Page 162 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
4.2 Humanist legal doctrine on the law of latent defects
4.2.1 The aedilician remedies: redundant rules?
'Why, you might ask, was there a need for this remedy, if the same could be realized with the action on the sales contract, see D. 19.1.13pr? My answer is that, since the safeguarding of contracts was the aediles' task, it is not surprising that they proposed specific remedies in their edicts, see D. 4.9.3'.14
The Leuven educated jurist Wesenbeck (1531-1586)15 hits the nail on the head when he asks his readers about the origins of the aedilician edict's remedy for returning the thing bought. This question seems to flows almost naturally from the state in which medieval legal debate had left the law of latent defects at the beginning of early modern times. The concurrence of the aedilician remedies with the remedies available under the action on the sales contract was one of the moot points in medieval legal doctrinal debate and it would continue to be so among early modern legal scholars.
Humanist scholars took different directions in their dealings with the question why the Corpus iuris civilis contained the seemingly redundant aedilican remedies. One group adhered to the theory of their venerable medieval predecessor Accursius, who had ordained that there are civil and aedicilian remedies, of which each possessed particular characteristics and purposes.16 A second group of humanists, the most renowned of which is Cujas, maintained Accursius' division but explained its existence by other means than its medieval predecessor did. Thirdly, a seemingly more innovative breed of legal scholars, headed by Doneau, pushed the matter so far as to refute a difference between the aedilician actio quanto minoris and the similar remedy for price reduction under the actio empto.
However, the references to medieval predecessors by legal humanists cannot conceal the fact that humanist scholars worked in a changed paradigm. Illustrative of this new approach to law is Wesenbeck's reference to the task the aediles' were supposed to fulfil. Medieval scholars had not concerned themselves with the historical context in which the Roman law had come into existence. In addition to how humanist scholars interpreted Roman law and commented on the ius commune of their time the changed methodological starting points of the humanists will be the subject of the following sections.17
4.2.1.1 Scope of the civil and aedilician remedies
In the German town of Marburg the professor of civil law Oldendorp contemplated the
14 Wesenbecius, In pandectas, to D. 21.1, no. 20, p. 237: 'Quorsum autem, inquies, opus erat hac actione, cum eadem ex empto competat? d. leg. Iulian, in pr. \[D. 19.1.13pr\]. Respondeo, ad Aediles cum cura contractuum pertineat, non mirum esse, eos, ex edictis suis speciales actiones proponere, l. 3, supra, nautae caupo. stab. \[D. 4.9.3\]'.
15 In Latin: Mattheus Wesenbecius. For biographical data see A. von Eisenhart, 'Wesenbeck, Mathäus, in: ADB 42 (1897), pp. 134-138. Dekkers, Humanisme, p. 191-258; Feenstra, Matthäus Wesenbeck, passim.
16 See 2.2.1.
17 See also De Bruijn, 'Accursius', passim.
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