Page 218 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Five. Early modern Dutch law on the remedies for defects in a thing exchanged for money
5.1 Introduction
Early modern Castilian law and, to a lesser extent, legal humanism, provided the building- blocks for a thorough change of perception about how, from a legal point of view, a defect in a thing exchanged for money should be addressed. Under the influence of early modern scholasticism, Castilian civil law, notably legal practice, no longer reasoned from the defect an object suffered from but rather emphasised the thing's reduced worth as a result of the defect. If a bought item proved to be worth significantly less than its common market price, a breach of contractual equality occurred. This imbalance had to be restored, no matter what had caused it. As the ius commune remedy for lesion beyond moiety could be easily adapted to this requirement of fairness in exchange, it became the preferred one to solve instances of flawed sales. The fact that an ignorant seller or lessor had sold a defective thing was one example of contractual inequality which Castilian early modern scholastics and civil law scholars and practitioners tackled with the remedy for lesion beyond moiety.
The deductive line of reasoning of Castilian scholars was partly continued by legal humanists, in particular by Doneau, who explained the Roman-law-based ius commune systematically. However, at the same time, the medieval inductive mos Italicus approach lived on in humanist legal scholarship and was exercised with enthusiasm by scholars such as Wesenbeck and Cujas. Both continued to interpret the remedies for defects by means of inductive arguments based on what they found in the closed body of Justinianic legal texts. In this respect, they resembled their medieval predecessors. However, the humanists added an awareness of the original genesis of the provisions in the Corpus iuris civilis. Moreover, they were equipped with deeper knowledge of Latin and Greek. Ironically though, despite the fact that they had more sophisticated tools at their disposal for interpreting the law, legal humanists, by and large, produced as intricate a picture of the law concerning defects in the thing sold as their medieval predecessors had done, which many a humanist had not been unwilling to debase in strong terms.
The present chapter explores how Castilian and humanist influences continued to work in the development of early modern law pertaining to defects in the thing exchanged in the north-western part of Europe. Legal scholars and practitioners of the region of what is presently the Kingdom of the Netherlands blended medieval ius commune with local custom. Consequently, in the 16th - 18th centuries, in the various Dutch provinces particular legal systems developed. The two most known and studied variants are those which were in use in Holland (the present day provinces of North and South Holland) and went under the name of Roman-Dutch law, and the one which was used in the province of Friesland, termed Roman-Frisian law.1
With regard to Roman-Frisian law it must be noted that the Frisian approach to Roman law in its ius commune cloak differed by and large how Roman law was applied in other parts of the Dutch Provinces. In Holland, Roman law-based ius commune was a
1
Van den Bergh, Elegante Schule, passim.
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