Page 116 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
'He who sells whatever animal with a defect or an illness (if he knowingly does not tell the buyer about it) can be sued by the buyer within six months from the day the sale has been concluded. Then he \[the buyer\] has to return the thing, whereas he \[the seller\] has to pay back the price, even if he does not want. If this period has lapsed, the sale is valid, though within one year he \[the buyer\] can claim back what the thing is worth less, because of the defect or illness'.172
Hevia Bolaño likewise applies the short limitation periods. However, in the event the seller had acted in bad faith, the periods continue to run, because then the remedy turns into a civil remedy for fraud which lies perpetually.
'And this limitation \[vid. of the short periods\] proceeds when the seller is in bad faith in the aedilician remedies as they stand, even though they are pretorian. However, if there is fraud concerned with them, the remedy he \[sc. the buyer\] has on the sales contract does not die within the lapse of time associated with them and it has to be considered a civil and perpetual remedy, as Covarrubias and many others have it \[Covarr., In reg. possessor, parte 2, § 11, no. 5\]'.173
Hevia Bolaño's statement that in the event of fraud the remedy metamorphoses into a perpetual one seems to contradict the view of Covarrubias, Gómez, Lópoez and Molina who had not accepted a perpetual duty to make restitution in the forum externum.
To conclude, the majority view in Castilian legal doctrine seems to be that the aedilician periods of limitation applied to remedies for latent defects. Only Hevia Bolaño accepted that in the event of fraud (dolus) on the side of the seller the buyer could bring a remedy over a longer period. Hence, the civil remedy for latent defects, which according to Accursius and other medieval scholars could be brought over a period of thirty years, has disappeared from Castilian civil law.
3.3.1.3.1 Legal practice
In one pleito a limitation period very similar to that of the aedilician remedy for returning the thing comes to light. In the case between the canon Jerónimo de Castro and Manuel de Gómez, the latter had sold bad quality fabric for which fact the canon took him to court. There, by means of defense, Gómez' lawyer states that:
'he \[sc. Gómez\] said that he appeals from the said interlocutory judgement and that the fabric which the canon had given back to him, is not his and note that he \[sc. Gómez\] sold it to him more for than 40 days before'.174
172 Albornoz, Arte, 2.14, p. 61: 'El que vende qualquiera bestia con tacha o enfermedad (si sabiendo la no lo dize) puede el comprador dentro de VI meses de el día de la vendida tornarla a el vendedor, y el le ha de tornar el precio, aunque no quiera, y passado este termino vale la vendida, aunque dentro de un año puede demandar lo que menos vale, por razon de la tacha o enfermedad'.
173 Hevia Bolaño, Laberinto, I.13.26, p. 155: 'Y esta prescripcion procede con mala fe del vendedor en las acciones aedilicias como estas son, por ser pretorias, aunque aviendo dolo en ellas la accion del que hubo en la venta no se quita por el tiempo dellas, antes queda salva por ser civil y perpetua, como (con muchos) lo tiene Covarrubias (x)'.
174 Pl. civ., A. Rodriguez (olv.), caja 223, 9 (1628), sc. 8-9: 'dijo que ape- | la del dicho auto y que el paño 104