Page 176 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
remedy was controversial. Yet, Zasius does not take up the issue.75
It is again Mudaeus who takes steps in deconstructing the medieval framework
when he denies the existence of divergent periods of limitation said to attach to the remedies for latent defects. He draws his main arguments from the rescript C. 4.58.2:
'Imperator Gordianus. When you say that a slave which you bought a long time ago ran away after one year, I cannot think of a valid reason with which you would be able to sue the seller of the said slave on that account, seeing that it is plain law that the actio redhibitoria expires after six months and the actio quanto minoris after one year'.76
The text is straightforward; the buyer of a runaway slave aimed at a remedy for returning the slave or price reduction after one year. However, the Emperor rejects his claim because it is evident that the remedies the seller could possibly have brought had expired. The difficulty of the text lies in the question why the Emperor did not discuss the remedy on the sales contract, which according to other Digest texts should still have been available in this case, as it was bestowed with a 30-year period of limitation.77
Mudaeus relates that 'other' interpreters – whose names he mentions nowhere78 – tried to explain their way out of this difficulty by contending that the plaintiff had brought the aedilician remedy. As a consequence, the Emperor simply did not consider the actio empti because it had not been requested. Mudaeus disqualifies this view in strong terms and proposes a historical interpretation of the rescript.
'There is nobody who does not see how disingenuous, not to say ridiculous, it is, that others, in order to escape that objection, brought up that the Emperor had only been consulted with regard to the praetorian actions, the aedilician remedies, for sure, to
75 Zasius, In titulos aliquot, p. 236: 'Ista redhibitio sit dupliciter: aliquando de iure civili, aliquando de iure praetorio. De iure civili redhibitio est perpetua. Quando emitur res a venditore et venditor cavet de omni vitio, vult emptorem indemnem habere, sicubi appareat vitium aliquod quocumque tempore, haec redhibitio est civilis et perpetua, id est, triginta annos... Secundo dicitur redhibitio de \{de\} iure praetorio: hanc redhibitionem invenerunt aediles, quae frequenter sit in animalibus et hominibus emptis et venditis: quia si equus venditus vitium habeat, tunc potest redhiberi, non perpetuo, sed intra sex menses. Azo in summa sua, in tit.de.aedil.act.'
76 C. 4.58.2: Imperator Gordianus. Cum proponas servum, quem pridem comparasti, post anni tempus fugisse, qua ratione eo nomine cum venditore eiusdem congredi quaeras, non possum animadvertere : etenim redhibitoriam actionem sex mensum temporibus vel quanto minoris anno concludi manifesti iuris est. * GORD. A. PETILIO MAXIMO. *<A 239 PP. K. DEC. GORDIANO A. ET AVIOLA CONSS.>.
77 D. 19.1.13.1 in combination with Inst. 4.12pr. See Hallebeek, ‘C. 4.58.2', p. 267, note 3; another point is that the constitution is about a fugitive slave. Buyers of such slaves were exceptionally granted an aedilician remedy in D. 21.1.1 and D. 21.1.4.3. At the same time, it seems that Roman law denied the civil remedy for a fugitive inD. 19.1.11.7. On the other hand, D. 19.1.13.1 grants a civil remedy for price reduction against an ignorant seller, which remedy thus has a strong 'aedilician' flavour. Consequently, the Emperor's denial of the long-lasting civil remedy could also have been due to the fact that the civil remedy was ruled, because the seller had been ignorant of the slave's inclination to flee. Alternatively, the plaintiff might already have brought an aedilician remedy. The Emperor could then consider it to be against bona fides to grant another remedy which only nominally differs from the first, for the same facts (D. 44.2.1). However, humanist scholars do not pay attention to these possible interpretations of the rescript; De Bruijn, 'Accursius', p. 98.
78 Mudaeus probably has Bartolus and Da Sanbiagio in mind. Cf. Hallebeek, ‘C. 4.58.2', p. 8; De Bruijn, 'Accursius', pp. 93-95.
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