Page 147 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
3.5 Remedies for latent defects vs the remedy for lesion beyond moiety
Hevia Bolaño explicitly pronounces on how the remedies for latent defects and lesion beyond moiety relate. How is the concurrence of remedies for cases in which a defect in a sold thing had caused a lesion beyond moiety to be solved?
'By instituting the actio redhibitoria or quanto minoris one does not lose the remedy for eviction of the thing, because these remedies differ... neither does one lose the remedy for lesion beyond moiety for the same reason, because that remedy is granted for the inequitableness of price, according to C. 4.44.2. The other remedy is given for a defect in the thing which causes it to be worth less, according to titles D. 21.1 and C. 4.59. Hence, one can bring in one libel or claim the actio redhibitoria or quanto minoris, as a gloss and Cepolla have it'.310
Hence, both remedies can be instituted next to each other, because they aim at remedying different shortcomings in the sale. The remedies for defects focus on the thing's quality, whereas the remedy for lesion beyond moiety focusses on its price.
Yet, Hevia Bolaño's view is not representative of how early modern Castilian scholarship considers the matter. It seems that in case the remedies overlap, a predilection for the remedy for lesion beyond moiety held sway. This may partly be due to that remedy's procedural outlook. As observed in the previous chapter, medieval ius commune ascribed features to the remedy for lesion beyond moiety which made it presumably more attractive to buyers to institute than the remedies for latent defects.311
Early modern Castilian legal doctrine continues in the same vein. Against the short period of limitation for the remedies for defects on six months and one year respectively it places a remedy for lesion beyond moiety which lasts for four years.312 On account of this, one might assume that the principal remedy a Castilian buyer would choose in the event a defect in a thing bought had caused the required prejudice would be the one based on laesio enormis. Since that one lasted longer, it provided the buyer with the greatest chance to be on the safe side of the limitation's deadline. By the same token, early modern Castilian civil law extended the remedy for lesion beyond moiety to lease without any qualms but barred the remedies for latent defects from the same contract.313
What also may have encouraged Castilian civil law scholars and practitioners to favour the remedy for lesion beyond moiety over those for latent defects is contemporary theological theory, which turned around fairness in exchange and a just price. Early modern
310 Hevia Bolaño, Laberinto, libro 1.13.6, p. 144'... por pedirse la accion redhibitoria o quanto minoris no se quita la accion de eviccion y sanemaniento de la cosa por ser diversa... ni tampoco por lo mismo se quita la accion del engaño en mas de la mitad del justo precio, ni por ella ellas, porque esta se da por la iniquidad del precio conforme un texto \[C. 4.44.2\] y aquellas por la tacha de la cosa, porque vale menos, segun unos titulos de Derecho \[D. 21.1 and C. 4.59\]. Y asi se pueden intentar en un libelo o demanda las acciones redhibitoria y quanto minoris segun una glossa \[gloss actionibus to D. 21.1.19.2, in: Corpus iuris civilis, p. 1610\] y Cepolla \[Cepolla, Commentaria, nos. 9, 12, pp. 2-3\]'.
311 See 2.3.2.
312 See 3.4.2.
313 See 3.4.4
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