Page 173 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 173

CHAPTER FOUR
About the same time as Dumoulin and Mudaeus wrote their treatises on contracts, the Frisian scholar Viglius ab Aytta (1507-1577) worked as assessor to the Reichskammergericht (Imperial Chamber Court of Justice of the Holy Roman Empire), which at the time was seated in the imperial town of Speyer, near Mannheim in the Rhineland-Palatinate (Rheinland-Pfalz). Inspired by the changed intellectual winds blowing in the north of Netherlands, France, Italy and the Habsburg Netherlands, Viglius of Aytta represents the new generation of jurists in full attire. A student of Alciatus61 and pen-friend of Erasmus, he was well acquainted with the new scholarly currents which tended to reshape academic thought.62
Since the Imperial Court of Justice was a token of the Habsburg Emperor's63 claim of being the legitimate heir of the Roman Emperors, the Empire's subsidiary Roman law in its medieval ius commune clothing was eagerly applied by the Court whenever local law did not seem to provide rules for solving the issue at hand. However, in keeping with early modern continental practice, the Court's judges did not explain their judgements. Luckily enough, the industrious Viglius took personal notes from the cases to which he assisted as a legal expert charged with the task of furnishing the judges with legal advice.64
One of the cases Viglius noted concerns the question whether there were more ways to assess a defective thing's value when its seller had been sued with the remedy for price reduction. The defendant in this 1535 case, Ruth, had bought some acres of land from the plaintiff who had kept silent about a part of the land being liable for tithes. Having heard about the tithes' existence, Ruth refused to pay a remaining sum of the agreed price. In his eyes, the value of the plot of land was less than he had agreed to pay for it. He saw, therefore, no reason to fulfil the remaining part of his obligation. The sellers thereupon started proceedings for payment. The court of first instance in Spier granted Ruth a reduction, but not high enough to Ruth's liking. He consequently appealed to the Reichskammergericht and brought the remedy on the sales contract for full damages and, as a subsidiary, the remedy for reduction of price.
Viglius in his personal notes explores how the Court should decide. After dismissing Ruth's claim to full damages because of lack of bad faith on the sellers' side, he comes to discuss the remedy for price reduction.65 One of the questions that has to be answered is how the land's lesser value should be determined. Should it be based on Ruth's personal feelings towards the plot or should a more objective approach be taken?
Viglius argues that the price reduction should exclusively be assessed by objective
61 Andreas Alciatus (1492-1550) was an Italian jurist who lectured at Bourges. He is seen as one of the main instigators of a humanist approach to law. Kelly. Foundations, p. 87ff.
62 For biographies of Viglius see: Sprenger, Viglius von Aytta, pp. 25-27; Pikkemaat, Viglius van Aytta, pp. 4–11; Postma, Viglius van Aytta, pp. 13seq.
63 Charles V, who reigned from 1519 to 1556 (crowned 1530).
64 Sprenger, 'De actio quanti minoris', p. 129.
65 Sprenger, 'De actio quanti minoris', pp. 142-143, fo. 57r, lines 1-3, 22-23: 'In summa ego credo quod non
habeat isto casu locum actio ad interesse, nam ego presumo quod ignoraverint ipise venditores fundum decimas debere... \[22\] quibus non tenebatur, non tenetur tamen, inquit, ad totale interesse, sed quanto minoris empturus erat'.
 163






















































































   171   172   173   174   175