Page 160 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Four. Legal humanism on the remedies for defects in a thing exchanged for money
4.1 Introduction
Legal scholars at the beginning of the 16th century found themselves confronted with unresolved questions concerning latent defects in ius commune law. Medieval scholars had not yet found their way in the Corpus iuris civilis, so notorious for its concise and often contradicting texts, lack of coherence and seemingly redundant provisions. Giphanius (1534-1604), a scholar working in the northern part of today's Germany1, found that the 'writers of glosses' (glossographi), as he called the medieval scholars, had often only made matters worse. Their urge to divide, distinguish and categorise 'engendered a lot of obscurity and intricacies devoid from any legal or reasonable basis.'2
A significant part of 16th century scholars consequently took up the task of reinterpreting the law regarding latent defects. Inspired by renaissance learning, notably scholars from the French town of Bourges, such as Jacques Cujas (1522-1590)3 and Hugues Doneau (1527-1591)4, delved deeply into Justinian's Corpus iuris civilis. In contrast to medieval scholarship, their method included the study of the manuscript tradition by which Roman law had been handed down. Moreover, legal humanists read Greek and researched into Byzantine law and commentaries to the Corpus iuris civilis.
Another strand of humanist scholarship concerned itself with natural law reasoning. Inspired by early modern scholasticism, Johann Oldendorp (ca. 1490-1567)5, law professor in Marburg, started from the Thomist-Aristotelean view that the sales contract is a commutative contract governed by fairness in exchange.6 Oldenburg and like-minded scholars provide the connecting thread between early modern Castilian scholasticism and the rationally argued positions on what is fair in sales, as found in the writings of 17th and 18th century natural law scholars such as Grotius, Pufendorf and Wolff.7
Though most 16th century humanists which feature in this chapter paid lip service to those who radically opposed the way law had been studied and applied in the preceding ages, many of them accepted the legal reality of the day. That legal reality was one in which law was administered in accordance with the age-old and approved
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H. Liermann, 'Giphanius, Hubertus', in: NDB 6 (1964), p. 407.
Giphanius, Theses, p. 5: 'multas obscuritates et spinas peperit, nullo nec iure, nec ratione nixa.'
In Latin: Jacobus Cuiacius. For a recent and thorough study on the man and his work see Prévost, Cujas, passim.
In Latin: Hugo Donellus. For biographical data see L. Pfister, 'Doneau, Hugues', in: Dictionnaire, pp. 256- 258; Eyssel, Doneau, pp. 25seq.
K. Luig, 'Oldendorp, Johann'. in: NDB 19 (1999), pp. 514-515.
Oldendorp, Progymnasmata, p. 246: 'Hunc autem locum elegantem valde illustrat disutatio Arist. lib. Ethic. 5, ubi probat in societate civili non posse fieri permutationem seu commutativem rerum, nisi prius redigantur ad aequalem proportionem... Non posse autem proportionem fieri aequalem ex substantiis rerum, nisi aestimentur aliquo medio comparabili, quod vice sit rerum et possit augeri ac minui, ut est numerus; idem, p. 247: '...emptionem et venditionem ad hoc solum introductas esse, ut per eas commode retineretur communicatio rerum, quae alioquin sine his formulis fuisset turbatura publicam et societatem hominum'.
See chapter 6.
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