Page 73 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
remedy for lesion beyond moiety be brought after the aedilician remedies had lapsed? If so, then that meant that duped buyers were assured of having the remedy for lesion beyond moiety in reserve, if they had missed the period within which the aedilician remedies should have been instituted and the defects had caused a prejudice of more than half of the just price.
Conversely, if the remedy for lesion beyond moiety was ruled out after the limitation periods of the remedies for latent defects had lapsed, its duration was effectively equalled to that of the aedilician or contractual remedy depending on the kind of defect in the thing sold. In the event of a corporeal defect, the available aedilician remedies lapsed after six months (rescission) or one year (price reduction). In the event of non-corporeal defects, the actio empti for defects died after 30 years. The remedy for lesion beyond moiety would then also vary in accordance with the availability of other remedies. Its extension to fields which were of old the prerogative of particular remedies for latent defects thus created obscurities which had to be illuminated by later generations of legal scholars.
Moreover, it remained unclear which standard had to be used for the calculation of the remedy for lesion beyond moiety and, consequently, the seller's compensatory reduction calculation after selling for an unjustifiably inflated cost. Similar to the remedy for lesion beyond moiety, the remedy for price reduction for defective goods required a standard to determine the amount of reduction which the duped buyer was entitled to.155 Yet, medieval ius commune scholarship is undecided about which method of assessment a litigant had to use in court. Although both a subjective and objective assessment are defended – the first in the event of a remedy for price reduction under the contract, the other in the event of the aedilician variant – notably the ultramontani De Revigny and De Belleperche argued for the objective assessment as the sole method to establish the thing's just price.156 It is to be observed, in the long run, with scholastic reasoning having gained firm ground among legal scholars, the subjective price standard would be ousted by the objective one based on the thing's current price.
With regard to the possibility to use remedies in contracts other than those provided for in the Corpus iuris civilis, the differences between the remedy for lesion beyond moiety and the remedies for defects in the thing are also noteworthy. The remedies for defects could not be used in contracts other than sales. For the remedy for lesion beyond moiety, however, the contrary was accepted quite early by Azo for at least
155 Baldwin, Medieval theories, p. 20.
156 See 2.2.1.2
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