Page 22 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
until the beginning of the early modern period (ca. 1500) the law concerning defects in sold things as it developed out of Roman law presents a rather jumbled picture. The differences between the civil and aedilician remedies were not levelled out. On the contrary, medieval scholars complicated the buyer's quandary even further by extending the remedy for lesion beyond moiety to buyers, so that under certain circumstances this remedy also became available to someone who had bought a defective thing.12
Nevertheless, a look at modern civil codes demonstrates that these codes are less ambiguous as regards the remedies for defects in sold goods which they offer. To give some examples: the 19th century civil codes discussed in this study no longer distinguish between civil and aedilician remedies, nor do they differentiate between corporeal or non- corporeal defects. Furthermore, the remedy for lesion beyond moiety has virtually disappeared from the European legal landscape with the coming of the first civil codes.13 Hence, somewhere between the dawn of the early modern period and the start of the modern era, the law about defects in sold things must have undergone significant changes. Legal historians acknowledge that the development from the intricate medieval ius commune to the less ambiguous law in today´s civil codes with regard to the law governing defects in the thing sold must have taken place in the early modern era (1500- 1800).14 Yet, research into how this process took place is lacking.
1.1.2 Aims of this study
This study aims to fill this 'missing link' in the European civil law tradition up to the 19th century civil codes by tracing the development of the legal remedies for defects in things exchanged and the remedy for lesion beyond moiety in legal doctrine and practice in the early modern period (1500-1800).15 The investigation is mostly concerned with what legal changes took place. Furthermore, it explores why certain changes occurred.
Knowledge of what developments took place with regard to the legal remedies' content is necessary before one can speculate on why these changes were brought about. Under which circumstances could the various remedies be instituted? How long after the conclusion of the sale could a buyer invoke them? What happened when the remedies for defects in the thing concurred with the remedy for lesion beyond moiety? And so forth. To be able to appreciate what the changes in substantial law amounted to, detailed research questions have been formulated on the basis of what both medieval ius commune scholars as well as early modern scholars and practitioners considered controversial aspects of the
12 See 2.3.
13 See chapter 7.
14 Coing, Privatrecht, vol. I, 452; Zimmermann, Obligations, p. 324.
15 Although English common law of the early modern period had always been strongly influenced by legal
developments across the Channel, it is not sufficiently proven that early modern English authors influenced continental ius commune on its turn. References to English legal scholars in the early modern works studied for this book are rare. Moreover, William Blackstone's (1723-1780) Commentaries on the Laws of England served as a counterweight to the contemporary European movement towards codification. As a result, legal developments in England did not result in an exclusive civil code, the comparison of which among various jurisdictions is one of the aims of this research. For these reasons, developments in early modern England are not taken into account.
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