Page 214 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
encountered.
Cujas' and Doneau's treatment of the aedilician remedies' buyer-friendly features
presented a similar picture (4.2.1.4). Cujas kept the favourable characteristics intact, because these were inescapably stated in D. 21.1.44 and D. 21.1.23.4. In doing so, Cujas passed over the fact that in the Roman law text D. 21.1.44.1 the aedilician remedies could be brought against any seller in solidum only if the seller had sold in a partnership with the purpose to sell slaves (societas venaliciariorum). Doneau, on the other hand, dismissed the buyer-friendly features. He considered the remedies for defects a part of the action on the contract for non-performance in which the mentioned features had no place. The aedilician remedies' penal character supposed by Cujas was a misreading of the words in duplum which meant no more than that the seller of a defective item who had successfully been sued had to do two things. First, he had to return the sum paid. Secondly, he had to absolve the buyer from the duty to pay.
A topic about which humanist views diverged from the medieval communis opinio concerned the extension of the aedilician remedy for returning the thing to lease (4.2.2). D. 21.1.63 seemed to oppose that. Medieval legal scholarship had accordingly dismissed the possibility to bring an actio redhibitoria in lease. A majority of legal humanists, including Doneau, adopted the medieval ius commune view. Cujas, however, interpreted D. 21.1.63 exactly the other way round. With the help of typically humanist tools he argued in favour of extending the aedilician remedy to lease.
Concerning the scope of the seller's liability for defects in the thing sold, humanist scholars agreed with their medieval predecessors that the rule of D. 19.1.13pr. was the general rule which had to be applied (4.2.3). The knowing seller is liable for more than the seller who was not aware of any defect in the object he sold. The Digest texts D. 19.1.6.4 and D. 19.2.19.1 according to which an ignorant seller or lessor is nonetheless found liable for all contractual loss humanist legal scholars interpreted in another fashion than their medieval colleagues. In particular, Mudaeus and Dumoulin noted that professional sellers meet with an increased liability, either because these should have been aware of the bad quality of their wares, or because professional merchants tacitly warrant the merchandise's good condition. This view had not made headway in early modern Castilian civil law, where scholars explained the texts in the medieval ius commune-way or by means of a presumption of fraud. Doneau and Cujas provided unique historical and scholastic solutions to the mentioned text which, however, would not exercise influence on later thinking about the law governing defects in the thing sold.
Yet, Doneau did provide long-lasting legal views about the seller's liability for encumbrances on immovables. The rules concerning this matter in the Corpus iuris civilis are ambiguous and gave rise to many difficulties, as the chapters on medieval and early modern Castilian law demonstrated. Legal humanist scholars strove to bring the seller's liability for encumbrances in line with that for defects in movables. In order to do so, Digest texts in which the ignorant seller of encumbered immovables was not liable at all needed
204