Page 27 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
which they lived. It is precisely such struggles which this study aims to unearth. To enable a more precise study of how answers concerning B's position emerged, a selection was made of five controversial issues involving the legal action B could invoke. The following section discusses what these issues are and why these are selected to form the main guidance throughout this book.
1.2.2 Research topics28
The study of proposed legal solutions through time for a given problem is made considerably easier when one is aware of the underlying controversies which argued for or against adopting a particular solution. Controversy induces scholars to provide arguments for their views. Hence, to be able to explore what moved early modern jurists to grant or deny B certain legal possibilities it has first to be explored which issues sparked debate throughout the period under investigation. Only after such recurring problems have been located can research which spans the entire early modern period up until the dawn of the first national codes of the mid and late 18th century properly be carried out.
To determine which issues surrounding B's legal position have continuously been considered controversial, I let myself first be guided by what medieval scholars present as the most debated points of the law surrounding the remedies for defective things. Justinianic Roman law was far from clear on what B could legally do in the event he had received a defective thing. As a result, controversies arose in medieval legal scholarship about the correct interpretation of the Corpus iuris civilis' provisions. Next, a superficial reading of sources from later periods provided hints as to which of these medieval controversies continued to be regarded as problematic issues in early modern legal doctrine and practice. Despite the many hundreds of years separating the school of the glossators from the drafters of the first civil codes, it proved that many points central to the medieval scholarly debate concerning the law of defects in things over the ages had hardly yielded their prominent position in the legal debate.
Below follow five of such legal controversies which relate to solving the above mentioned legal question and which resurface in almost all periods dealt with in this study. These topics form the connecting thread in and between all chapters of this book. Whether the chapter is about legal humanism, early modern Castilian legal scholarship or the school of 17th century natural law, every one of them is structured around the issues described below. Such an approach facilitates locating shifts in legal thinking about the law concerning sold and leased defective things at the various stages throughout Roman law- based ius commune.
(1) First of all, Justinianic Roman law knows various competing remedies for a buyer of a
28 For the setting of the boundaries of this study I am highly indebted to my supervisors prof. mr. J. Hallebeek and prof. dr. A. J. B. Sirks who wrote an application for the funding of this book's underlying Ph.D. to the Dutch Organisation for Scientific Research (NWO). Much of the present section relies on this unpublished preparatory paper. See further Hallebeek's, 'The Ignorant Seller's Liability', Dilcher's Leistungsstörungen, and Klempt's Grundlagen, pp. 13-18.
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