Page 69 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

2.3.2.2 Limitation periods
MEDIEVAL IUS COMMUNE
Another question which medieval jurists discussed concerned the limitation of the remedy for lesion beyond moiety. Johannes Bassianus († 12th century), Azo, Accursius, Odofredus, and De Revigny prefer the view that a claim for lesion beyond moiety has to be brought with an action on the contract which lasted for 30 years. 142 The commentators Bartolus, Baldus, and De Castro are of the same opinion.143
As already observed, medieval scholars interpreted Justinianic Roman law as containing two sets of remedies for defects in sold goods. Each set had its own periods of limitation. The remedies available with the action on the contract, being civil, lasted for 30 years, whereas the aedilician remedies knew periods of six months and one year. Accordingly, there is a huge difference in limitation between the civil remedy for lesion beyond moiety and the aedilician remedies for latent defects.
2.3.2.3 Assessment of the just price
Medieval scholars determined the just price in C. 4.44.2 by means of an objective standard. According to Bartolus
'how much the thing is worth cannot be seen through the eyes, but must be grasped by the intellect. For which reason experts in their art should be called in to do so... and if someone would want to prove it by means of witnesses, although that is difficult, he can nevertheless prove it in a simple way, if there are witnesses who say that in the time preceding to the sale and after it they have seen multiple men willing to buy the thing for such a price which is then the common estimation (communis aestimatio)'.144
materialiter faciens id quod est iniustum'; for the translation of materialiter into 'according to the occasion', see Lewis & Short, 'Dictionary', sub voce 'materialis'; that the the latin word res is frequently used for, among other things, 'event, occasion, case, object', can be read in the same, sub voce 'res' (E-F); The early modern Portuguese jurist Piñel interpreted the word res in D. 45.1.36 as 'lawsuit', Pinelus, Ad rubricam, to C. 4.44.2, 1, 1.8, p. 155. For an extensive treatment of Piñel's interpretation of the Digest text see Decock, Theologians, pp. 574-577.
142 Baldwin, Medieval theories, p. 24. De Revigny, Lectura, to C. 4.44.2, fo. 200 (below right): 'Sed dico quod agetur actione ex eodem contractu et sic erit perpetuum auxilium huius l. durabit xxx. annis...'.
143 Bartolus, Commentaria, to C. 4.44.2, no. 2, fo. 162v.: 'cum hic petatur rescindi de iure communiter quod non datur aliquo speciali favore, detur peti actione ex eo contractu et sic est vera opinio gl\[ossae\]'; De Castro, Commentaria, to C. 4.44.2, no. 12, p. 228: 'et tenet ergo gl. quod competit actio ex eo contractu'.
144 Bartolus, Commentaria, to C. 4.44.2, no. 22, fo.164: 'Sed quantum res valeat non potest videri per oculum sed intelligitur per intellectum. Et ideo debent mitti periti in arte sua ad hoc faciendum...Sed si quis \[23\] vellet probare per testes, istud esset difficile. Posset tamen sic probari uno modo levi, si de
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