Page 171 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
any difference at all'.53
Wesenbeck, one of Mudaeus' promising students, nevertheless did not adopt his
master's carefully crafted repudiation of the medieval communis opinio. Although he does not explicitly mention any of the medieval authorities, it is plain from his phrases that in contrast with his teacher Wesenbeck follows medieval doctrine.
'Furthermore, this remedy quanti minoris does not differ only just a little from the remedy on the sales contract, so that it should not by any means be regarded as redundant... The first remedy lies for how much less the thing would have been bought according to the plaintiff; he, even if admonished, could also have bought the thing for more than its actual worth. The second lies for how much less the thing's value was, because of which the remedy is also known as estimatory (aestimatoria), since the remedy comprises an estimation of the thing's value, D. 21.1.18 and D. 21.1.44pr.'.54
With the phrase 'he \[the buyer\], even if admonished, could have bought the thing for more than its actual worth', Wesenbeck adheres to the medieval doctrine that for their practical effects, it mattered which action the buyer brought. After all, if the buyer wants to pay more than the defective object's common market prize value, the price reduction he can realise by using the actio empti is more than the reduction based on the aedilician remedy. The action on the contract comes with an oath, in which the buyer could demonstrate and prove his willingness to pay more for the defective thing than other people. This argument comes close to the example in which the buyer of a slave is an honest man or a tyrant, put forward by Mudaeus, but than in the affirmative. The first would indeed have paid less for the slave had he known about his negative traits, whereas the latter would not and for that reason had to make the best of a limited price reduction. Where Mudaeus chose to dismiss this distinction, Wesenbeck is willing to accept it and thus to uphold medieval doctrine.
In the long run, Mudaeus' and Dumoulin's lines of thinking would prove the most persistent. Cujas and Doneau reproduce the same arguments against the Accursian distinction. To both of them, there is only one method of calculating the amount the buyer can claim back from the seller. Cujas echoes De Belleperche and Mudaeus.55 Doneau argues that a buyer would never pay more than the current market price, since that is the
53 Loriot, Commentaria, to D. 19.1, no. 58, p. 318,: 'Accursius fatetur minime superflua esse, nullam tamen differentiam constituens'.
54 Wesenbecius, In pandectas, p. 370: 'Deinde ab actione empti haec quanti minoris non paucis differt, ut nullo modo debeat videri supervacanea. ... illa petit quanto minoris res empta ab agente esset qui etiam admonitus potuit pluris emere quam res re vera valebat: haec quanto minoris fuerit, unde et aestimatoria vocatur actio quia rem aestimat, l. si quid. 18. l. iustissime, 44, h.t.'.
55 Cuiacius, Opera omnia, vol. 7, p. 745 A: 'Neque enim inter has formulas ullum discrimen esse reperio, nec constituendi discriminis glossae ullam rationem esse, cum non alio pretio praesumatur emptor sui compos empturus fuisse quam vero et justo'; idem, Cuiacius, Opera omnia, vol. 9, p. 396 C: 'Non est probanda differentia Accursii inter actionem aestimatoriam civilem, id est, ex empto, et aestimatoriam aedilitiam, quasi scilicet civilis sit quanto minoris emisset, aedilitia quanto minoris valuisset. Nam seu dixeris emisset, seu valuisset, idem dixeris, ut nostri auctores loquuntur promiscue, ut indicat l. Julianus, §. si ven. et §. seq. de act. emp'. \[D. 19.1.13.4 seq.\]'.
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