Page 72 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
2.4 Remedies for latent defects vs the remedy for lesion beyond moiety
The increased attention of medieval moral theology and legal doctrine paid to the remedy for lesion beyond moiety as a fit vehicle to maintain justice in contracts had consequences for the interpretation of the remedies for latent defects. These had to be given their proper place in a framework governing cases in which someone had been prejudiced because of a defect in the thing sold next to the extended remedy for lesion beyond moiety. Inevitably, such a tangled ball of competing remedies with their own particularities caused difficulties.
A first difficulty is that – most likely under influence of contemporary theological scholarship – medieval legal scholars question the fact that the remedy for lesion beyond moiety as in C. 4.44.2 does not seem to presuppose fraud on the side of the one who receives more than his due. This is something they had not done in their discussion of the remedies for latent defects. Taking all the deliberations surrounding 'fraud in the situation itself' (dolus in re ipsa) into account, it is striking that the comments and glosses on the aedilician remedies do not really revolve around the question whether or not fraud was required to be able to bring them. Yet, in later periods, the absence of this requirement for the aedilician remedies would increasingly be questioned by those scholars who aimed to create a coherent regime of sales law. After all, why should the aedilician remedies for defects not be construed with some sort of dolus similar to the remedy for lesion beyond moiety is?152
Besides the opaque theory of dolus in re ipsa, medieval legal scholars consider that the remedy for lesion beyond moiety has some advantages over the remedies for latent defects. First, the remedy can be brought over a significantly longer period than the aedilician remedies for latent defects. Baldus revealingly concludes that this perpetual remedy 'thus is not like the aedilician remedy for returning the thing'.153 Perhaps Baldus' remark is a reaction to a proposal to render the limitation of both remedies the same. That would not have been a strange thing to do, since the demarcation between the remedy for lesion beyond moiety and those for latent defects is not at all clear. As we have already seen, medieval scholars accepted both the short aedilician periods of limitation and the 30-year life of the civil action on the contract.154
152 153
154
These divergent limitation periods posed something of a problem. Could the
See in particular early modern scholastic authors on the subject 3.2.2.1.
Baldus, Commentaria, to C. 4.44.2, no. 10, fo. 117: 'Alii dicunt que est actio ex eo contractu...et haec
est ipsa veritas...et ideo ista actio est civilis et perpetua nec est sicut illa redhibitoria quae pertinet ad aedilitias actiones'.
See 2.2.1.3
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