Page 229 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
determined assessment of the civil or an objectively fixed assessment of the aedilician remedy for price reduction because of a latent defect.68 A number of 16th century humanists were of the same opinion. Scholars such as Mudaeus, Viglius, Cujas and Doneau cast doubt on the glossator's assertion that the civil and aedilician remedies each had their distinct method of price assessment. All argued that, according to Justinianic Roman law, there was only one and that it was the objective method. Basing themselves on the language of the Corpus iuris civilis, its legal content and the unfairness of using a subjective standard, they found that the object's value estimated by the judge or by experts had to be decisive when calculating the price reduction the seller of a defective thing owed to the buyer. There was no role to play for the buyer's subjective feelings about the item's value.69 It may be that driven by societal changes, in particular the increasing number and complexity of economic transactions, the scholars above mentioned preferred simple and more effective rules to solve legal disputes about a defective thing's purchase. This section investigates what Roman-Dutch scholars thought about the assessment of the defective thing's price. Did Roman-Dutch scholars also accept an objective standard for determining the reduction the seller owed?
Grotius does not express himself very clearly. In his Inleidinge tot de Hollandsche rechts-geleerdheid he expounds both methods to assess the price, without arguing in favour of one or the other:70
'...but if the sale nevertheless most likely would have proceeded, then the buyer may claim repayment of the sum paid amounting to how much he would have paid less for the thing. If the defect be such as to render the thing unfit for its ordinary use, then the buyer can either choose to return the thing and claim his money or to keep the thing and sue for how much less he would have bought the thing or, if he thinks fit, for how much less the thing would have been really worth'.71
Is it the buyer's choice how to assess the item's value? Grotius seems to mean just that, which is an opinion that defies all that has been thought out before. After all, some scholars upheld the Accursian distinction, others clearly opted for an objective approach, but none defended them as elective. Moreover, Grotius' statement that the buyer can choose how to have the object's value assessed does not find any evidence in the legal sources accepted in Grotius time.72 Grotius' text has reminiscences to the medieval
68 See 3.3.1.2.
69 See 4.2.1.2.
70 Mentioned in Hallebeek&Decock, ‘Pre-contractual duties', p. 128; Brom, Urteilsbegründungen, p. 186.
71 Grotius, Inleidinge, 3.15.7, pp. 245–246. : '... maer soo de koop waerschijnelick even-wel voort-gang
zoude hebben gehad, zoo mag den kooper eisschen wedergheving van zulcken deel des koopschats als hij de zaeck minder zoude hebben gekocht. Indien 't gebreck zodanig is dat de zaecke daer door tot haer gewoonelick ghebruick onbequamer is, zoo heeft den kooper de keure of hy de zaeck wil wedergheven, ende sijn koop-geld weder-eisschen, dan of hy wil de zaeck behoudende eisschen wedergeving zulckes deels des koopsgelds, als hy de zaeck minder zoude hebben ghekocht, ofte zoo hy wil, zulckes deels als de zaeck inder daed minder waerdig was:... '.
72 Could it perhaps be that Grotius memory failed him in the dire circumstances of his imprisonment in the Loevestein castle, the possibility of which he himself frankly admits, should not be excluded: 'Mirari non debet claritas vestra, si mihi non ea, quae tibi fuere nota adminicula multum est. Potuisse me praestare
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