Page 276 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
buyer and seller. He accuses Cujas, who restricted the remedy to the seller only, of 'vain chattering away about the buyer's shrewdness and the seller's need of household property'.311 According to Tulden, the seller can be as cunning or even more cunning in selling than the buyer in buying, so that there is no reason to withhold the remedy from duped buyers.312 Vinnius claims that such is accepted in legal practice.313
Some discord is found when it comes to the question whether or not the remedy should also be granted to parties to contracts concerning movables. Tulden thinks it should not.314 Of other Roman-Dutch scholars, only Van Eck takes the same view in his Principia of 1689, although he somewhat hesitatingly seems to retract this position in his Theses of 1694.315
Noodt and Voet accept the remedy's application in sale for both movables and immovables. According to the latter, it would have been absurd not to grant the remedy to buyers or sellers of movables which sometimes even exceed immovables in value.316 Apparently, Cujas' argument that the remedy should be restricted to sellers of immovable property in order to safeguard persons from alienating their patrimony has not reached Voet or has not left marks impression. In any case, Voet does not mention it.
Finally, Schorer in his notes to Grotius' Inleidinge provides an overview of the positions hitherto taken. He summarizes that, according to the legal doctrine of his time, the remedy is to be extended to buyers, to movables of considerable worth and to lease.317
Roman-Frisian scholars by and large follow the full extension of the remedy as it emerged in late medieval ius commune. Wissenbach applies the remedy to both sales of movables and immovables and to both buyer and seller. The latter he too grounds in the assertion that the remedy corrects a prejudice irrespective of the person who suffers it.318 Wissenbach does not fail to mention that sellers in their lust for profit are as prone as buyers to deceiving the other party beyond measure.319 He also extends the remedy to
311 Tulden, Commentarius, to C. 4.44, no. 3, p. 229: 'ne aequalitatem, quam lex inter emptorem venditoremque stabiliri cupit, subvertamus, si plus huic, quam illi eam favere dixerimus'; Van Eck also explicitly dismisses Cujas' view. See Van Eck, Theses, to D. 18, th. 313, p. 41: 'licet dissentiat Cujacius'.
312 Tulden, Commentarius, to C. 4.44, no. 3, p. 229: 'Adeo frustra est Cujas in emptore calliditatem causisicans; in venditore necessitatem pluremque rei familiaris excusans. Constat enim ex adverso, in vendente fere callidius avidiusque esse lucri votum'.
313 Vinnius, Quaestiones, 1.57, p. 256: 'Neque enim personae beneficium est, sed causae, hoc est, non tribuitur personae venditoris, sed laesioni, quia laesus, non quia venditor... estque haec communis usuque forensi recepta sententia'.
314 Tulden, Commentarius, to C. 4.44, no. 1, p. 229.
315 Van Eck, Principia, vol. 1, to D. 18.5, no. 23, p. 463: 'Habet locum in rebus immobilibius... non mobilibus,
nisi immobilibus junctae et nexae sint'; Van Eck, Theses, to D. 18, th. 316, p. 42: 'etiam locum habere
videtur in venditione rei mobilis'.
316 Noodt, Opera omnia, vol. 2, to D. 18.5, p. 411 \[below left column\]; Voet, Commentarius, vol. 3, to D. 18.5,
no. 12, p. 465.
317 Schorer's notes to Grotius' Inleidinge, 3.52.1, pp. 770-772.
318 Wissenbach, In libros quattor, to. C. 4.44.2, p. 765: 'ne prsonae \[sic\] hoc beneficium cohaeret, sed rei,
quippe cui enormis laesio praebet locum'.
319 Wissenbach, In libros quattor, to. C. 4.44.2, p. 766: '... emptorem lucri studio et avaritae causa fere
accedere'.
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