Page 232 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
the price reduction for a latent defect should be based on the judgment of experts.85 Finally, Groenewegen van der Made notes a wholly different solution to the difficult question how the aedilician remedy for price reduction should be put into practice;
completely abolish the remedy:
'In France the judge refuses to grant the remedy for price reduction because of unsound cattle or rotten wood, according to Automne in his Censura Gallica, commenting on this text.'86
Nonetheless, that is a conclusion Groenewegen van der Made himself is unwilling to draw.87 He refers to Van der Zijpe88 who writes that French customary law does allow for an estimation of interest in the wake of a remedy for price reduction by an oath in court. However, Van der Zijpe opines that in Dutch law it was to the judges to decide in a reasonable and just manner how much someone's interest was.89 Hence, the remedy could without objection be applied. Groenewegen van der Made appears to endorse this view.
5.2.1.2.1 Legal practice
Earlier Dutch legal practice is not that informative about how a price reduction because of a latent defect in a thing took shape. Christynen (1553-1631) a compiler of cases brought before the Supreme Court's predecessor, the Great Council of Mechelen, does not go beyond merely stating that there are two possible remedies.
'Here it is doubtful whether there is only one remedy for price reduction or that there are two, since according to civil law the civil action on the sales contract can also acquire here what can be acquired with the praetorian remedy mentioned earlier'.90
Saying so, Christynen refuses to cut the Gordian knot. The same undecidedness is found with Zutphen who echoes Grotius. If someone sells a horse with a latent defect unknown to both buyer and seller:
'...then one sues for how much less the horse would have been worth due to the
Westenberg some use the terminology indicating a subjective approach.
85 Huber, Rechts-geleertheyt, 3.7, no. 8, p. 384. The price of the merchandise is here assessed by its being
of merchantable quality ('koopmans waer'), which indicates an objective standard for the determination
of price.
86 Groenewegen van der Made, Tractatus de legibus abrogatis, to D. 19.1.13pr., p. 153: 'In Gallia ob pecus
morbosum aut tignum vitiosum actionem quanti minoris dari negat Autumn. Cens. Gal. hic'. For Automne
see 4.2.1.2.
87 Groenewegen van der Made, Tractatus de legibus abrogatis, to D. 19.1.13pr., p. 153: 'Quod de moribus
nostris affirmare temerarium. Zijpae. Notit. jur. de Empt. et vend. in vers. qui pecus',
88 For a short biography see Lesaffer, ‘Iudex, magistratus, senator (1633)', pp. 29seq.
89 Van der Zijpe, Notitia iuris Belgici, p. 76: 'Moribus Franciae iuramentum in litem sublatum scribitur, sed
nec hic usurpari admodum vidi, sed iudices non exactoris voto, sed bono et aequo id quod interest
definire'.
90 Christinaeus, Practicae quaestiones, vol. 3, dec. 58, no. 9, p. 468: 'Et hic dubitari solet, an sit tantum una
actio quanto minoris, vel dua, cum etiam iure civile empto consequi possit actione ex empto id quod praedicta praetoria',
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