Page 216 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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LEGAL HUMANISM
One topic discussed in this chapter demonstrated an approximation of the remedies for
latent defect and the remedy for lesion beyond moiety. It became well-established that the
price reduction the buyer could claim because of a defect had to be calculated by the
same objective standards of the thing's just price.
Returning to the factual situation set out at the beginning of this book some notable changes have occurred with regard to the legal possibilities of B, the buyer of a defective thing, to remedy that situation. In the present chapter it was observed that legal humanists again harked back to medieval ius commune-doctrine
limelight the aedilician and civil remedies. These were considered as two distinct sets with
the seller had acted fraudulently.
and put an end to the predominance
of the remedy for lesion beyond moiety as a means to solve litigation revolving around
exchange of defective goods. A significant number of scholars brought back into the
particular requirements, e.g. concerning limitation, which B had to ensure to be in place.
Furthermore, legal humanists distinguished between corporeal and non-corporeal defects
in the same fashion as medieval scholars had done. For the latter, a remedy only lay when
However, legal humanism made some major shifts away from medieval legal
doctrine with which they added up to the complexity of B's legal position. First, regarding
the remedy for lesion beyond moiety, a tendency emerged to exclude buyers from its use.
Secondly, in the event of sales of encumbered immovables, a major current in legal
humanism limited remedies for encumbrances on immovables to sales in which sellers
were aware of the burdens. B could then sue for no more than a reduction of price. If he
had been prejudiced for more than half the things just price, he could also institute the
remedy for lesion beyond moiety. An overview of B's legal possibilities is listed in the
schedule below.
In sum, for all their fulminations aimed at medieval legal scholarship, it were the humanists themselves who attributed to a growing complexity of the law governing defects in the thing sold, contrary to the simplifying natural law tendencies present in early modern Castilian law. The next chapter explores, among other things, to what extent later Northern European scholars dealt with this humanist legacy.
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