Page 213 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
objective price into account and the civil method of computation based on what the buyer declared under oath what he thought the item was worth. On the other hand, notably Mudaeus argued against such a distinction. According to him, there was only one method by which to determine what reduction the seller should grant and that was the one based on the thing's objective value. One argument Mudaeus proposed was that it was not allowed that the buyer took an oath against someone in good faith. Seeing that the aedilician remedies also lay against sellers in good faith, the Corpus iuris civilis could never have contained a subjective price assessment. As a consequence, the indications of a subjective price reduction which medieval scholars had surmised in the Corpus' Latin had to be dismissed.
Mudeaus' reasoning strongly resembles how medieval ius commune scholars worked. Cujas and Doneau similarly defended the view that there was only one way to calculate a reduction of price and that it had to be based on the item's objective value. However, they did not go beyond stating what the medieval scholars from Orléans had already brought forward. Viglius von Aytta in his personal notes made as assessor to the Reichskammergericht too defended that the highest appellate court in the German regions should exclusively apply the objective computation. The arguments Vigilius put forward had the same mos Italicus-flavour as the reasonings produced by his teacher Mudaeus. Hence, Mudaeus' doctrinal writings and Viglius' diary provide beautiful examples of how legal innovation by legal humanists was sometimes thoroughly rooted in medieval jurisprudence (4.2.1.2.1).
A similar innovative approach to law was encountered in the discussion about the limitation periods of the various remedies for defects in the thing sold (4.2.1.3). Again it was Mudaeus who argued on the basis of Roman law texts against the medieval communis opinio that aedilician and civil remedies for defects in the thing each possessed their own limitation. Reinterpreting C. 4.58.2, Mudaeus in his belief corrects the distortion of historical facts by medieval commentators. In his view, a correct historical reading of the rescript left no room for a perpetual remedy for a defect in the object sold. Doneau in addition disqualified Bartolus' argument that because of the fact that the rescript was put in the rubric 'On the aedilician remedies' it could only be about the aedilician remedies. As such, Doneau demonstrated an historical awareness of the coming into being of the Corpus iuris civilis, which he consequently used to reinterpret the law it contains. Yet, despite Mudaeus' and Doneau's arguments in favour of the short aedilician periods for remedies for latent defects, Wesenbeck and even Cujas upheld the Accursian distinction between short-lasting aedilician and everlasting civil remedies. Cujas ascribed the short periods of the aedilician remedies to their penal character. Cujas, the standard bearer of legal humanism, did not hesitate to accept medieval solutions to solve contradictions in the Corpus iuris civilis. The difference between Cujas and Doneau illustrated their respective goals. Doneau systematised the civil law and had no qualms about discarding unruly texts. Cujas, contrariwise, went at length to provide explanation for whatever text he
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