Page 170 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
conclusion Cynus, Fulgosius and De Belleperche had already drawn a few hundred years earlier.49
However, Dumoulin decides the matter in a somewhat different fashion. In his view, the buyer's personal views about the item's value cannot alter its common value, which has to be assessed by the item's substance or essence.50
Around the same time as Mudaeus in Leuven, Loriot († 1568) was active in Grenoble, France.51 This teacher of Cujas, among others, just as Mudaeus proved to be rather independent in his thinking about the rules governing the possible remedies in the event of a latent defect.
Loriot links the remedy for price reduction based on the common market value with that other aedilician remedy, the remedy for returning the thing. He explains the specific traits of the first by the original aedilician context, viz. the sale of slaves and draught animals.
'I am of the opinion that the remedy for price reduction was introduced because of the value of a sold animal, which, since it can be contested every day anew, is said to be obscure, and as many times as it is contested, so many times proceedings must take place over it. This same thought underlies the remedies for returning the thing or price reduction in case of a plot of land, if it is wasted by weeds, seeing that weeds return over many years and can vary as regards their profusion. Here too, as often as the value varies, just as often new proceedings must take place to assess it'.52
According to Loriot, defects in animals were the order of the day at the time the edict was written. To smooth the lawsuits, the judge used a fixed price determination through which he could come to a quick assessment of the object's value.
Loriot thus proposes an historical explanation for the differences between the civil and aedilician remedies for price reduction. Though he admits that there is a distinction between the two, he provides other reasons than Accursius did, who, according to Loriot 'acknowledges that the aedilician remedies are not at all superfluous but does not provide
49 Mudaeus, De contractibus, to D. 19.1.13pr, no. 12-13, pp. 183-184: '... multum sane urget adversus distinctionem illam duplicis generis actionium quanti minoris... ubi tamen nulla prorsus est ratio diversi iuris cur aliis verbi Iurisconsultus \[sc. Accursius\] daret actionem quanti pluris emisset quam venditori quanto pluris valeret... ' for the Belleperche's views see 2.2.1.2.
50 Dumoulin, De aedilitiis actionibus, 3.8, p. 219: 'Nec Barto. exempla me movent, quoniam considerandum est quod qualitas personae non alterat communem rei valorem, ut faciat illum transire in singularem, sed tantum hoc agit, ut quod mihi expedit habere, alteri nihil valet, sed ex hoc non aestimatur rei valor, sed inspecta illus substantia'.
51 For biographical data see J.-L. Thireau, 'Loriot, Pierre', in: Dictionnaire, p. 518.
52 Loriot, Commentaria, no. 57, p. 318,: 'Actionem vero quanto minoris arbitror introductam esse propter animalis venditi interesse, quod cum cotidie commiti possit in obscuro esse dicitur, l. evicta.re. § fin., de evict., pro quo toties agendum est, quoties committitur, l. si procurator rem, rat. hab. \[D. 46.8.18\], hacque
ratione etiam pro fundo, si pestilens distractus sit, vel redhibitoria, vel quanto minoris agitur, l. etiam, de aedil. edict. \[D. 21.1., pestilens enim herba quotannis renasci et in maiore vel minore frequentia potest,argu.l.si uno in princ.locat., et ita varium esse interesse et multoties pro eo agendum'.
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