Page 169 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
To counter the medieval communis opinio, Mudaeus draws attention to two medieval jurists, Cynus and Fulgosius, who thought otherwise. Though their views were not shared by the majority of medieval jurists, Mudaeus nevertheless thought them relevant, because they offer sound arguments against the reasoning spelled out above. One counterargument of the two dissenters focusses on basing the reduction on the buyer's personal judgement. According to ius commune-doctrine, subjective feelings have to be established under oath in court. Consequently, if the buyer of a defective thing brings the remedy for price reduction based on how much less he would have been buyer, had he known about the defect (quanto minoris res essem empturus), the thing's value has to be determined by his oath in front of the judge.45 However, a difficulty here is that the remedy for price reduction also lies against the sellers in good faith, because it was considered problematic to take an oath to the detriment of someone who had not acted in bad faith, so Mudaeus:
'for sure, there is no sufficient reason and fairness to grant the buyer the possibility to take his oath against a seller who had not acted in bad faith, since it is not permitted for anyone to take an oath in proceedings... not even against someone whom the buyer defeated in court and vanquished, unless the losing party had acted in bad faith and had manifestly been in contempt of court by not carrying out the court's orders, D. 12.3.5'.46
Indeed, the Digest text Mudaeus refers to reads that 'in all these cases47 an oath is only taken in the event of dolus, not so in case of culpa. This is to the judge to estimate'.48 Hence, in view of the fact that D.19.1.13pr. in which the price reduction is based on quanto minoris essem empturus, si id ita esse scissem is about a seller in good faith and, moreover, that an oath can not be taken against such a seller, it is quite impossible that the words in the text indicate a subjective price assessment. This leads Mudaeus to conclude that the words can only mean a price reduction estimated by objective standards, bearing the same meaning as the phrase quanto minoris res esset empta.
Since most medieval scholars relied upon the different formula used for price reduction as one of the main arguments to accept two different remedies for price reduction, Mudaeus' inventiveness made their entire theory collapse. The sentences quanto minoris essem empturus and quanti minoris res esset appear to be just variegated Latin for one and the same price reduction based on the thing's objective value, a
tyranno vero esset ob ea etiam gratior'.
45 Mudaeus, De contractibus, to D. 19.1.13pr, no. 3, p. 182:'...civilem, probato prius plene vitio rei, quo ad
reliquum, quod in aestimatione consistit, decidi iureiurando emptoris...'..
46 Mudaeus, De contractibus, to D. 19.1.13pr, no. 6, p. 183: 'Et profecto non satis rationi et aequitati
convenit, quod hic emptori committamus suum iusiurandum, contra venditorem, qui in dolo non est, cum ad iusiurandum in litem... non admittatur quis et nec contra eum quidem, quem iudicio vicit et superavit, nisi hic victus in dolo sit et evidenti contumacia, non faciendo iudicatum, l. in actio. de in litem iurand.'
47 The cases are summed up in the praefatio of the quoted Digest text D. 12.3.5pr.: Marcianus libro quarto regularum. In actionibus in rem et in ad exhibendum et in bonae fidei iudiciis in litem iuratur.
48 D. 12.3.5.3: Sed in his omnibus ob dolum solum in litem iuratur, non etiam ob culpam: haec enim iudex aestimat.
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