Page 175 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
the Corpus iuris civilis for the claim that one indicates a civil remedy and the other an aedilician variant. Since 'we grow red with shame, if we speak without being backed by a law text', Viglius dismisses the Accursian distinction as 'one of learned men and not based on the law texts'.72
Thus, it seems that at the beginning of the 16th century not only in legal doctrine but in legal practice too the Accursian distinction between a subjective and objective price estimation lay under attack. However, this is not to be ascribed to a radically different approach to law. Merely problematic parts of the medieval communis opinio regarding the Accursian distinction gave way to a minority view already present among medieval jurists, which later humanist scholars endorsed. Historical accounts such as that of Loriot do not seem to have a role. Viglius' references to mos Italicus scholars such as De Castro and Bartolus is telling in this respect. This approach is in line with what is known about the proceedings in front of the Reichskammergericht. A study of the parties' pleas has revealed that works of legal humanists were seldom referred to.73 Innovation in early modern law took place along lines already set out in medieval times.
4.2.1.3 Limitation periods
Another issue regarding the debated redundancy of the aedilician remedies pertains to their limitation periods. According to medieval doctrine the aedilician remedies and the remedies available under the action on the sales contract varied with regard to the time periods within which the buyer had to bring them on the pain of forfeiting his rights. Castilian early modern civil law, however, had abolished this distinction and applied the short aedilician periods of limitation to the remedy it granted for defects in the thing sold. What was the humanist view on the matter?
Oldendorp accepts the existence of civil and aedilician remedies for latent defects with each having their own period of limitation.74 Zasius, a man often regarded as one of the harbingers of legal humanism, contends that the same is true for the civil and aedilician remedies for returning the thing. However, he seems to consider the civil remedy variant as one that can only be brought, if the seller has guaranteed the absence of defects in the item (cavet de omni vitio). As a consequence of the seller's bad faith, the remedy lies for thirty years. However, it seems that Zasius here confuses the civil action on the sales contract for all the buyer's loss with the civil actio redhibitoria mentioned in D. 19.1.13pr. According to medieval ius commune, the first indeed required bad faith. The civil actio redhibitoria, however, did not. In the medieval debate the limitation of the latter
72 Sprenger, 'De actio quanti minoris', p. 149, fo. 58v, lines 19-23, 26: 'Quarto nusquam apud iureconsultos legimus quod alia sit actio quanto minoris empturus, alia quanto minoris res valet, illa civilis, hec praetoria, illa perpetua, hec temporalis. Erubescimus autem sin lege loqui; \[26\]... distinctionem esse doctorum, non legum'.
73 Wijffels, Qui millies allegatur, vol. 1, p. 233.
74 Oldendorp, Progymnasmata, p. 267, nos. 7-8: '3. Civilis autoritas facit eas formulas omnibus modis
perpetuas: aedilitia autem sunt temporales'.
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