Page 20 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
are meant.
In the course of western legal history, two methods for legally remedying a sale of a
defective thing emerged. The first method focused on the defect in the object. To be able to remedy the sale, the buyer had to prove the object's defectiveness. The other method was based on the object's price and only started to play a role in the late Middle Ages. If a hidden defect in an object brought about that the initially agreed price based on an object in good condition was no longer in proportion to the defective object's real worth, buyers or lessees could bring a remedy on the basis of lesion beyond moiety, if the disproportion amounted to more than half the thing's just price.2 To retrieve a remedy for the sale, the buyer had to prove this disproportionality of price but not that the thing suffered from a defect. Both methods originate in Roman law. The first took shape in particular remedies for latent defects. The second was given effect in the remedy for lesion beyond moiety, though this method did not develop before the age of the medieval ius commune.3 Both types of remedies eventually gained a place in the civil law systems of the European continent.
Initially, ancient Roman law did not provide remedies for defects in things sold, unless the seller had warranted the thing's quality or committed fraud.4 However, this rather strict law backfired on the banks of the river Tiber, where cattle and slaves were sold in large numbers by rather unreliable salesmen who were clever enough to conceal their fraud. If the seller successfully proved that he had been just as ignorant of the defect as the buyer and could not have known about it, he did not have to answer for the defect, since he had not behaved in a blameworthy manner. As a result, the buyer had to bear all incurred losses.
Pre-classical Roman law (200 – 27 B.C.) tried to remedy the buyer's predicament while attempting to steer a middle course between the position of the unknowing seller on the one hand and the duped buyer on the other. Rules pertaining to latent defects were spelled out in an edict promulgated by the aediles curules and turned into law no later than the first century B.C. According to this aedilician edict the buyer of a defective movable thing could claim a reduction of price (actio quanti minoris) or rescission of the contract (actio redhibitoria)5. By means of a rather hard to follow development of Roman civil law, remedying latent defects also became possible by instituting the civil action on the sales contract from the second century A.D. onwards.6 Furthermore, the aedilician remedies were extended to immovables7, so that the edictal remedies and the remedies available under the action on the sales contract could be brought under the same circumstances. All of the above found a place in what would later become known as Justinian's Corpus iuris
2 3
4 5 6 7
A translation of the Latin laesio enormis, which I borrow from Decock, Theologians, p. 119. Pre-Justinianic and Justinianic Roman law do not provide evidence for the remedy's application beyond sellers of a plot of land (fundus).
Zimmermann, Obligations, pp. 308-310.
De Senarclens, 'La date de l'édit', pp. 384, 392.
Kaser, Privatrecht, I, p. 557; Honsell, Quod interest, p. 82; Zimmermann, Obligations, pp. 320-321.
C. 4.58.4.1; D. 21.1.49; D. 21.1.61.
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