Page 24 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
lawmakers and legal practitioners working in a European context are well-advised to take notice of the various Member State's legal inheritance in order to prevent wasting time and resources on misconceived or even unnecessary projects. For example, the implementation of Directive 1999/44/EC on Consumer sales caused significant changes in the EU Member States' sales law, which cannot without reservations be said to have been successful. Some of the problems faced by buyers under the revised codes today might have been forestalled had the drafters of, for instance, the Dutch Civil code of 1992 or of the 2002 Schuldrechtmodernisierung of the German Bürgerliche Gesetzbuch demonstrated more historical awareness.16 In this sense, research into the legal history of the law about defects in a sold thing has direct usefulness, though I have to confess not to be part of those who believe that lack of usefulness deprives something of its right to exist.
1.1.4 Current state of research
Concerning legal doctrine, thorough research has already been done on this book's subject for medieval ius commune and the codification era.17 However, the period from roughly 1500 to 1800 still lacks proper investigation. The most thorough exploration of the subject is a monograph by Klempt.18 Though it meticulously discusses early modern legal literature on the remedies for defects in a thing, it does so with the aim of tracing the natural law roots of the seller's duty to safeguard from defects in a thing sold.19 This safeguarding duty is part of the broader concept of Gewährleistung which contains rules to which a deliverer of a thing has to answer in addition to the general rules governing the relations between creditors and debtors (Schuldrecht). In keeping with this, of course legitimate, angle from which to address the matter, Klempt discusses a relatively small number of early modern scholars and only in so far as their writings relate to the shaping of contemporary German law. It can therefore be questioned whether Klempt's results are representative of the era's legal views on how sales of a defective thing could be remedied. The fact that Klempt does not address early modern Castilian legal scholarship and moral theology, which, as it will presently be demonstrated, played a major role in the shaping of the law pertaining to defects in sales in the subsequent ages, leaves an important gap to be filled by further research. Moreover, Klempt deals with legal doctrine and statutes but ignores legal practice.
Essentially the same drawbacks attach to the study of Schulze and Becker as far as these concern the remedy for lesion beyond moiety.20 Both discuss early modern legal
16 See chapter 8.
17 Baldwin, Medieval theories, passim; Dilcher, Leistungsstörungen, pp. 214seq.; Hallebeek, 'The Ignorant
Seller's Liability', passim; idem, 'C. 4.58.2', passim.
18 Klempt, Grundlagen der Sachmängelhaftung, passim. Others are: Zimmerman, The Law of Obligations,
pp. 322-327; Honoré, 'The History of the Aedilitian Action', passim, and Verhoeven, 'Het gelijk der
curulische aedielen', pp. 28-30.
19 Klempt, Grundlagen, p. 9: 'Im Vordergrund steht die Frage, auf welchen Grundlagen nach der in
Deutschland verbreiteten vernunftrechtlichen Lehre... 'das Gewährleistungsrecht' beruhte und welche Bedeutung die hier erarbeiteten Ergebnisse für die Rechtswissenschaft der Zeit im deutschen Bereich hatte'.
20 Schulze, Die Laesio; Becker, Die Lehre.
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