Page 281 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
predecessors, Dutch scholars considered a subjective estimation of price problematic (5.2.1.2). Grotius and Vinnius were ambiguous as to what calculation method for the reduction of price they preferred. Voet, Groenewegen van der Made, and Van der Zijpe left the price estimation to the judge, thus favouring an objective one. Bijnkershoek's personal notes demonstrated that the Supreme Court used an objective price estimation based on the common market price of the thing traded. Fellow tradesmen had to give testimony about the merchandise's value in relation to the prices running for it (5.2.1.2.1).
With regard to the limitation periods of the remedies for latent defects, (5.2.1.3), Roman-Dutch legal scholarship introduced its own limitation which differed from those proposed in ius commune-doctrine. Grotius assigned a one-year period to both the remedies for rescission and for reduction of price. This limitation originated in Dutch statutory law and was deemed plausible by Voet and the 18th - century scholar Schorer. It also conformed with the unifying tendencies observed in procedural law. On the other hand, however, next to those scholars who adopted Grotius' view, a majority of Roman- Dutch and Roman-Frisian scholars held on to the Castilian and humanist civil law doctrine which had accepted the short aedilician periods of limitation for all remedies for defects in the thing and abandoned the 30-year civil period. Roman-Dutch legal practice did not provide conclusive data to tell whether that tendency to endow all remedies for latent defects with the aedilician periods of limitation gained the upper hand in Roman-Dutch Courts (5.2.1.3.2).
Roman-Dutch and Roman-Frisian scholars further accentuated the difference between aedilician and civil remedies by pointing at the particular purpose for which the first were allegedly brought to life: the correction of inequality in contracts. Since the aedilician remedies were introduced by reasons of 'mere equity' their outlook differed from that of the civil remedies for defects in the thing sold. As a result, Wissenbach, Huber, and Noodt accepted that the aedilician remedies in the event of multiple sellers allowed for a suit against the seller who had the largest part in the sale for the entire sum. Voet and Noodt also held that the aedilician remedies were penal (5.2.1.4). Thus, despite the procedural changes noted by Groenewegen van der Made, the aedilician penal character was kept alive, paradoxically on the grounds that the penalties served to keep contracts equal. The threat of a penalty would induce sellers to strive for contractual fairness. Where early modern Castilian law more in keeping with natural law theory ignored the aedilician buyer-friendly characteristics in remedies for defects in the sold item, early modern Dutch civil law chose to uphold those against the current of time.
Concerning the other controversial issues surrounding the remedies for defects in the thing, early modern Dutch legal scholar reproduced views which had already been formulated in either medieval ius commune or legal humanism.
With regard to whether or not the aedilician remedies applied to lease, Roman- Dutch and Roman-Frisian scholars argued in keeping with medieval ius commune that lease did not allow for an aedilician remedy for rescission (5.2.2). The gist of their
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