Page 177 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
which the heading of this title refers. All the more since what is asked for is without doubt explicitly mentioned in the constitution itself, namely, on what ground or in what way and with which remedy can a buyer sue the seller and start proceedings under the given circumstances. Who, I ask, would turn to the Emperor to hear him advising the stringent words: 'which praetorian remedy in the world you think will be granted to you? Remedies about which you should have informed yourself in front of the praetor first, since there you would have learned to distinguish the praetorian from the civil remedies or at any time have heard about the distinction. Why did you inquire so verbosely about the praetorian remedy only?"79
Mudaeus argues that no one who knew of a difference in limitation between the civil and praetorian remedies would be so foolish as to bring an aedilician action after one year had passed, because the Emperor's answer would then surely be negative. Since every Roman had to visit the praetor first, all of them were acquainted with the difference. Hence, the constitution is not about the praetorian remedy and the question must have been whether the remedy on the sales contract was still available after the limitation period applicable to the aedilician remedies had elapsed. The only thing asked by the plaintiff was whether a remedy lay when a slave took to his heels more than a year after the sale. Since this is denied in C. 4.58, Mudaeus concludes as follows.
'Hence, we say that every remedy aimed at price reduction because of a defect in the thing bought, or because of the absence of something, which the seller had promises about the thing, is annual'.80
Mudaeus thus follows in the footsteps of the ultramontani De Révigny and De Belleperche, who had also argued for a dismissal of the perpetual limitation of the civil remedies for latent defects. Yet, Mudaeus construes an argument in which he goes against the denial of the historical origins and context which some commentators had allowed themselves in order to keep the Accursian distinction alive. That is something which the ultramontani had never done.81
Dumoulin also rules out the long limitation, but he does so on more systematical grounds than Mudaeus. Also arguing from the Codex text in which the Emperor could not think of a civil remedy after the six-month limitation of the aedilician remedy had lapsed, Dumoulin qualifies as 'doubtful' Baldus' view that the longer-lasting remedy can still be
79 Mudaeus, De contractibus, to D. 19.1.13, no. 15, p.184: 'quam autem non sit hoc verisimile, ne dicam esse ridiculum, quod alii, ut eam obiectionem effugiant, attulerunt, interrogatum fuisse Imperatorum de solis praetoriis actionibus, nimirum aedilitiis, de quibus illius tituli inscriptio est, nemo non videt, maxime, cum in ea ipsa constitutione expressim legatur, de quo fuerit interrogatus, nimirum, qua ratione, sive qua via et actione eo nomine posset cum venditore congredi, et iudicio certare. Et quis, quaeso, sic adit Principem, ut restrictis verbis consulat, quaenam praetoria actio ei competat, de quo Praetor potius esset interrogandus, etsi ibi emptor civilium actionum a praetoriis novisset, vel unquam audisset discrimen, cur tam diserte de praetoria tantum actione rogasset...?'
80 Mudaeus, De contractibus, to D. 19.1.13, no. 16, p. 184: 'Quare omnem actionem quanti minoris ob vitium rei venditae, vel ob non compertum illud, quod de ea re venditor affirmavit, dicemus esse annalem'.
81 See 2.2.1.3.
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