Page 250 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
already provided a suitable remedy.
Finally, Heineccius utters something what seems a definite condemnation of Cujas'
argument to oblivion:
'Why does the authority of the edict cease in lease? Because the lessee does not suffer damage, if the defective or ill slave carries out the ordered work in the right way, and if he does not carry it out rightly or causes damages to the lessee, the lessee can bring an action on lease, which does not pertain to the aedilician jurisdiction - which only possesses authority over the forum -, but to the praetorian jurisdiction. I wonder what insight came to Cujas' mind to extend the aedilician edict also to lease?'171
Heineccius declares Cujas' extension of the edict more the product of academic ingenuity than of a down-to-earth problem-solving attitude.
5.2.2.1 Roman-Frisian legal doctrine on extension to lease
Similar to their Roman-Dutch colleagues, Roman-Frisian legal scholars explicitly argue against extension of the aedilician remedies to lease. Wissenbach, however, provides a somewhat different underpinninging.
'... The law of the ancients came to the aid of sellers who were deceived in the thing's quality, D. 21.1.1ff. It did not help those deceived in the price, were they buyers or sellers, D. 4.4.16.2, D. 19.2.22.3. After all, the ancient law allows for deception, as long as a sound thing is delivered which we can possess and use unhampered, Baldus, Lectura super Codice, to C. 4.44.2, Bachovius, Notarum et animadversionum ad disputationes Hieronymi Treutleri, vol. 2, 20.1, pp. 204-205 E.'172
According to Wissenbach, ancient Roman law, as he calls it, did not consider it problematic when a buyer or lessee paid a higher sum or rent than usual in a sale or lease of the item in question. A price deviation was not in itself something in need of correction, unless the excess of price consisted of half the thing's just price.173 Yet, the aedilician edict exempts buyers who had been duped with regard to the leased object's quality. Hence, the only reason why buyers could sue because of defects but lessees could not was that the aediles had called into existence demands of quality for the first, but not for the latter. Again, Wissenbach construes an historical argument to defend what he finds in the Corpus iuris civilis. He interestingly reaches a solution contrary to Cujas' who used the same approach but concluded that the a lessee should also be able to sue because of a defect in the thing leased.
Wissenbach's student Huber presents the more pragmatic argument against extension of
171 Heineccius, Ad aedilitium edictum, 3.3, p. 73: 'At cur in locationibus exsulat edicti auctoritas? Quia nec damnum patitur conductor, si morbosus vitiosusve servus locatas operas recte praestet, et si non praestet, vel damnum det conductori, ei competit conducti actio, quae vero non ad Aedilium, fori tantum curam habentium, sed praetoris, iurisdictionem pertinebat. Quam rationem miror in mentem venisse Cuiacio, ad locationes etiam porrigenti edictum aedilitium'.
172 Wissenbach, Exercitationes, to D. 21.1, no. 8, p. 408:'\[8\] ... Iura vetera succurrunt emptoribus, deceptis in re vendita, d.l. I et tot. tit. ff. de aedil.edict. Non succuruunt deceptis in pretio, sive emptoris fuerint, sive venditores, l. In causa 16, § Pomponium, 4, D. de minor., l. 22, § quemadmodum, 2, D. locat. Hactenus nempe permiserunt prisca iura deceptionem, ut tamen res traderetur integra, quam habere, et qua recte uti possimus. Bald. in l.2.Cod.de resc. vend., coll. 3, q. 2. Bachov., d. disp. 2\[0\], th. I, lit. E.'.
173 The laesio enormis spelt out in C. 4.44.2.
242