Page 211 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
with a defect which seriously diminishes its value and dawdles with starting a lawsuit loses
all his remedies. Or is the remedy for lesion beyond moiety still an option, even if the
remedies for latent defects have already lapsed?
To solve this question, Doneau makes both the remedy for returning the thing and
that for lesion beyond moiety last for 30 years.
235
However, in doing so, Doneau again
seems to accept two remedies for returning the thing, one civil with a 30-year limitation,
and one aedilician, which lasts for six months. Seeing Doneau's consistent argument
against the first in his commentaries to the aedilician edict, his 30-year lasting remedy
might be the result of too strong a wish to bring
divergent remedies lying for similar factual
situations in line with each other. Doneau, so it seems, became entangled in the knots of
competing remedies.
Another issue which evidences that the law of latent defects and lesion beyond
moiety are drawn toward each other concerns the extension of these remedies to lease.
Though Justinianic law originally reserved them for sales, humanists apply both the
remedies for latent defects and the remedy for lesion beyond moiety to lease. They argue
that sales and lease are too similar to treat latent defects and lesion differently.
however, is that a lessor not only has the action on the lease contract at his disposal in the
particular remedies in the event of defects and a disproportionate price. It seems that
236
A result,
event the lessee did not rightly fulfill his performances. In addition, the lessee can bring
because of the remedies' extension the law of lease has grown complex. Indeed, we will
see that later scholars retraced their footsteps and again limited the remedies for latent
defects to the sales contract.
237
235 See 4.2.1.3 and 4.3.2.
236 See 4.3.4
237 E.g. Stryk, Usus modernus, vol. 3, ad D. 21.1, § 4, p. 678; See 6.2.2.
201