Page 21 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
civilis.8 The aedilician remedies were brought under titles D. 21.1. and C. 4.58, the civil remedies under titles D. 18.5, D. 19.1 and C. 4.49.9
As a result of all this, according to Justinianic Roman law a buyer of a defective thing could bring either an aedilician remedy based on D. 21.1 and C. 4.58 or a civil remedy as contained in D. 18.5, D. 19.1 and C. 4.49. These sets of remedies had different characteristics. The aedilician remedies were limited in time, applicable only to non- corporeal defects and based a possible price reduction on an objective value assessment of the sold thing. On the other hand, the civil remedies lasted perpetually, applied to all defects and calculated a price reduction by looking at the thing's subjective value. It remains unclear to what purpose both sets of remedies were incorporated in Justinian's Corpus iuris civilis.10
Another way to remedy a sale gone awry in Roman law developed out of the remedy in C. 4.44.2, granted to a seller of a plot of land, who had been duped for more than half the land's just price. Suppose the land was worth 100, but the seller sold it for less than 50, the latter could then sue the buyer, because the price deficit amounted to more than 50, i.e. more than half the land's just price, or, in other words, because the seller had been prejudiced for more than half the land's just price.11 This remedy became known by the Latin words which express that a lesion beyond moiety had occurred, in Latin a laesio enormis. The remedy steered towards a restoration of the parties' positions before the sale (restitutio in integrum). The buyer could either avoid this restoration by an additional payment up to the value of the just price, or acquiesce and restore the seller in his position before the sale. In the latter case, the buyer had to return the thing and the seller to repay the received sum. The Roman law texts C. 4.44.2 and 8 grant this possibility only to the seller of a plot of land. Roman law therefore does not tell us anything about whether also a buyer could be considered prejudiced for more than half the price, for example when the object he had bought suffered from a latent defect. It does not follow from Roman law sources that due to the condition of the object the price asked for it was too high and could no longer be considered just. However, this would change in late medieval ius commune. Medieval scholars would extend the remedy for lesion beyond moiety to buyers and sale of moveables. From that moment on, not only prices lower than the just price, but also prices higher than what could be considered just on the basis of the object's condition were open to attack on the grounds of laesio enormis.
Roman Justinianic law about latent defects and lesion beyond moiety played a major role in the future development of European sales law concerning defects in sold goods. Since the Bolognese revival of the study of Roman law around 1100 AD, scholars took great pains to consistently interpret the mentioned Digest and Codex texts. However,
8 9
The 'body of civil law', which consists of the Digest, Institutes, Code, and Novels.
De Bruijn, 'Accursius', pp. 86-87.
10 Hallebeek, 'The Ignorant Seller's Liability', pp. 183-184.
11 This is the majority view about how the prejudice should be calculated. Competing views were also
present but a discussion of those does not fall within the scope of this study. See Baldwin, Medieval theories, p. 23.
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