Page 161 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 161

CHAPTER FOUR
mos Italicus-tradition.8 Humanist scholars such as Udalrich Zasius (1461-1536)9, Oldendorp and Gabriel Mudaeus (1500-1560)10 therefore persisted in writing commentaries and consilia in much the same fashion as their predecessors had done and so frequently criticised. Also those considered as the standard-bearers of legal humanism, Cujas and Doneau, prove to be on inspection often less innovative than taken for granted in today's legal textbooks.11 Even Giphanius proves not to be entirely consistent in his dismissal of medieval doctrine, as he also frequently adopts views of gloss writers he allegedly despised.12 For all the humanist critique on medieval scholarship, it will appear in this chapter that the most innovative and lasting contributions by humanists to the law concerning latent defects are firmly rooted in the medieval legal tradition. This outcome does not need to be surprising, if one takes into account the character of humanist legal scholarship. A closer look at the majority of legal humanists reveals that their aim was to better interpret the law of their age by reconstructing its evolution, not to restore classical Roman law, as is often maintained in today's legal literature.13
To be able to fully appreciate the changes humanist legal scholarship brought about, its doctrinal positions will be presented as much as possible in a chronological order. Furthermore, they are constantly placed against the backdrop of medieval legal scholarship. For the presentation of findings, I follow the same division of sections and subsections as in the chapter on medieval and early modern Castilian law. Section 4.2 consequently deals with the remedies for latent defects and its debated points of law. Then there follows section 4.3 which focusses on the remedy for lesion beyond moiety. These two ways to remedy the sale of a defective thing will be compared in section 4.4. The chapter ends with a summary of the findings in section 4.5.
 8 9
Stein, 'Legal Humanism', p. 304.
For biographical details A. von Eisenhart, 'Zasius, Ulrich, in: ADB 44 (1898), pp. 708-715.
10 For biographical details J. Schulz, "Mudäus, Gabriel" in: ADB 22 (1885), pp. 439-440.
11 De Bruijn, 'Accursius', pp. 77seq.; Prévost, Cujas, pp. 11, 138.
12 See 4.2.1.1.
13 The view that Cujas' main purpose lay in reconstructing classical Roman law is convincingly refuted by
Prévost, Cujas, p. 328; De Bruijn, 'Jacques Cujas' (review), passim. 151
























































































   159   160   161   162   163