Page 74 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
other bona fide contracts such as lease.157 Medieval scholars not only allowed for the remedy in sales, but in all bona fide contracts. Some scholars even argued for its application to contracts stricti iuris. Nothing of the kind ever happened with the aedilician remedies; their which scope is more narrowly defined in keeping with D. 21.1.63. The latter text even dissuaded Baldus from accepting such an extension, despite all his equity-based reasoning in his discussion of C. 4.44.2.158
Finally, speaking in terms of legal procedure, the remedy for lesion beyond moiety seems better to digest than the remedies for defects in the thing sold. A transgression of half of the just price suffices to trigger the remedy for lesion beyond moiety, whereas the remedies for latent defects require proof of the defect in a particular thing impeding normal use. It would seem that it is much easier to find out whether a thing's price deviated from the current market price than to prove that a defect existed at the moment the contract was concluded in the first place, and, secondly, that that defect impeded the thing's normal use.
As we shall see in later chapters, the disadvantageous make-up of the remedies for latent defects became subject to change.
157 Azo, Summa Theol., to C. 4.44, no. 5, p. 417: 'Quod dixi in venditione, ad quemlibet contractum bonae fidei exteditur'; Schulze, Die laesio, p. 14; Langer, Laesio enormis, p. 47.
158 See 2.2.2.
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