Page 119 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILAN LAW
353, of his On justice... Secondly, that what has been said about a non-manifest hidden defect in a thing for the sales contract, must similarly be understood for barter and lease, D. 21.1.63 \[my emphasis\].'184
Early modern Castilian civil law neither pays much heed to the question whether the remedies for latent defects could be brought in lease. This may be due to the Siete Partidas, which statute, influential in early modern Castile does not tell us anything about a possible extension of the remedies lying for sales to lease, nor mentions the remedies in the title on lease.185
Yet, one practically minded legal scholar writes something about it. Following the medieval majority view as expressed in the Gloss, Hevia Bolaño ponders that the remedy 'cannot be applied to leased things in conformity with another text \[D. 21.1.63\]'.186
The seeming lack of interest of Castilian scholars in the matter can be explained by the fact that the remedy for lesion beyond moiety offered, under limited circumstances, recourse to a duped party in whatever bona fide contract. As will be demonstrated in the section on Castilian legal practice, in lease a plaintiff could bring the remedy for laesio enormis which implied both the possibility to rescind the sale and to have the price reduced. Moreover, both the aedilician remedy for price reduction and that for laesio enormis entail a method of price estimation based on the just price concept. Consequently, the use of the aedilician remedies as laid down and accepted in medieval legal doctrine is more theoretical than practical in the Castilian legal context.
3.3.2.1 Legal practice
Castilian legal doctrine inclined to adopt the view of Bartolus and the Gloss and to deny that remedies for latent defects could be applied to other contracts than sales. Yet, legal doctrine did accept extension of the remedy for laesio enormis to other contracts.187 This also seems to be the Royal Chancery's practice with regard to defects in other bona fide contracts. Various cases studied show that the remedy for lesion beyond moiety was likewise applied to lease as it was to sales. The reader is referred to section 3.4.4.1 for this.
3.3.3 Increased liability
The Corpus iuris civilis contains a puzzling text about the sale or lease of a barrel which turns out to be leaky. In contradiction with various other texts in the Corpus iuris civilis D. 19.1.6.4 holds an ignorant seller or lessor liable for all damages.188 D. 19.2.19.1 does the
184 Fagundez, De iustitia, p. 484, no. 12: 'His tamen quae hactenus diximus, Molina citatus 2, De iustitia, disp. 353 tria merito addit... Secundum, quod quae de contractu emptionis et venditionis non manifesto vitio occulto rei dicta sunt, similiter intelligenda esse de contractu permutationis, locationis et conductionis, l. sciendum, §. pen., ff. de aedil. edict. \[D. 21.1.63\] \[my emphasis\]'.
185 SP 5.5 and 5.8 respectively.
186 Hevia Bolaño, Laberinto, 1.13.7, p. 146: 'mas no ha lugar en las cosas alquiladas, conforme otro texto (l.
sciendum, ff. de aedil. edict)'. For the medieval positions see 2.2.2.
187 See section 2.3.2.4 and 3.4.4.
188 D. 19.1.6.4: 'Si vas aliquod mihi vendideris et dixeris certam mensuram capere vel certum pondus
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