Page 445 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
9.2 Summary
This book examined legal recourse for recipients of things exchanged for money, if the thing exchanged turned out to be defective. It explored how continental Western European legal doctrine and practice of the early modern period (1500-1800) formulated the recipient's remedies against the background of Justinianic Roman law, which in the High Middle Ages had become part of the ius commune. Since early modern legal debate about remedies for defects in things exchanged for money mainly evolved around sales and lease of objects, this study focussed on the Roman law remedies in their ius commune- clothing available under those types of contracts.
Justinianic Roman law provided various remedies for sales and lease in which the exchanged item turned out to be defective. First, Justinian's Corpus iuris civilis contained remedies which had once been formulated by the aediles, the Roman supervisors of the slave market on the banks of the river Tiber. These had granted the buyer remedies based on defects in sold cattle and slaves. Under certain circumstances, a buyer could sue for the price paid upon returning the thing received (actio redhibitoria) or for reduction of price (actio quanti minoris). Justinian's compilation extended the aediles' remedies to all goods. Besides these aedilician remedies, Justinianic Roman law granted the buyer a contractual action, the actio empti, with which the buyer could bring similar remedies.1
Justinianic Roman law was far from clear on how these various remedies related. As a result, controversies arose in medieval legal scholarship about the correct interpretation of the Corpus iuris civilis' provisions. The result was an intricate web of legal options which early modern legal scholarship had to come to terms with.
A second possibility to remedy a defect in a thing exchanged for money provided for by ius commune-scholars was rooted in C. 4.44.2. According to Justinianic Roman law, this provision granted a seller of a plot of land a remedy in the event of a significant imbalance between the land's just value and the paid price. Medieval legal scholarship extended this remedy to both buyers and lessees of both movables and immovables. If the sum the recipient had paid amounted to more than one and a half time the just value of the object or its use, the recipient had been enormously prejudiced (laesio enormis). He could then claim that the promissor restore the imbalance either by rescinding the contract or by paying back part of the price. Consequently, if a defect in a thing exchanged had brought about the prejudice, the recipient could besides the remedies based on the presence of a defect bring this remedy for lesion beyond moiety based on an imbalance between the parties' performances.
Early modern legal doctrine and practice expressed the legal options granted to a recipient of a defective thing in terms of these aedilician and civil remedies for defects and the remedy for lesion beyond moiety. This study explored how the interpretation of these Justinianic Roman law concepts changed throughout the early modern period by studying the works of scholars who were part of the major currents in legal thinking which the period
1
See 1.1.1.
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