Page 26 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
1.2 Methodology
1.2.1 Comparative legal history
Similar to contemporary comparative legal studies, a historical comparative study faces some well-known problems which arise when comparing legal systems. In studies of contemporary law, the diverse origins of the law make that similar factual problems are dealt with along various lines of legal reasoning. One example is how the risk of loss, destruction of or damage to a thing sold which has not been delivered is distributed. French and Dutch jurisdictions have opted for divergent solutions to the same factual problem. In France, property in a movable thing is conveyed as soon as consensus has been reached on its sale for a certain price. Consequently, the buyer, from that moment onwards the owner of the thing, takes the risk of its loss, destruction or damage even if it has not yet been delivered.25 In the Netherlands, however, transfer of property in a thing requires not only title, but also delivery.26 As long as the object is not delivered, the seller remains its owner and is the risk-bearer of loss, destruction of or damage to the thing.27 Yet, both jurisdictions aim to address one and the same underlying factual question. 'Who bears the costs of loss, destruction or damage which occur, if the thing sold has not yet been delivered?'
Comparative legal history can explore legal developments in a similar fashion. It can appraise a changed approach to law and its factual consequences, if it continuously keeps in mind the underlying factual situation which the law studied meant to tackle.
For the subject of this study, the following factual situation must be constantly born in mind.
A agrees to deliver a thing to B. B agrees to give A a certain sum of money in exchange for receiving the thing in his possession. The thing appears to be defective and therefore does not correspond to what A and B had agreed on.
Confronted with these facts, the legal scholars and practitioners central to this study continuously posed the following legal question:
What legal recourse is open to B now that the thing he received turns out to be defective?
This book explores which answers have been formulated to this question throughout the early modern period. The focus lies less on the outcome of the legal debate which evolved around it than on the arguments brought forward with which scholars and practitioners underpinned their particular viewpoints. Medieval and early modern scholars had to come to terms with the imposed limits of their legal environment and the society in
25 Article 1138 Cc: L'obligation de livrer la chose est parfaite par le seul consentement des parties contractantes. Elle rend le créancier propriétaire et met la chose à ses risques dès l'instant où elle a dû être livrée, encore que la tradition n'en ait point été faite, à moins que le débiteur ne soit en demeure de la livrer; auquel cas la chose reste aux risques de ce dernier; Watson, Legal Transplants, p. 82seq.
26 Art. 3:84 Dutch Civil Code. See Van Den Bergh, 'Perfecta emptione', p. 639.
27 Art. 7:10 Dutch Civil Code.
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