Page 63 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
its range. Martinus († before 1166), Placentinus, Azo and Hugolinus applied the remedy not only to prejudiced sellers but also to buyers who had paid more than half the just price. The Lo Codi (ca. 1150), a Provençal compilation, did the same.116 Furthermore, the object of sales no longer needed to be a plot of land. Other immovables as well as movables also qualified for a rescission or reduction of price in accordance with the provision.117
It remains a tantalizing question: what urged these medieval scholars to put their weight behind the remedy for lesion beyond moiety based on disproportion of price and value as being the most suited to remedy sales gone wrong? This even more so given the presence of other ius commune remedies of aedilician provenance which were specifically meant to serve that purpose. Recent literature suggests that medieval civil ius commune-scholars aimed to 'save the face of Roman law' against the encroachment of canon law upon their field.118 Ecclesiastical courts would have already applied the remedy in cases between clerics and layman at an early stage. Moreover, with Innocentius' III decretal Novit Ille in 1204 AD119 opening the way for laymen to sue each other in front of an ecclesiastical judge via a denunciatio evangelica, the remedy is said to have come within reach of all. This would have resulted in a preference for the ecclesiastical courts over the secular, where the remedy was not applied in the broad sense in which it was allowed in ecclesiastical jurisdiction.
This argument, however, is less convincing. First, the cases known from papal decretals all deal with sellers who contended selling for too low a price. Canonist scholars only rarely referred to a buyer who brought the remedy. That buyers were also able to sue because of lesion beyond moiety was mainly a civil reading of the Codex' text.120 Furthermore, such an extension of the remedy's availability to buyers is found in civil law works antedating Innocentius' III decretal, as is proven by the writings of Ugo de Porta Ravennate († between 1166-1171)121 Martinus, Placentinus and the Lo Codi statute.122 Consequently, it is not very likely that extension of the remedy's availability to
116 Full references in Baldwin, Medieval theories, p. 23; the canonists seem to have been less interested in extending the remedy to buyers. Idem, p. 44.
117 Gordley, Origins, p. 65.
118 Hallebeek, 'Some remarks', p. 21; Dolezalek, 'Doctrine of Restitution', p. 105.
119 Liber Extra, X. 2.1.13.
120 Baldwin, Medieval Theories, pp. 43-45.
121 Grebieniow, 'Die laesio', p. 206.
122 Baldwin, Medieval Theories, p. 23; Fitting & Suchier (eds.), Lo codi, 4.62, p. 127: 'similiter si res fuit
vendita ultra in duplum quam valeret, potest destrui vendicio si emptor hoc vult, eadem racione qua dictum est de vendicione'.
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