Page 168 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
In his De contractibus quatuor digestorum tituli, Mudaeus argues at length about the remedies available under the sales contract. In particular D. 19.1.13pr. about the selling of rotten beams prompted Mudaeus to discuss Accursius' acknowledgment of civil and praetorian variants of the remedy for price reduction. Mudaeus dismisses the view defended by Accursius, Bartolus, De Castro and Salicetus that these remedies are different. According to Mudaeus the epithets 'civil' and 'aedilician' given by the medieval jurists lack any practical meaning.
Mudaeus expounds his view in a treatment of the meaning of the Latin phrase quanto minoris essem empturus, si id ita esse scissem, which can be translated as 'for how much less I \[i.e. the buyer42\] would have bought it, had I known about the defect'. As demonstrated in the chapter on medieval law, medieval scholars believed these words to indicate a price reduction based on the buyer's personal judgement about the defective thing's value as opposed to the phrase quanto minoris res esset empta, 'for how much the thing was worth less', which words, so they contended, indicate an objective assessment of the abatement. We saw Oldendorp uncritically following his predecessors. Mudaeus, however, disagrees with the medieval communis opinio and denies that these phrases have a different meaning.
To underpin this claim Mudaeus critically discusses the example of the sale of a slave who turns out to be a murderer. According to the medieval jurists, it makes a difference which definition of price reduction is used. An honest man might no longer want to have this slave in his household, whereas a tyrant would not have any qualms in keeping the slave and putting him to other tasks than he had originally intended.43 If in this case the price reduction is calculated by means of the adage quanto minoris essem empturus, the tyrant will not be entitled to any abatement, since he does not value the slave any less after having found out his defects. On the other hand, if the reduction is determined by quanto minoris res esset, the same tyrant can nonetheless claim a price reduction, since slaves with bad habits are commonly held to be of lesser value than slaves without such negative qualities. Thus, according to the majority of medieval scholars, it the precise wording of the price reduction mattered. At least, they did not believe that it was for nothing that the Roman jurists used divergent definitions of price reduction.44
42 Subject of essem, the expression quanto minoris essem empturus functions as an indeclinable noun.
43 See for a full discussion - including the examples given here - of the medieval views regarding this
example Hallebeek, ‘The Ignorant Seller’s Liability’, pp. 175–217, 210.
44 Mudaeus, De contractibus, to D. 19.1.13pr, no. 2-3, p. 182: 'Et ne in solo nomine originis sive
inventionis, putetur differentia consistere, ac quod interim reipsa sit inanis, prospexerunt unius voculae in utraque actione differentiam: nimirum, quod ea, de qua hic loquimur, civilis actio detur quanto minoris res esset empta: illa vero praetoria detractione dictionis ultimae quanti minoris res esset. l. Quod si nolit, § Si plures, de aedil.edict. \[D. 21.1.31.5\]. Rursus autem, ne hoc quoque discrimen putetur inane, quasi nemo emptor prudens verisimiliter esset pluris empturus, quam res ipsa sit, et vere valeat, si vitium rei habuissset cognitum. Descenderunt ad esse effectionem ementis, quod scilicet essent vitia rerum, ob quae aliqui deterrentur ab emptione, nisi exiguo pretium possent emere. Alii vero, ex eorum affectione non magni illa vitia facerent, neque ab emptione ab illa abstinerent, ut puta servus aliquis multum crudelis est et homicida, seu vir probus et moderatae vitae omnino nollet emptum in sua familia habere,
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