Page 76 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
price paid and the thing's real value. However, some medieval scholars, notably those from the School of Orléans, dismissed the existence of two ways to compute by what amount the seller had to reduce the thing's price. They believed that the only right way to calculate a reduction was based on an objective price assessment.
A similar picture presented itself in the medieval debate about which limitation periods the various remedies for latent defects possessed (2.2.1.3). Accursius, Bartolus and Baldus held that the civil and aedilician remedies possessed different limitations periods. The civil remedies lasted for 30-years, whereas the aedilician remedy for returning the thing lapsed after six months and the aedilician remedy for price reduction after one year. However, again the ultramontani from Orléans, De Revigny and De Belleperche, concluded that there was just one set of limitation periods for both civil and aedilician remedies for defects in the bought thing. The only limitation periods which applied when a buyer brought a remedy for a defect in the object sold was the aedilician. Both scholars in favour and against accepting various limitation periods managed to draw arguments from C. 4.58.2.
In addition to their particular periods of limitation, Justinianic Roman law texts contain more clues to assign the aedilician remedies a unique position vis-à-vis the civil. A Digest text suggests that, in the event of multiple sellers who have joined in a partnership with the purpose to sell slaves (societas venaliciariorum), the aedilician remedies can be brought against any one of them for the entire sum (in solidum) of the performance. Furthermore, the aedilician actio redhibitoria could involve a penalty, if the seller, in contempt of court, refused to pay back the price to the buyer (2.2.1.4). The majority of medieval scholars whose works were consulted in this chapter did not appear to problematise these aedilician traits. Odofredus even seems to drop the requirement of a societas venaliciariorum and to allow a suit in solidum in all cases of multiple sellers, regardless of their being joined in a partnership. On the other hand, Odofredus seemed to ignore the possibility to sue for the double amount, if the seller refuses to return the sum paid for the defective thing, even after a judge had ordered him to do so. De Revigny and De Belleperche did not discuss the matter.
Thus, in the debate about the seeming redundancy of the aedilician remedies for latent defects it has become clear that these remedies were 'saved' by Azo's and Accursius' skilful art of distinguishing on the basis of Roman law texts. However, opposition against this 'Accursian' distinction and a tendency to merge the civil and aedilician remedies into one set already shimmered through in the writings of their contemporaries. Nevertheless, these competing views resulted from very similar
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