Page 77 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
techniques of interpretation, which consisted of skilfully analysing the texts of the
Corpus iuris civilis.
A strict adherence of medieval scholars to the text of the Corpus iuris civilis is also found in their treatment of the question whether the aedilician remedy for returning the thing could also be brought in lease (2.2.2). D. 21.1.63 explicitly seems to rule out this possibility. From Accursius onwards, medieval scholars brought no objections to this text, even though it is hard to fathom why a lessee would not be able to demand that he return the defective leased thing and that the lessor pay him back the agreed rent. Medieval scholars justified their position by reasoning that 'in lease one does not intend to transfer property, as one does in sales'.
Concerning the scope of the seller's liability for defects in the thing sold, medieval scholars agreed that the rule of D. 19.1.13(14)pr was the general rule which had to be applied (2.2.3). According to this text about liability for sold rotten beams and contagious cattle, the knowing seller is liable for more than the seller who was not aware of any defect in the object he sold. Digest texts which seem to run counter to this rule are explained away, either as texts dealing with particular things for which an increased liability applies or as dealing with sellers who were in the position to know about the defects. Medieval legal doctrine did not yet take the step that professional sellers form a particular category, the members of which should always be aware of defects in things sold.
Yet, at other points medieval legal scholarship did demonstrate a tendency to come to a less intricate law regarding the seller's liability for defects in things sold. This particularly holds with regard to the seller's liability for encumbrances on immovables (2.2.4). Although the question what a seller of land burdened with servitudes or taxes is liable for closely resembles the issue of the seller's liability for defects in movables, the Corpus iuris civilis contains a large amount of texts with rules which deviate from the seller's liability for defective movables. Whereas in the event of defects in movables, the knowing seller is always liable for more than the seller who was not aware of any defect in the thing he sold (D. 19.1.13(14)pr), some Digest and Codex texts suggest that only the knowing seller can be held liable and then for price reduction only.
Accursius consequently put much effort into bringing these varying liability regimes for a comparable factual problem in line with each other. By means of an extensive interpretation of texts which suggest otherwise, Accursius managed to place both the seller's liability for encumbrances on immovables and for defects in movables under one and the same regime of D. 19.1.13(14)pr. Yet, he accepted one exception:
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