Page 75 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
2.5 Summary and concluding remarks
This chapter explored how medieval legal scholars worked their way through problematic points of law in the Corpus iuris civilis concerning the remedies which a buyer of a defective thing could bring. On the one hand, Justinian's compilation offers remedies for latent defects which were based on the aedilician edict and it provided for an action on the sales contract which also involved rescission or price reduction because of a defective thing. On the other, the Corpus iuris civilis grants a remedy to the party to a contract who had been prejudiced for more than half the object of the contract's just price. As these three possibilities were not sufficiently demarcated from each other, medieval scholars set the task of clarifying how these remedies' related.
A first difficulty tackled by medieval jurists concerns the duplication of the aedilician and civil remedies for latent defects (2.2.1). Why did the Corpus iuris civilis contain two seemingly identical sets of remedies for defects in the thing sold? The medieval legal mind could not envisage that the Roman ratio scripta had not known its proper reasons for accepting these remedies side by side.
Indeed, medieval scholars managed to distil differences between the remedies from the Roman law texts. A first difference pertains to the kind of defects to which these applied (2.2.1.1). The glossators Azo and Accursius and the commentators Bartolus and Baldus held that the aedilician remedy for returning the thing only lay in the event of corporeal defects. Hence, a buyer who saw himself confronted with a non- corporeal defect such as an animal inclined to kick or a slave prone to fleeing had to bring a remedy for price reduction available with the action on the sales contract or for breach of warranty. By formulating this difference in scope, the mentioned scholars succeeded in explaining away the apparent redundancy of the aedilician remedies for latent defects and in bringing ratio in the Roman law scripta.
Though the majority of medieval scholars agreed on the difference in scope between the aedilician and civil remedies for latent defects, views markedly differed with regard to the question whether or not the Corpus iuris civilis also assigned different methods by which to calculate the price reduction which a seller of a defective thing owed the buyer (2.2.1.2). Azo and Accursius read in the Roman law texts that the civil remedy came with a subjective method of assessment, whereas the aedilician remedy involved an objective calculation of the price reduction. As a consequence, a buyer who brought the civil remedy, had to declare under oath in court what he thought was the thing's value. In the event the aedilician remedy had been instituted such an oath was not required. The common market price was taken to calculate the shortfall between the
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