Page 228 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
This case of Johannis Sapeus v Sictus Feiconis is interesting in many respects. First, the three defects for which horse traders were said to be responsible were laid down in local custom. The traders accordingly argued that those defects mentioned were the only defects for which the buyer had a remedy. Huber explains they were wrong. The defects stated in local law did not present an exhaustive list and were merely examples of defects which the seller could have been aware of, but the buyer not, so that full damages were due. Secondly, whether the type of defect was corporeal has no bearing on the discussion about the aedilitian remedies' being applicable in Johannis Sapeus v Sictus Feiconis.
To conclude, in the 17th century, among Dutch scholars the discussion about the interrelatedness of the edictal and civil remedies was anything but solved.
At a later stage, however, things seem to have changed. Jacobus Voorda (1698- 1768)63, who in 1744 published his lecture notes on all the provincial law of the Dutch Republic, states that the buyer can bring a remedy on the contract for the same defects as those covered by the edict.64 He mentions that in his time some - apparently not all - scholars considered the differences between the civil and aedilician remedies abolished.65
It was only after the 18th century revolutionary storms had ceased to whirl around Europe and a restored sense of order broke through the clouds, that a plain view on the matter could be first found with Johannes van der Linden (1756-1835)66. Treating the aedilician remedies as remedies available under the general heading of sales in his Regtsgeleerd, practicaal en koopmanshandboek (1806), without making any reservations for non-corporeal things, he extends the scope of the aedilician remedies to all defects. Moreover, the difference between knowing and unknowing sellers is no longer material in determining whether the buyer has a remedy. However, the seller's state of knowledge remained of importance in assessing how much of the buyer's loss the seller had to compensate.67
5.2.1.2 Assessment of price reduction
Early modern Castilian law no longer heeded Accursius' distinction between a subjectively
venditionem antecesserit. Nam quod sequitur, ad emptoris periculum pertinet, nisi aliter convenerit, l.3. C. de Aedil. act. Si vero praecesserit causa venditionem, actiones aedilitiae dabuntur, ... idque ita judicatum in curia nostra apud Nautam reperio, in causa Johannis Sapaei contrac Sixtum Feiconis cum soc. Actor equum permutatione adeptus erat a reis in nundinis Belcumanis. Decemque vel 12. diebus post traditionem equus erat mortuus. Dein, cum sectus esset, intestina corupta et exesa ichore flavo et tabisico reperta sunt a longiore tempore collecto, ut inde constaret esse mortuum. Condemnati sunt ad pretium restituendum, non obstante testimonio aliorum mangonum: quasi moribus inter equorum mercatores obtineret, ut ne plura quam tria vitia praestarentur... Quod autem ad venditoris attinet ignorantiam, haec quidem ab eius quod interest plena praestatione eum liberat, l. 13. in pri. de act. empt. Non ab actionibus aedilitiis, l. 1. §. 2. h.t...'.
63 For biographical data see J. van Kuyk, 'Voorda, Jacobus', in: NNBW, vol. 3, pp. 1338-1339.
64 Voorda, Dictata, to D. 21.1, no. 2, p. 774: 'Ob vitia, quae locum faciunt aedilitiis actionibus, agi etiam ex
emto potest, l. 11, §2 et 5, D. de act. emt. \[D. 19.1.11.2, 5\]',
65 Voorda, Dictata, to D. 21.1, p. 774: 'Volunt nonnulli, differentias istas hodie exolevisse',
66 P. van Heijnsbergen, 'Linden, Johannes van der', in: NNBW, vol. 7, pp. 769-770.
67 Van der Linden, Koopmanshandboek, pp. 156-157.
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