Page 79 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
reduction and a limited reach beyond the sales contract. Buyers would thing twice before opting for an obscure remedy based on defects, if also the remedy for lesion beyond moiety was available. Yet, the writings of medieval legal scholars do not provide evidence for a preference for the remedy for lesion beyond moiety over the remedies for defects in the thing. Such a development would appear later in European legal history, as shall be demonstrated in the next chapter.
At the beginning of this volume a factual situation was set out which serves as a means of comparison.159 What legal recourse is open to B now that the thing he received turns out to be defective? For medieval ius commune doctrine we observed that B had many, though intricate, legal options at his disposal.
If his prejudice because of the defect amounted to more than half the thing's just
price,
he could bring within six months or one year a remedy for latent defects for
rescission or price reduction based on the thing's objective value, if the defect was
corporeal.
In the event of non-corporeal defects B could only demand a price reduction. A
remedy for rescission only lay, if A had acted with fraud, which remedy lasted for 30
years.
B could also institute within 30 years the remedy for lesion beyond moiety with
which again rescission or reduction of price could be realised. Yet, this remedy needed
proof of a disproportionate price paid.
For encumbrances on immovables, B could, according to the medieval majority
view, opt for a remedy for rescission or a reduction of price, or for the remedy for lesion
beyond moiety. Both remedies shared the same features as the contractual remedy for
defective movables. Hence, they lasted for 30 years and determined the scope of the
seller's liability by means of his good or bad faith.
An overview of the remedies available to B is
159 See 1.2.1.
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in the schedule below.