Page 29 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
which the civil remedies did not. Classical and Justinianic Roman law state that when the defendant against whom an aedilician remedy for returning the thing had been brought refuses to return the sold object or to otherwise fulfil his obligations will be condemned for the double amount.34 This clause resembles a punitive clause, such as the adversus infitiantem in duplum-clause under the lex Aquilia.35 As such, it induced the humanist Cujas to qualify the aedilician remedy for returning the thing as penal. However, the remedy could be raised against the heirs of the seller, which a true penal action basically could not.36 Be that as it may, the clause adds a distinct buyer-friendly flavour to the aedilician remedy for returning the thing. Another buyer-friendly feature is in D. 21.1.44.1. In the event of more sellers had who formed a partnership with the purpose to sell slaves (societas venaliciariorum), the duped buyer could sue all sellers for the entire sum (in solidum), something which the action on the sales contract and its remedies did not allow for. These aedilician remedies' favourable characteristics – from a buyer's point of view that is – were subjected to changing opinions in early modern legal thought about whether the distinction between aedilician and civil remedies for defects in things sold should be upheld or not.
(2) A second topic which medieval and later ius commune-scholars continued to struggle with was that it seems common sense enough to apply the aedilician remedy for returning the thing to contracts other than sale, but that D. 21.1.63 explicitly opposes such an extension to lease. To argue in favour of extending a Roman law remedy limited to one specific contract to another not only demanded a certain amount of bravery but also convincing argumentation. One of the most intriguing subjects in legal history is that, eventually, ius commune-scholars ventured to demolish these and similar walls of Roman law. The question of extending the aedilician remedies to lease can serve as a vehicle for finding and illustrating how this process evolved. Conversely, Justinian's Corpus iuris civilis contains remedies for lease too. To what extent do these remedies reduce the need for an extension of the aedilician remedies to lease?
(3) A third controversial issue concerns the scope of the seller's liability. Justinianic Roman law provides rules about an increased liability in the event a seller already knew of the defect in the thing before concluding the sale.37 In that event, the seller is liable not only for returning the price paid, but for the buyer's consequential loss as well. Yet, in a puzzling Digest text, a seller of barrels is liable for all the buyer's loss even though he had not been aware of the barrels' being defective.38 Consequently, from medieval ius commune onwards the question is posed whether a seller who was not aware of the defect faces
34 D. 21.1.45
35 D. 9.2.2.1: Et infra deinde cavetur, ut adversus infitiantem in duplum actio esset; D. 11.3.5.2.
36 That the Roman jurists themselves were puzzled by this qualification of a contractual remedy can be
gathered from D. 21.1.23.4 in which doubts are expressed whether the remedies can also be brought against those who are not sui iuris (...quamvis enim poenales videantur actiones, tamen quoniam ex contractu veniunt, dicendum est eorum quoque nomine qui in aliena potestate sunt competere)'.
37 D. 19.1.13(14)pr; D. 18.1.15.
38 D. 19.1.6.4.
13