Page 23 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
remedies for defects in exchanged things. By constantly juxtaposing medieval and early modern ius commune, changes of substantial law come most clearly to the fore. The research questions enabling such investigation are described more in detail in section 1.2.2.
The question why certain changes occurred concerns the interplay between law and society. Changes in substantial law do not take place in a vacuum. They are usually the result of changed views about how society should be given shape. This book also explores what those reasons were and how they impacted on the law governing defects in things exchanged. They can either be legal arguments, for example, arguments of legal coherence or consistency. It is also possible that legal changes were induced by changed views about what constitutes justice, which could, for example, cause that current interpretations of the law governing the sale of defective things were no longer considered fair. As a corollary, this study produces some insights into how law and developments in society interact.
1.1.3 Why study the law about defects in things exchanged for money?
A first argument in favour of studying the legal developments about defects in exchanged things is that the evolution of western European law on the latter has not yet been properly investigated for the early modern period. As earlier indicated, this study aims to fill a gap in existing knowledge. Another reason for choosing this topic is that it serves well to present a paradigmatic example about how legal developments through time might be investigated. As already observed, sales and lease are frequently concluded contracts. Secondly, that an exchanged thing turns out to be defective is likewise a problem which occurs in all times and places. Thirdly, in Europe, the law pertaining to defects has always been formulated in Roman law terms. Legal scholars and practitioners have with a given naturalness set themselves to the task of formulating the recipient's remedies against a Roman law background through all stages of legal history, be it during the High Middle Ages, the 15th and 16th century Renaissance, the 16th century Castilian Siglo d'Oro, the 17th century Dutch Gouden Eeuw, the 18th century revival of Natural law-based scholarship or the 19th century codification era. During all these periods, legal scholars and practitioners defined the recipient's rights with reference to the aedilician and civil remedies for latent defects or to the remedy for lesion beyond moiety. Hence, a tertium comparationis is always present, which enables a relatively precise comparison of the legal solutions jurists staged over the course of many centuries. Together with the relatively simple factual problem which a defect in a thing exchanged for money presents, the topic is suited to illustrate the evolution of law through time without losing the reader in too technical matters.
Finally, knowledge of how the Roman law-based ius commune of sales and lease weathered the storms of these periods up until today contributes to the jurist's capability of considering today's law in perspective. As Roman law-based ius commune still plays a significant role in the shaping of the newly emerging ius commune in the European arena,
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