Page 19 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter One. Subject and methodology
1.1 Introduction
One of the most frequently made transactions throughout the world is that in which someone hands over a thing to another person who in return compensates him with countable units by which the worth of exchangeable goods can be calculated and acquired.1
However, it frequently happens that the thing handed over is defective. For example, the delivered horse suffers from an illness. If the compensator's intentions were to acquire a healthy horse, the result is that he is left with something he never bargained for. Moreover, the horse's illness may have caused him to incur veterinarian expenses, or, even worse, the illness may have infected other animals in his possession. From a given point in history onwards, it was deemed undesirable to leave the solution of such matters to the parties themselves. Consequently, a legal approach developed. As a result, the question arose as to how similarly undesirable situations could be satisfactory solved from a legal point of view.
In western legal systems the transaction just described is governed by the legal concept 'sale', if the thing changed hands with the purpose to put the recipient in full possession and power over it. If the thing is transferred for temporary use only, the transaction is a 'lease'. The units with which the transferor is compensated for the delivery of the thing are termed 'money'. The money given in exchange for the thing's possession is called 'price' or 'rent'. Furthermore, the transferor who alienates the thing in his possession or put it at another person's disposal is a 'seller' or 'lessor' and the person who compensates the seller or lessor for enabling him to keep the thing in his possession or detention a 'buyer' or 'lessee'.
If the seller or lessor delivered a thing with a defect without the buyer or lessee having agreed to receive it in such a condition, the latter may want to change this unwanted outcome into an outcome more to his taste, either by cancelling the sale or by demanding compensation for the thing's defect. He then seeks to 'remedy' the undesired situation in which he is put. It is known that since Ancient Roman law (753 – ca. 200 B.C.) western legal systems have provided for such remedies. Yet, the content and conditions under which these remedies could be brought varied in the course of time. The contents and conditions of such remedies form the subject of the present investigation.
1.1.1 Subject matter of this study
This study mainly focuses on defects in sold objects. As the factual situation underlying a sale closely resembles lease and legal scholars throughout history applied rules governing sales to lease and vice-versa, this study also pays marginal attention to lease of defective things. Where this study refers to defects in things exchanged for money, both contracts
1
Law of Obligations, p. 80.
Grotius, Inleidinge, 3.14.2; note by Brom, Urteilsbegründungen, p. 19; Zimmermann, The new German
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