Page 165 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
corporeal defects, something Oldendorp, in keeping with medieval ius commune, had already noted..29
That the medieval view that the aedilican remedies only lie for corporeal defects is rather persistent is also proved by Giphanius. Although he can be considered among those who fired rather hard judgements on their medieval colleagues as writers of useless glosses, he is not averse to adopting their opinions when he sees fit. Concerning the question whether the kind of defect mattered for the possibility to bring the remedy for returning the item, he simply repeats the view of the Gloss. It makes a huge difference whether the defect is corporeal or non-corporeal. The aedilician remedy can only be brought in the event of corporeal or mixed defects, so the humanist ponders.30
Cujas' antagonist Doneau also upholds the distinction between corporeal and non- corporeal defects. Having taken the task of providing a comprehensible oversight of Justinianic law, Doneau aimed to mould the medieval ius commune into a coherent system.31 Although one would expect this methodology to provide incentives for doing away with aedilician specifics, Doneau nonetheless maintains the different scope of the aedilician remedies and the action on the contract. He provides a solid underpinning for this, which is firmly rooted in a historical approach of the matter:
'it should be noted that the defects in this edict32 are understood as corporeal instead of non-corporeal. Consequently, occurrence of the first kind of defects permits the returning of the thing, whereas the same does not hold for the second kind. The argument is that the edict has explicitly ruled regarding the vagabond and the fugitive slave – which are non-corporeal defects and not corporeal'.33
Since the aedilician edict explicitly mentions inclinations to err and flee as actionable non- corporeal defects, it is argued by scholars, whom Doneau fails to name, that these defects form an exception to a general rule which excludes the remedy for returning the thing in the event of non-corporeal defects.
After some initial doubts whether the aediles really intended to confine the remedy for returning the thing to corporeal defects, Doneau affirms that this must indeed have been the case.
29 Cuiacius, Opera omnia, vol. 1, to D. 21.1, p. 177: 'Idem si redhibere non possit, veluti ob vitium animi'; cf. Klempt, Grundlagen, p. 19.
30 Giphanius, Disputatio, th. 102, p. 30: '... plurimum intersit. Redhibitio enim ea, non nisi ob vitia corporis aut mixta corporis et animi fieri solet'.
31 De Bruijn, 'Accursius', pp. 84-86; on the character of Doneau's magnum opus 'Commentaries on Civil Law' see De Bruijn, 'Commentarii', pp. 131-132; Cannata, 'Systématique', passim.; Feenstra, 'Hugues Doneau', passim; Stein, 'Donellus', passim.
32 The edict on beasts of burden, D. 21.1.18.
33 Donellus, In titulum, to D. 21.1, p. 274: 'Illud notandum est, vitia hoc edicto intelligi corporis, non animi, ut
ex illis redhibitoria fit, ex his non item. Argumento est, quod nominatim postea de errone et fugitivo edicitur, quae vitia animi sunt, non corporis'; idem, Commentarii, vol. 7, 13.3, § 16, p. 399: 'ad vitia animi non pertinere. Veluti, si servus venditus sit levis, iracundus, contumax: si iumenta pavida aut calcitrosa. Itaque horum nomine non competere redhibitionem, aut actionem quanto minoris adversus ignorantem venditorem: solum ex empto agi posse, si sciens vitium animi venditor, non pronunciasset'.
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