Page 447 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
right to sue for rescission and return of the paid sum of money on return of the thing ( actio redhibitoria). Under circumstances, the buyer can sue for price reduction (actio quanto minoris). Ius commune-scholars discussed this seeming duplication of remedies in the Corpus iuris civilis by means of four subquestions. (1a) Did the various remedies have different scopes of applicability? (1b) Did the aedilician and civil remedies come with distinct methods to calculate the price reduction a buyer could claim? (1c) Did the aedilician and civil remedies have divergent periods of limitation? (1d) Finally, did the buyer-friendly characteristics of the aedilician remedies speak against their redundancy?
(2) As suggested by the factual situation which forms the background of this study, there does not appear to be much difference between delivery of a defective object as part of a lease or as an obligation under a sales contract. Hence, the question was posed whether the aedilician remedies for sales could not also be applied to lease, despite the explicit prohibition of such an extension in D. 21.1.63? What argues in favour or against such an extension? This issue formed a second topic which was used as lead to developments in the early modern approach to B's legal position.
(3) Thirdly, the Corpus iuris civilis is not unequivocal about the scope of the A's liability for defects in the thing exchanged. What rules did ius commune-scholarship and legal practice employ to determine how much A had to compensate B?
(4) The fourth issues central to this study concerned the factual situation in which B turns out to have received an encumbered immovable for his money. Ius commune- scholarship frequently raised the question whether the separate provisions in the Corpus iuris civilis on A's liability for selling an encumbered immovable should not be interpreted in keeping with those governing the liability of A as a seller of a defective movable thing.
(5) Finally, since medieval times, ius commune civil law gave B a remedy for a defective thing received in the event he had, due to the defect, suffered a prejudice of more than half the thing's just price (laesio enormis). By extension of C. 4.44.2, a remedy for such a lesion beyond moiety originally reserved for sellers of immovables, medieval ius commune granted a similar remedy also to buyers. Yet, the aedilician and civil remedies for defects, in theory, also remained available alongside the remedy for lesion beyond moiety. How did early modern scholars and practitioners offset these competing remedies against each other?
9.2.2 Findings
(1) A major branch of medieval scholarship had further deepened out and emphasised to what extent the two sets of civil and aedilician remedies for defects in the object remedies differed. Driven by a textual analysis of the pertinent Digest and Codex texts, the glossators Azo and Accursius and the commentators Bartolus and Baldus held that the aedilician remedy for returning the thing only lay in the event of corporeal defects. Non- corporeal defects could only be remedied with the civil remedy for fraud (1a). Similarly, these scholars held that the aedilician and civil remedies had separate methods for calculating the price reduction the seller of a defective item owed the buyer (1b). The
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