Page 106 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
3.3 Castilian legal doctrine and practice on the law of latent defects
3.3.1 The aedilician remedies: redundant rules?
Medieval ius commune-scholars discerned two sets of remedies for latent defects. First, the aedilician remedies for returning the thing and price reduction in D. 21.1 and C. 4.58. Secondly, the action on the sales contract (actio empti) contained at first sight similar remedies in D. 19.1 andC. 4.49. Azo, Accursius, Bartolus and Baldus had evaded the question whether perhaps some of these remedies were redundant by stating that the aedilician remedies had their own scope, periods of limitation, methods of determining the price reduction a seller of a defective thing owed the duped buyer. Furthermore, some medieval scholars acknowledged that the aedilician remedies possessed buyer-friendly characteristics which the civil remedies did not. Yet, scholars notably from Orléans, the ultramontani, Pierre de Belleperche and Jacques de Révigny had argued against this view. The limitation periods and calculation methods of both the aedilician remedies and those which could be brought with the action on the sales contract were the same.133
In early modern Castilian civil law the seeming redundancy of some of the Roman law remedies for defects in the object sold does not receive the same amount of scholarly attention as it had in medieval legal doctrine. This is the result both of historical developments and of a changed approach to law due to early modern scholastic influences. The following sections discuss what changes occurred in early modern Castilian civil law regarding the features which in medieval ius commune, according to some medieval legal scholars, were proof of the existence of two sets of remedies for defects in the thing sold, sc. the remedies' scope, assessment of price, limitation, and procedural characteristics.
3.3.1.1 Scope of the civil and aedilician remedies
Castilian scholars demonstrate a similar lack of interest in the exact properties of the ius commune remedies for latent defects in their treatment of the question to which defects they applied as medieval and humanist scholars. The latter had profoundly discussed the various ways to remedy corporeal and non-corporeal defects. The aedilician actio redhibitoria applied to corporeal defects only, so that the civil remedies for all loss and for price reduction were needed in the event a non-corporeal defect came to light.134 According to D. 19.1.13.1, buyers of slaves prone to stealing only had a civil remedy, if the seller had known the defect or guaranteed the absence of the slave's inclination to steal. This made sense to the medieval interpreters, as they commonly accepted the fact that slaves in general could not be trusted, so that buyers of slaves prone to steal should not whine about the occurrence of a normal trading risk.135 The buyer of a slave inclined to flee, however, could sue for price reduction also against an ignorant seller.
133 See 2.2.1.2-3.
134 See 2.2.1.1.
135 Hallebeek, 'The Ignorant Seller’s Liability', pp. 188, 192, 195, 197, 205.
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