Page 28 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
defective object.29 Justinian's Code contains two sets of seemingly similar rules for the latter. Title one of Book 19 of the Digest, which discusses the actions available on the sales contract (actio empti), contains the action for returning the thing (actio redhibitoria) and the action for price reduction (actio quanti minoris) in case a thing turned out to be defective.30 However, the first title of Book 21 on the aedilician edict also provides for an actio redhibitoria and an actio quanti minoris. If B has bought a horse that turns out to suffer from an unknown disease, which of the remedies should he use? Those mentioned in book 19 or those of book 21? Could it be that one of the sets is actually redundant or does each one serve a specific purpose? Ius commune-scholars discussed this question by means of four subquestions.
(1a) One answer medieval scholarship provided to counter allegations that the remedies in the Corpus iuris civilis were superfluous, was that the remedies in books 19 and 21 had a different scope. D. 21.1.4.4 suggests that the aedilician remedy for returning the thing only lies in the event of corporeal defects.
(1b) Furthermore, the civil and aedilician remedy for price reduction require a standard for the determination of the thing's just price in order to be able to assess the reduction to which the bamboozled buyer is entitled. Texts in the Corpus iuris civilis suggest that the civil remedies of book 19 were accompanied by a different method of price assessment than the aedilician remedies. According to medieval ius commune-legal scholarship, the civil remedies came with a subjective standard based on the buyer's personal feelings with regard to the thing's value. The aedilician remedies involved an objective price determination based on the thing's market price at the time of the sale's conclusion.31 Roman law is not explicit on what assessment method is to be preferred. Nevertheless, it provides room to question the medieval assumptions where it states that prices of things do not depend on affections or use to an individual but on what is commonly observed.32 Should the idea that one set of remedies should be based on the buyer's subjective feelings be abolished then? The scholarly views on this subject changed continuously throughout history.
(1c) Another point that touches upon the question whether or not some remedies for defects in the thing sold might be done without regards their limitation periods. In Justinianic Roman law, both civil and aedilician remedies have their own periods within which they have to be instituted. The civil remedies are perpetual, whereas the aedilician ones are limited in time.33 How do early modern scholars deal with seemingly identical remedies to which divergent periods of limitation applied?
(1d) Finally, the aedilician remedies appear to possess buyer-friendly characteristics
29 The remedy for lesion beyond moiety was only available to sellers of plots of land and therefore played a marginal role until the days of medieval ius commune.
30 D. 19.1.11.3 (redhibitio); D. 19.1.13(14)pr. (quanti minoris); Hallebeek, 'The Igorant Seller's Liability', pp. 179-184.
31 D. 21.1.31.5; D. 21.1.38pr:
32 D. 35.2.63pr.; Baldwin, Medieval theories, pp. 21-21.
33 D. 21.1.19.6 (aedilician remedies); Inst. 4.12pr.; Hallebeek, 'The Ignorant Seller's Liability', p. 180.
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