Page 117 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILAN LAW
Gómez' defense implies that Castro should have returned the goods within 40 days after they had been sold. Since Castro does not put forward a claim in which he states to have been duped for more than half of the just price he had apparently put his cards on a remedy for the defects in the fabric. That remedy had an even shorter period of limitation than the ius commune actio redhibitoria, which expired after two months. Thus, from this case it seems that a duped buyer who sued for defects in the thing sold had to act at rather short notice after the sale's conclusion.
I found no further cases which provide an insight into the duration of remedies brought because of defects in the object sold. As will become clear in the second part of this chapter, almost all lawsuits about remedies in the thing sold involve the remedy for lesion beyond moiety. The remedies based on the aedilician edict almost seem to have died out in Castilian legal practice.
3.3.1.4 Favourable characteristics of the aedilician remedies
In the previous chapter, it was observed that medieval scholars ascribed certain advantages to the aedilician remedies in comparison with their civil equivalents.175 In the event of multiple sellers of a thing, the duped buyer who instituted an aedilician remedy did not need to bring a suit against each individually for his part in the sale. All were liable for the entire performance, though probably not cumulatively.176 Furthermore, the aedilician remedy for returning the thing was regarded as penal.177
Castilian legal doctrine hardly discusses these issues. Scholars who write for the forum internum disregard both aedilician characteristics. They reason from the breach of fairness in exchange a concept which is at odds with granting a penalty, since one should not inflict more damage on the other than one himself has suffered. Illustrative of this view is Molina's approvingly noting that Portuguese law decrees that a penalty agreed to a contract can not exceed the value of the performance, which is less than what is allowed in ius commune.178 Consequently, in the event the debtor fulfils part of his obligations, the penalty can only be executed for what he has not yet performed. For example, if the debtor should deliver two pieces of clothing but only delivers one, the penalty can only be executed for the clothing which should also have been delivered.179 It is hard to see how the aedilician penalty for double the seller's performance fits in this framework.
que | le buelbe el canonigo no es el suyo e vea que se | lo bendio mas de quarenta días'.
175 See 2.2.1.
176 The pertinent Digest texts are obscure concerning this matter. See 2.2.1.4.
177 See 2.2.1.4.
178 Molina, Opera omnia, vol. 1, disp. 97, no. 1, p. 220: 'De iure huius Lusitaniae Regni poena
conventionalis non potest excedere valorem rei ob quam praestandum imponitur. Si autem illum
excedat, invalida es quoad excessum'; Bartolus, Commentaria, to D. 45.1.72, no. 30, fo. 29v.
179 Molina, Opera omnia, vol. 1, disp. 97, no. 6, p. 221: 'Siquis sub certa poena dare promisit aliquid totum, ne tamen reddidit nisi partem, tunc, si obligatio erat dividua, quam iurisperiti vocant, ut si promisit se daturum duas vestes confectas tali die, quarum quaevis sine alia instituto inservit, nec reddidit nisi unam, tenetur solvere partem poena dumtaxat, iuxta proportionem ejus, quod dedit, ad rem totam, quam promisit, hoc est, dimidium poenae in exemplo proposito \[viz. half, since a penalty can not exceed the
value of the total performance\]'; idem, vol. 2, disp. 317, no. 9, p. 166. 105