Page 188 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
'On various grounds there is a strong case for extending the aedilitian edict to locatio conductio. For instance, if I lease a house for five years and I find out in the first year the house is rotten, unwholesome, bad for your health, why will I not be allowed to sue for returning the thing, so that the landlord takes back the house and we rescind the contract for lease? Surely, this appears to be the drift of Zeno's constitution C. 4.65.34, on the ground of which landlord and tenant are at liberty to rescind the contract with impunity wherever within a year, unless something else has been agreed on... The constitution is in Greek and its wordings remain in the Basilica: 'The decree provides that both lessor and lessee be allowed to rescind the lease as well in Italy as in all provinces and that a fine for breach of contract need not to be paid, unless at the time of the contract's conclusion they have explicitly agreed to exclude that condition or have orally renounced such right.'127 And about this constitution you can read that it was written in a most ancient handwriting coming from places where everything was practised in court.... In these titles you must not pass over this beautiful law which provides for allowing rescission of a lease contract within one year, without having to pay a fine'.128
Cujas here provides a clear example of what his humanist strict letter approach could achieve. Never reasoning beyond the literal text of D. 21.1.63, he nevertheless manages to give a new twist to an age-old debate in which the communis opinio seemed to have become bogged down.
A wholly different approach is taken by Doneau. 'Lease, after all, does not envisage a change of ownership. Sales, on the other hand, is concluded on the condition that the thing sold remains with the buyer perpetually', so Doneau believes.129 Dumoulin and Hotman had already expressed similar views. The actio redhibitoria was exclusively reserved for sales. Medieval communis opinio continued to live on in the writings of some of the most renowned humanists.
4.2.3 Increased liability
Almost all humanist scholars who were studied for this chapter accept as a ground rule
127 B. XX, 1, 95 = C. 4.65.34. Adapted translation of Bluhm's. Bluhm, Justinian Code, Annotated, book 4 <http://hdl.handle.net/10176/wyu:12399>.
128 Cuiacius, Opera, vol. 3, p. 359 A, B: 'At ex diverso ratio non parva est producendi aedilici edicti ad locationes et conductiones: nam si forte aedes in quinquennium conduxero, ac primo anno deprehendero esse pestilentes, insalubres, male sanas, cur mihi non licebit agere redhibitoria ut locator aedes suas recipiat et recedamus a locatione et conductione? Et sane haec videtur esse mens Constitutionis Zenonis in l. pen.C.de loc.et cond. ex qua locatori et conductori impune licet ubique intra annum a contractu discedere, nisi aliud nominatim convenerit... Graeca est constitutio, cuius haec verba restant in Basilicis. Ἡκατέρῳ διάταξις ἐπιτρέπει καὶ τῷ μισθώσαωτι καὶ τῷ μισθωσαμένῳ ἐξεῖναι ἐντός ἐνιαυτοῦ λύειν τὴν μίσθωσιν καὶ ἐν Ἰταλίᾳ καὶ ἐν πάσαις ταῖς ἐπαρχίαις καὶ μὴ διδόναι πρόστιμον ὡς ἐκ παραβασίας, εἰ μὴ ἄρα ἐν ἀρχῇ τοῦ συναλλάγματος ἀπετάξαντο ἰδικῶς τῷ τοιούτῳ συμφώνῳ ἢ ἀγράφως ἀπεῖπον. Et de hac lege ita scriptum legi in antiquissima notatione locorum quibus quaeque res in iure tractetur... In illis autem titulis non praetermittas illam pulcherrimam legem, qua cavetur licere intra annum sine poena a contractu conductionis recedere'.
129 Donellus, In titulum, to D. 21.1, p. 283: 'Et placet ... neque ad locationes \[pertinere\], quia non similiter locatio, ut emtio fiat. Locatio enim dominium mutare non solet: emtio sic contrahitur, ut apud emptorem res perpetuo maneat'; Klempt, Grundlagen, p. 22.
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