debate about
 the issue among medieval glossators and commentators. Nevertheless, as outlined in
 the following chapters, this would change. The aedilician remedies' penal character
 became increasingly problematic as scholastic thought gradually gained ground in early
 modern legal debate. Its content was not easy to square with the idea of inflicting more
 harm on another than one had incurred, which is inherent to penalties.
D. 21.1.63 is rather straightforward:
'Ulpian in the first book to the aedilician edict: You should know that the edict pertains to sales only. Not just sales of slaves, but of other goods as well. Why nothing has been promulgated for lease, seemed something to wonder about. However, this reasoning is given: either because there has never been legal competence for them \[the aediles, NdB\] for that subject, or because lease is not carried out in the same manner as sales'55.
Hence, the aedilician remedies could not be brought by a lessee who had leased a thing that turned out to be of bad quality. Yet, common sense might propose to extend the remedies to other contracts as well. After all, what difference in damages is there between that suffered by a duped buyer or by a duped lessee when the thing they have received turns out to be of bad quality? As the lease contract occupied an important place in the legal culture of the Middle Ages, it would not be surprising that the question whether the remedy for returning the thing could be extended received ample attention in medieval legal doctrine. However, again the matter was left undecided. Accursius in the gloss fiunt to D. 21.1.63 remarks that 'after all, in lease one does not intend to transfer property, as one does in sales, see above D. 19.2.39(42)'56. Thus, he appears to argue that the conveyance of ownership is crucial to applying the aedilician edict to a contract other than sales. With D. 21.1.63 stating that the different character of sale and lease contracts impedes an extensive application of the edict's provisions and D. 19.2.39(42) providing that lease does not convey ownership, Accursius assumes that he has grasped the meaning of the text's phrase 'because lease is not carried out in the
55 'Ulpianus libro primo ad edictum aedilium curulium: Sciendum est ad venditiones solas hoc edictum pertinere non tantum mancipiorum, verum ceterarum quoque rerum. Cur autem de locationibus nihil edicatur, mirum videbatur: haec tamen ratio redditur vel quia numquam istorum de hac re fuerat iurisdictio vel quia non similiter locationes ut venditiones fiunt'.
56 'non enim in locatione intendit transferri dominium ut in emptione, ut s\[supra\] loca. Non solet \[D.19.2.39\]',H. de la Porte (ed.), Corpus iuris civilis, Lyon, 1558; D. 19.2.39(42): 'Ulpianus libro secundo ad edictum: Non solet locatio dominium mutare, (lease is not wont to change ownership)'.
33
 




















































































   45   46   47   48   49