Page 113 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILAN LAW
In all mentioned examples, prices and price reductions are, at least within the context of a suit for lesion beyond moiety, objectively determined. The price taken is that which is held to be common to the people. To find out what exactly was that common price parties summoned scrupulous expert tradesmen. Thus, so it seems, the common price amounts to the merchandise’s common market value. It is just as we read in the early modern scholastic and civil doctrine about just price.162
3.3.1.3 Limitation periods
According to medieval ius commune, the civil remedies for latent defects were perpetual, whereas the aedilician remedies expired after six months (redhibitoria) and one year (quanto minoris). Of this dichotomy no trace can be found in Castilian civil law. The Siete Partidas limit the remedies for latent defects to one year for price reduction and to six months for returning the thing and ignore the ius commune never-ending period for the civil remedies.163 In this, the statute's commentator López again sees a parallel between the compilers of the Siete Partidas and scholars of the School of Orléans, more specifically, Pierre de Belleperche, who, on his turn, found inspiration in C. 4.58.2.
'Peter and Cynus hold in their interpretation of C. 4.58.2 that there is no civil remedy for price reduction, but only a praetorian. They prove this by the wordings of C. 4.58.2 in which the Emperor states that he cannot envisage on what legal ground he \[sc. the buyer\] would be able to proceed against the seller after one year has lapsed... This law of the Siete Partidas seems to tend much toward the view of Peter... as does the next \[SP. 5.5.65\], which fixes the limitation period on one year, as I will say there'.164
López mentions the existence of a civil remedy on the contract but unquestionably denies its application in Castilian law. He accepts the short aedilician limitation periods. Gómez has the same.165
To what extent López' view agrees with the views of his contemporaries versed in canon law and theology, becomes clear in the writings of Covarrubias and Molina. According to Covarrubias, if the aedilician remedies had expired, a duty to compensate the losses inflicted on the buyer nevertheless remained, but then only in the forum internum. Stating it thus, Covarrubias implicitly accepts the short limitation periods of the aedilician remedies for the forum externum, as opposed to the longer 30-year period the civil action entailed. In his own words:
162 See the previous section and 3.2.2.3 for early modern scholastic views.
163 SP 5.5.64: ...fasta seys meses puedela tornar al vendedor e cobrar el precio que dio por ella... Come es
quier que fasta un año puede el comprador fazer demanda, a aquel que le vendio la bestia que le peche o le torne tanta parte del precio quanto fallassen en verdad que valia menos por razon de tacha..., in: Los códigos españoles, vol. 3, p. 632.
164 Gloss 4 to SP 5.5.64, in:Los códigos españoles, vol. 3, p. 631: 'Petrus vero et Cyn. in l. 2, C. de aedilit. action. dicunt, quod non est reperire quanto minoris civilem actionem, sed tantum praetoriam et probant per litteram l. 2, C. de aedilit. action. ubi Imperator dicit, quod non videt, quo iure agi possit contra venditorem anno elapso...Haec tamen lex Partitarum multum videtur inclinare in opinionem Petri... et facit etiam lex infra próx., quae taxat tempus annale ut ibi dicam'.
165 Gómez, Variarum resolutiones, 2.2, no. 48, p. 236. 101