Page 114 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
'With the temporal actions extinguished, such as redhibitoria and likewise quanto minoris, there remains an obligation in the forum internum to compensate for damages, according to Aquinas' distinction in IIaIIae, q. 77, a. 3; John Major, Quartus sentenciarum, di. 15, q. 40, art. 3; Mazzolini, Summa silvestrini; Summenhart, De contractibus, q. 54; Tomasso de Vio, Summa, to 2a2ae, q. 77, a. 3; De Medina, De restitutionibus, q. 54... Because they also discussed the question whether a seller is liable to reveal defects in the thing he sells. Legal scholars tell the same, see D. 19.1.13pr... SP 5.5.64... The actio redhibitoria is granted in the event that, if the buyer would have known about the defect, he would not have bought the thing under any condition. Then he can sue for redhibitio during six months to have the sales completely rescinded, D. 21.1.21, C. 4.58.2, D. 21.1.19.6, SP 5.5.65... However, if the buyer nonetheless would have bought the thing, but not for so much, he sues for quanto minoris within a year, which has been proven by the references given above'.166
It is telling that Covarrubias mentions D. 19.1.13pr. and the aedilician remedies in one breath. Taken from an Accursian viewpoint, the Digest text dealing with the civil remedy on the sales contract would presuppose a perpetual remedy.167 Covarrubias, however, endorses the Castilian legal doctrine in that the civil remedies for latent defects no longer possess their own periods of limitation.
Molina repeats Covarrubias' ideas. In addition he brings forward López' interpretation that a Castilian statute put an end to the controversy of whether the remedies lasted for 30-years or were limited in time. Molina likewise refers to the Siete Partidas which in provision 5.5.64 fix the limitation period of the actio redhibitoria at six months and the actio quanto minoris at one year. Molina also claims that Covarrubias and other Castilian scholars believe that in the forum externum the remedies die with the lapse of the short periods, even if the seller has acted in bad faith. In such a case there remains nothing more for the buyer than to hope that the seller will take the salvation of his soul seriously and make restitution in accordance with the rules of the forum internum.168
'In the forum externum the actio redhibitoria is granted, which, according to civil and Castilian law, lasts for six months from the day of the contract's conclusion. In the
166 Covarrubias, Relectiones, 2.11, nos. 4-5, in: Opera omnia, vol. 1, fo. 214: 'extincta actione temporaria, qualis est redhibitoria, quanto minoris et similis, adhuc manet obligatio in animae iudicio ad damni compensationem, iuxta distinctionem S. Th 2.2.q.77, art. iii, Ioa. Maior in iiii senten. di. xv, q. 40, art. iii, Sylvest. verb. emptio, q. 19 & 20, Conrad. de contr., q. 54, Caiet. in d. art. iii, Ioan. Medina de restitut. q. 34... Nam et hi tractaverunt, an teneatur venditor detegere vitia rei, quam vendit. Apud iurisconsultos idem tradiderunt, l. Iulianus, in princip., ff. de action. empti... Regia lex 64, titu. 5, part. 5... Datur autem actio redhibitoria quando emptor si scivisset rei venditae vitium eam nullo pacto emisset: ideo agit is intra sex menses ad redhibitionem ut venditio rescindatur omnino, l. redhibere, ff. de aedil. edict, l. 2, C. de aedilit. action, l. sciendum, § tempus, ff. eod., l. 65, titu. 5, part. 5... Quod si emptor empturus nihilominus foret, sed non tanti, agit quanto minoris intra annum quod in praecitatis locis probatur'.
167 See 2.2.1.3.
168 Alternatively, the buyer could perhaps initiate proceedings in canon law by means of a denunciatio
evangelica, based on the seller's sinful behaviour (ratione peccati). However, such a denunciation had to meet certain criteria. For example, the secular jurisdiction had to be deficient. It is hard to imagine that the lapse of a limitation period counts as such a deficiency. After all, a remedy was available to the buyer, if only he had instituted his claim in time. See Decock, Theologians, p. 92-94, 100.
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