Page 245 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
Situations in which inequality resulted from a sale were corrected by the aedilician remedies. Here, the scholastic theory of fairness in exchange seems to have made headway into Huber's thoughts, which gives his account a natural law flavour. Huber keeps the aedilician edict's peculiarities intact, since they conform well with the idea that a fair outcome should be safeguarded. After all, the bargaining process served no other purpose than to fairly allocate goods.
Westenberg likewise emphasises that the aedilician edict was meant to serve an equitable execution of the sales contract: 'The aedilician edict, eviction, and \[the rules about\] usury pertain to implementing the contract and to indemnifying \[the buyers\]'.150 They have been introduced out of 'mere equity in order that buyers do not suffer from defective things bought, D. 21.1.2, 6, and D. 21.1.37.'151 For Westenberg the main difference between the civil action on the contract and the aedilician remedies indeed lies in the fact that their respective functions differ:
'the remedies on the contract usually aim at improving the implementing of the contract, not at dissolving it. Moreover, if one could sue on the contract to realise that for which the remedies for returning the thing and price reduction are given by the aediles, they \[sc. the aedilician remedies\] would be superfluous and introduced by the aediles without reason. Which is negated by C. 4.58.2.'152
Frisian scholars who were purportedly strict in their interpretation of Roman law, anachronistically imposed the function to restore bargaining inequalities on the aedilician edict. After all, it is doubtful whether the Romans created legal measures to safeguard contractual inequality irrespective of fraud. At least, such does not follow from the texts referred to by Huber and Westenberg.
In later Dutch writings similar interpretations can be found. Noodt states in his Commentarius, first published in 1716153, that:
'The reason for promulgating this edict was the following very sound one: ...between buyer and seller equal knowledge about the virtues and vices of the sold thing had to be safeguarded without which a true estimation is not possible'.154
in ignorantem, ut dictum, quam civiles ex empto, l. 13. § I. de act. empt. Nam haec ob culpam maxime comparata est; illa ad inaequalitatem, etsi culpa nullius, corrigendam, ut inter scientiam et ignorantiam non distinguatur, l. I. §. h.t. quae notabilis et forensis est differentia',
150 Westenberg, Principia, vol. 1, to D. 21.1, no. 1, p. 770: 'Ad implemetum contractuum et indemnitatem, pertinet Aedilitium edictum, evictio et usurae'.
151 Westenberg, Principia, vol. 1, to D. 21.1, no. 55, p. 785: 'ex mera aequitate ne scil. emtores rerum vitiosarum damnum sentiant, l. I. § 2. 6, l. 37. D. h.t.',
152 Westenberg, De causis obligationum liber singularis, in: Opera omnia, no. 20, p. 154: 'Sed actiones ex contractu descendentes, ordinario ad implemendum, non solvendum contractum competunt. Et si ex ipso contractu emtionis venditionis ad id agi potuisset, ad quod actiones redhibitoria et quanti minoris dantur ab Aedilibus, supervacuas eas, et sine ratione ab aedilibus introductas esse, dicendum foret'.
153 Van den Bergh, Gerard Noodt (1647-1725), p. 262ff.
154 Noodt, Commentarius, in: Opera omnia, vol. 2, to D. 21.1, p. 450 \[center right\]: 'Causa proponendi huius
edicti fuit haec optima: ...inter emptorem et venditorem servanda circa virtutes et vitia rei venditae erat aequalitas intellectus, sine qua vera quaeri aestimatio non potest'.
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