Page 35 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Two. Medieval ius commune on the remedies for defects in a thing exchanged for money
2.1 Introduction
'Therefore, let no one proclaim that in any part of the aforementioned code there exists an antinomia ... No, let the code be one of agreeing voices, of one outcome against which no contradiction is promulgated'.1
Thus Emperor Justinian in one of the introductory constitutions to the Digest. In 12th century Bologna, legal sciences blossomed. The reappraisal of a copy of Justinian's Digest in combination with a favourable scientific climate at the time prompted a feverish growth in legal scholarly activity. The scholars of the age where filled with awe for the Roman writers' sophisticated mind and clarity of expression. Ratio scripta, pure reason expressed in words, was the epithet that medieval writers began to use as an expression of the great respect they felt for the Ancients' achievements. However, despite Justinian's claim to the contrary, the Digest was not altogether free from contradictory texts, particularly for the law of contract. This should not have been surprising, since in the words of Gordley:
'As has often been said, the Romans had no theory of general law of contract. They had a law of particular contracts such as sale, lease, pledge and partnership, each with particular rules which they had worked out ad hoc. They had not tried to explain in a general or systematic way why these contracts had the rules they did or what features all contracts had in common'.2
As a consequence, Tribonian and his fellow compilers had to face an awesome task in ferreting out all possible contradictions in the body of Roman law texts, which had been passed down; a task in which inevitably some antinomiae would be missed. This process left some work to the late medieval scholars who again took upon themselves to join the same enterprise.3 Starting with Irnerius († c. 1130 AD), medieval scholars made the Roman texts the subject of extensive study and debate.
This chapter explores how medieval scholars tried to solve the antinomiae and other encountered difficulties of interpretation while studying the provisions in the Corpus iuris civilis concerning latent defects and lesion beyond moiety. The ambiguous Roman law texts offered the medieval glossators and commentators an opportunity for distinguishing, dividing and categorizing the circumstances which determined when a remedy was available. Consequently, medieval sales law about latent defects too failed to escape that notorious feature of medieval scholarship which vexed later humanist scholars, such as Claudius Cantiuncula (149?-1549) who vented severe criticism over the
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Const. Deo auctore, §8: ´Nulla itaque in omnibus praedicti codicis membris antinomia... aliquem sibi vindicet locum, sed sit una concordia, una consequentia, adversario nemine constituto'.
Gordley, Origins, pp. 30-31.
See for how the two humanists Jacques Cujas and Hugues Doneau let themselves be inspired by their medieval predecessors my study, 'No one is a better jurist', pp. 81-89.
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