Page 167 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
chronology.
4.2.1.2 Assessment of price reduction
Medieval legal scholarship also debated the appropriate calculation method for the remedy for price reduction. Concerning this issue, Oldendorp acknowledges the medieval interpretation that the aedilician and civil remedies are accompanied by distinct calculation methods. However, he underpins this view differently. Again, Oldendorp distinguishes between the jurisdiction of the Roman magistrates (ius honorarium) and the ius civile in the strict sense of the word, a distinction medieval scholars did not make with regard to the remedies for defects in things exchanged for money.
'Bartolus too acknowledges the difference between the civil remedy for price reduction and this praetorian remedy in D. 21.1.1pr., which you have to understand in accordance with what has been demonstrated above and with the following: 1) The civil remedy for price reduction is brought on the basis of the highest and most legitimate authority. The aedilian remedies, however, originate in the praetor's competence. 2) By means of the action on sales a reduction for how much less the buyer would have bought the thing is claimed, in this aedilician verdict a price reduction based on how much the thing's value was. Hence, the subjective price with its reference to the buyer's feelings differs from the common market price, which is based on the estimation of all people...38
Oldendorp is not afraid to adhere to the opinion of Bartolus, one of the most famous – and among later humanists frequently mentioned as infamous – of the commentators who followed Accursius' distinction.39 Yet, the arguments Oldendorp uses to underpin Bartolus' findings are of a different type than the ones Bartolus himself had produced.
A wholly different tone is heard, when we listen to what Dumoulin and Mudaeus have to say about the differences between the civil remedy for price reduction and the aedilician one cited above by Oldendorp.40 A contemporary of Erasmus, who also visited and lectured at Leuven's university, Mudaeus demonstrates the same critical attitude towards the hitherto authoritative Roman law texts as Erasmus revealed towards Hieronymus' Vulgate bible translation. Mudaeus offers a neat example of a scholar who dares to depart from Accursius' authoritative reading of the Corpus iuris civilis and to come with alternative interpretations of the texts. Despite his modest literary output, he left his traces in the field of legal science as the teacher of Wesenbeck and Raevardus († 1568).41
38 Oldendorp, Progymnasmata, 7, no. 8, p. 267: '... Et hanc probat Bart. esse differentiam inter civilem actionem, quanto minoris: et hanc praetoriam in l. Iulianus, in prin, ff. de aedil.edict. Quod sic tamen intellige, ut superius est declaratum: praeterea differunt. 1. Ex empto quanto minoris civili, agitur suprema & legitima autoritate: hae vero aedilitiae ex Praetoris jurisdictione. 2. Per actionem empti id exigitur, quanto minoris empturus fuisset actor. In his vero aedilitiis iudiciis illud requiritur, quanto minoris res erat. Quod ergo distat pretium singulare respecto emptoris adfectu, a pretio communi, aestimatione omnium hominum:... '.
39 Similarly, Sichardus, Dictata, vol. 1, to C. 4.58, nos. 11-12, p. 477.
40 Dumoulin, De aedilitiis actionibus, ch. 3, nos. 6-8, pp. 218-220.
41 Caenegem, Historical Introduction, p. 56; Dekkers, Het humanisme, pp. 100, 143.
157