Page 442 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Nine. Summary and concluding remarks
9.1 For the last time: B's remedies
Let us for a last time briefly resume which legal remedies stood at the disposal to B throughout the early modern period. B was one of the actors in the following factual situation:
A agrees to deliver a thing to B. B agrees to give A a certain sum of money in exchange for receiving the thing in his possession. The thing appears to be defective and therefore does not correspond to what A and B had agreed on.
The corresponding question, which the scholars and practitioners central to this study posed, was:
What legal recourse is open to B now that the thing he received turns out to be defective?
The research was limited to legal doctrine based on ius commune as it developed out of the Corpus iuris civilis. It appeared that defects in objects were mostly treated with reference to sales and lease. Moreover, the scope of the prejudice B had suffered determined whether B had additional remedies at his disposal based not on the defect in the thing, but on the disparity between the sum of money B had handed over the A and the thing A had in exchange delivered to B determined.
B's legal options for compensation for the defect in the item he had received varied significantly through time.
At the dawn of early modern times, ius commune provided a
multitude of remedies which could at some point apply to B's exchange of money for a
defective thing. One group of remedies evolved around the defect. It granted B the
possibility to give back the object received to A in return for the sum of money B had given
to A. Alternatively, B could claim back only a part of the sum of money paid and keep the
thing in his possession. The first group of remedies based on the object's defectiveness (or
quality) was further divided into aedilician and civil remedies based on an edict
promulgated around 100 BC. As a result, the factual situation as spelt out above evoked
remedies which varied regarding what thing had been exchanged, the time within which
they had to be instituted, their methods to assess the thing's price, and the scope of A's
liability.
Another remedy came within reach, if B had suffered a prejudice of more than half
the thing's price. This remedy was not based on the thing's quality but on B's prejudice. It
started from the supposition that if B had given more than one and a half times the sum
commonly given for the thing exchanged, a lack of equilibrium between A's and B's
performances had occurred, which rendered the agreement unfair. A could either accept
the option of saving the exchange by returning to B a part of the sum of money B had paid
in order to restore the equilibrium required between the A and B's mutual performances.
This remedy for lesion beyond moiety overlapped with the remedies based on defects in
the exchanged object, if the defects resulted in a prejudice of more than half the object's
common value. Though medieval ius commune did not demonstrate how this concurrence
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