Page 37 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
2.2 Medieval ius commune on the law of latent defects
2.2.1 The aedilician remedies: redundant rules?
Justinianic law recognised various competing remedies which a buyer of a defective thing could bring. The Corpus iuris civilis contains remedies for defects in the thing sold based on the aedilician edict. In addition to these remedies, in the event of defective goods, it was also possible to bring an action on the sales contract. Consequently, the Corpus iuris civilis had two sets of remedies. Yet, although the sets are assigned a different place in Justinian's compilation, the content of the remedies seems to overlap. Both provide the buyer with a remedy for price reduction or rescission of the contract. Medieval scholars were puzzled why the Corpus iuris civilis contained such an apparent duplication of remedies and spilled much ink over the issue whether perhaps one of the sets was actually redundant.
2.2.1.1 Scope of the civil and aedilician remedies
'It should not be understood that when we say that an actio redhibitoria is brought on sales we mean to say that there is a returning of the goods because of defects and deficiencies based on a civil law action (de iure civili per actionem ex empto). On the contrary, we should comprehend that there is brought an action on sales derived from the aedilician edict (ex edicto aedilium per actionem ex empto)'.7
The Bolognese glossator Azo († 1230) saw the civil and aedilician remedies as being distinctly different from each other. The content of the latter was determined in the aedilician edict,8 for which Justinian had reserved a separate title in book 21 of the Digest.
A first difference between the civil and aedilician remedies for latent defects Azo notes is that the Corpus iuris civilis' texts distinguish between the kind of defects and their corresponding remedies. In some instances, the aedilician remedy for returning the thing of book 21 was not available. Azo states that:
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Azo, Summa Theol., to C. 4.49, no. 17, p. 429: '... porro quod dictum est redhibitionem fieri per actionem ex empto, non est ita intelligendum, ut nomine morborum vitiorum fiat redhibitio de iure civili per actionem ex empto. Imo, fit ex edicto aedilium per actionem ex empto... '; Dilcher, Leistungsstörungen, p. 229.
'Maybe there is only an actio redhibitoria lying for non-corporeal defects in cattle, see D. 21.1.1 and 43. The same actio redhibitoria, however, cannot be
Dilcher, Leistungsstörungen, pp. 229–30.
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