Page 247 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
5.2.2 Extension to lease
Medieval legal doctrine recoiled from extending the aedilician remedy for returning the thing to the lease contract. D. 21.1.63 posited the divergent character of the contracts of sale and lease as a hindrance, which lead medieval doctrine to seeking the underlying reason for witholding the remedy from the lessee in the lack of transfer of ownership in lease.159 Although early modern Castilian scholarship did not pay much attention to the matter,160 a majority of humanist scholars, again kept medieval doctrine alive and similarly rejected extension. Cujas, who had obstinately argued in favour of extending the aedilician remedy for returning the thing to lease, appeared a voice crying in the wilderness. In this section it will be investigated how Roman-Dutch and Roman-Frisian scholars dealt with the possibility to apply the aedilician remedies to lease. Had Cujas' inventiveness any influence on the thinking of subsequent scholars? Or did Dutch scholars stick to the age- old communis opinio like Doneau had done?
Vinnius is equally sparing with his words on the matter as his example Doneau had been. Reiterating medieval doctrine that lease does not transfer ownership and thus renders a returning of the leased object impossible, Vinnius finishes off the issue in two sentences. Moreover, with his flat denial of the possibility to transfer quasi ownership (dominium utile), Vinnius seems to rule out Dumoulin's intermediate position too, who had defended that there was room for the remedy of returning the thing in a long-term lease. 161 Vinnius backs his argument with references to Connan, again furnishing proof that Dutch scholars frequently looked across their southern border for legal inspiration.162
Voet ties in with Doneau and Vinnius. The aedilician remedies have no place in lease:
'...because in lease one does not litigate about the property of the thing to be transferred in the same manner as in sales and barter (which is similar to sales, D. 21.1.19.5)'.163
So far nothing new. But then Voet sets out an argument which does bring something original.
'...and the prejudice suffered due to a defect in the thing can not possibly be that much as regards the rent for its use, as it can be in the price of a thing in a sales contract.
ignarissimis'.
159 See 2.2.2.
160 See 3.3.2.
161 See 4.2.2.
162 Vinnius, Jurisprudentiae contractae, 2.15, p. 251:'Unum maxime dissimile, quod res vendita tradatur
emptori, ut perpetuo apud eum sit, locata ad tempus tantum. Neque enim solet locatio dominium mutare, l. Non solet 39. eod. \[D. 19.2.39\]'; idem, p. 251: \[note y\] Tamen vulgo existimant, locationem ad tempus non modicum factam transferre ius aliquod in rem sive utile dominium, quod verum non esse ostendit Connan, 7, comm. 12. per. L. 2, C. de praes. 30 ann... \[Connanus, Commentarii, vol. 7, to C. 7.39.2\]'.
163 Voet, Commentarius, vol. 3, to D. 21.1, no. 11, p. 746: '... quia non ita in locationibus de transferenda rei proprietate agitur atque quidem in venditionibus et (quae venditioni hic similes, l. Sciendum tamen 19, § deinde, 5, ff. h.t.) permutationibus... '.
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