Page 164 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
According to Wesenbeck, both aedilician remedies are ruled out when there is no corporeal defect. Thus, in the event of a non-corporeal defect, the buyer can neither bring the aedilician remedy for price reduction. The only remedies left are the civil. This interpretation follows from an literal reading of D. 21.1.4 which contains the text of the aedilician edict. From that text Wesenbeck concludes that the edict was strictly speaking introduced for curing sales of cattle and slaves, not for sales of other goods.
Wesenbeck furthermore contends that the aedilician edict is meant to allow for a better fulfilment of the sales contract. It provided additional protection to the buyer where the action on the sales contract, in Wesenbeck's historical view that is, did not yet give any. Analogous to the edict Nautae caupones, which governs the liability of ship-owners, inn-keepers and keepers of stables who received things in custody24, the aedilician edict corrects instances in which the enforcement of duties and obligations under the sales contract proved particularly difficult.25 Where a ship-owner, inn- or stable-keeper does not return the object he had taken into custody, he can be sued with an action on the lease contract or deposit. However, those actions require a degree of negligence (culpa for lease and dolus for deposit)26 on the side of the debtor. The action granted in the edict Nautae caupones does not have such requirements. It holds ship-owners, inn-keepers and keepers of stables liable for not giving back things left in their custody irrespective of their behaviour. Only an Act of God can exclude them from the edict's liability.27 The aedilician edict for latent defects serves a similar purpose by granting remedies where the action on the sales contract had not catered for.
Cujas argues in the same vein as Wesenbeck that the aediles had introduced the remedies of the aedilician edict after experiencing that buyers needed extra protection against cunning sellers, which the civil remedy (actio empti) did not yet provide. Cujas also draws a comparison with the edict Nautae caupones.
'Just as Pomponius was struck with wonder about the edict Nautae caupones, someone might wonder why the aedilician remedies were introduced, since the civil remedies under the sales contract are available. To him can be given the same answer as to Pomponius, vid., that these were introduced, so he notes, in order that the aediles would care that buyers would not be cheated by sellers'.28
Moreover, Cujas limits the applicability of the aedilician remedy for returning the thing to
24 D. 4.9. Nautae caupones stabularii ut recepta restituant.
25 Wesenbecius, In pandectas, to D. 21.1, no. 20, p. 237: '... ad Aediles cum cura contractuum pertineat,
non mirum esse, eos, ex edictis suis speciales actiones proponere, l. 3, supra, nautae caupo. stab.
\[D. 4.9.3\]'.
26 D. 19.2.19.5 (undertaking); D. 16.3.1.10 (deposit); Buckland, Textbook, pp. 465, 497.
27 D. 4.9.3: ...at hoc edicto omnimodo qui receperit tenetur, etiam si sine culpa eius res periit vel damnum
datum est, nisi si quid damno fatali contingit.
28 Cuiacius, Opera omnia, vol. 1, to D. 21.1, p. 777 D \[right column\]: 'Mirabitur aliquis cur aedilitiae actiones
... inductae sint, cum sint civiles ex empto vendito, ut mirari simili modo Pomponius contigit in edicto Nautae capones: in cui et simili modo Pomponio respondeatur, inductas ideo, ut innotesceret aedilis curam agere ne emptores a venditoribus circumvenirentur...'.
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