Page 227 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
Franeker in the northern province of Friesland in 1643 states in keeping with Doneau, Cujas, Hotman and Wesenbeck that the aedilician remedies do not lie for non-corporeal defects.58
Nevertheless, Ulrik Huber, Wissenbach's pupil successor at Franeker University, does not seem to adopt the latter's view. In his Praelectiones Huber refers the reader interested in the civil remedies for latent defects to his treatment of the aedilician edict. 59 There, Huber reports a case of barter of horses to illustrate how the aedilician and civil remedies relate to each other in Frisian legal practice. Huber admits that the remedies once provided for by the aediles still have a minor role to play. However, this does not hold for the distinction between corporeal and non-corporeal defects.
'However, these differences are no longer in use, because today's custom does not use the distinction between the remedies any longer, as I said. Yet, the things expounded in this title have not lost their use in its entirety. Both the remedy for returning the thing as well as the remedy for price reduction may be brought, if only the defect or its near cause antecedes the sale, because what follows after the sale is for the buyer's risk, unless he had agreed otherwise, C. 4.58.3. If indeed the defect preceded the sale, the aedilician remedies are granted... , which you can gather from the cases Johannis Sapeus v Sictus Feiconis and others, reported by Nauta.... The plaintiff had bartered a horse from the defendants on the weekly market of Berlikum60. Ten or 12 days after the delivery the horse was dead. Then, when it was dissected, it appeared that its intestines were corrupted and eaten away by yellow and rotting pus which had accumulated there over a long period, from which it is clear that death had resulted. The defendants were condemned to pay back the price61, despite the testimonies of other horse-traders, as if the mores among horse-traders would bring about that they would not have to answer for more than three defects... As concerns the trader's ignorance; it frees him from the full obligation to reimburse the defendant's entire interest, D. 19.1.13pr., but does not liberate him from the aedilician remedies, D. 21.1.1.2'.62
58 Wissenbach, Exercitationum, to D. 21.1, no. 9, p. 409: 'Venditor, inquam, etiam ignorans, ob vitium morbumve tenetur, ob servitutem vero, vel tributum, ita demum obligatur, si sciens servitutem vel tributum retinuerit, l. 1, §1, l. Si sterilis 21, §1 \[D. 19.1.21.1\], l. Quaero, 39 \[D. 19.1.39\], l. 41, de act. empt \[D. 19.1.41\]. Ratio discriminis est, quia ob morbum vitiumve rem habere non licet servitus vero vel tributum non est impedimento, quominus sub isto onere habere, possidere, frui, liceat, d.l. Julianus, 13, §item qui furem, \[D. 19.1.13.1\]. l. 1, §proinde, h.t \[D. 21.1.8\], Don. 13, Comm. 3, sect. non eadem causa \[Doneau, Commentarii, vol. 7, book 13, ch. 3, §6\]. Denique actiones Aedilitiae non dantur ob vitia animi, regulariter, d.l. I, §, pen \[D. 21.1.1.9\]. Civiliter dantur, l. Ob quae, 4, pr. eod. \[D. 21.1.4pr.\]. Cuj\[as\], Hotom\[anus\], Wesenbec\[k\], paratit. ff. h. Borch. de pact., c. 5, n. 49 \[?\]',
59 Huber, Praelectiones, to D. 19.1, no. 6, p. 1007: 'De vitiis rerum venditarum, locus erit agendi in tit. de Aedilitio Edicto'.
60 A Frisian hamlet, formerly called Berlikum, situated between Leeuwarden and Franeker. See Nota, Tweetal van kerkelyken leerreden, p. 127.
61 This is strange in a permutatio. Perhaps an additional payment was made on top of the thing handed over by the 'buyer' in exchange of the horse?
62 D. 21.1.1.2: ...etiamsi ignoravit ea quae aediles praestari iubent, tamen teneri debere; Huber, Praelectiones, to D. 21.1, no. 5, p. 1080: 'Sed hae discrepantiae quod ad genus actionis, moribus, ut dixi, hodiernis nullum amplius usum habent;nec ideo tamen, quae in hoc titulo traduntur, usum habere desinunt: Sed tam redhibitoria quam aestimatoria licet experiri, si modum vitium vel ejus causa proxime
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