Page 280 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
5.5 Summary and concluding remarks
This chapter provided an overview of Roman-Dutch and Roman-Frisian legal doctrine and practice pertaining to remedies for defects in the thing exchanged for money. Insights into Roman-Dutch legal practice were gleaned from Bijnkershoek's Observationes tumultuariae, personal notes made by the author as a judge to the Supreme Court of Holland, Zeeland and West-Friesland. In addition, Roman-Frisian law reports of cases which were brought before the Frisian High Court served to illustrate legal practice in Friesland.
Although, by and large, Dutch scholars reasoned in the mos Italicus tradition when it came to dealing with sales of defective items, some significant changes in their approach to the law governing such sales were found to exist, if compared to medieval ius commune. In the first place, changes in procedural law remoulded the shape the ius commune-remedies for defects in the thing sold would take in Roman-Dutch law (5.1.1). It was observed in Groenewegen van der Made's Tractatis de legibus abrogatis that in his time ius commune's delictual and contractual remedies lost their penal character. Secondly, the plaintiff no longer needed to specify which remedy he brought. Merely stating the facts because of which he had started proceedings sufficed. This is probably the result of developments which had occurred in early modern Castilian legal theory and of changes in the Romano-canonical procedure. As observed in chapter three, early modern scholastics considered the seller's duty for the forum internum to restitute to be form-free. It did not depend on the particular claim, which the buyer had made. A proven breach of fairness in exchange simply evoked a duty to restore the breach by whatever possible means. Roman-Dutch law seemed to have translated this line of reasoning to its worldly jurisdiction (forum externum). Plaintiffs no longer had to state which particular remedy they brought. Be that as it may, the mentioned procedural changes would bear their mark on Dutch civil law about defects in the thing sold.
Nevertheless, in the doctrinal discussion about the law for defects in the object sold it could not be clearly noted that Dutch scholars abandoned the requirement that claims should be specified in accordance with ius commune-categories. Concerning the treatment of the question whether ius commune contained various sets of almost identical remedies for defects in items sold Roman-Dutch and Roman-Frisian scholars partly adopted the majority view of medieval and humanist scholars who had distinguished between aedilician and civil sets of remedies (5.2).
Such was clearly observed in the writings of Dutch scholars about whether or not corporeal and non-corporeal defects had to be treated differently. Regarding that topic, a majority of scholars closely followed medieval and humanist scholars, who had contended that the aedilician remedy for returning the thing did not lie for non-corporeal defects (5.2.1.1). Hence, a plaintiff still had to tailor his claim in accordance with Roman law based ius commune-categories.
Contrariwise, similar to their early modern Castilian and most of their humanist 272