Page 282 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
argument was that a defect in a leased item caused less damage than a defect in a thing sold. Moreover, the lease contract already provided a suitable remedy in the event the thing leased out did not serve the purpose for which it was leased. Similarly, with regard to the question why D. 19.1.6.4 and D. 19.2.19.1 contain an increased liability for an ignorant seller or lessor of defective barrels, Roman-Dutch and Roman-Frisian scholars presented almost all solutions proposed in medieval ius commune and humanist scholarship (5.2.3/5.2.3.1). Some Dutch scholars defended this increased liability by referring to the fact that the seller of the barrels was a professional (Grotius, Wassenaer, Voet, Wissenbach). Others repeated Doneau's scholastic argument that a leaky barrel is not a barrel, so that the seller had acted in breach of an implicit warranty that the object sold was really a barrel capable of containing liquids (Noodt, Wissenbach). The Roman-Frisian scholar Huber chose the kind of thing sold as point of departure to determine the scope of the seller's liability, just as the medieval commentator Bartolus had done. To barrel-sales simply another rule of liability applied.
The last controversial issue pertaining to the remedies for defects in sold things explored in this chapter concerned the scope of the liability of sellers of immovables which turned out to be encumbered with servitudes or taxes (5.2.4). Roman-Dutch and Roman- Frisian law had no clear-cut answer to what liability regime applied. In addition to the medieval and humanist views, Bronchorst and Grotius introduced a liability for price reduction for all sellers of encumbered land, regardless of their knowledge. Another group of Dutch scholars in keeping with Accursius aimed to approximate the liability for encumbrances on immovables to the regime which determined the scope of the seller's liability in accordance with D. 19.1.13pr. Gudelinus, Groenewegen van der Made and Van der Keessel had no qualms in stretching texts of the Corpus iuris which seemed to indicate otherwise. Also Doneau's view made headway among Dutch scholars. Vinnius, Wissenbach and Voet. Doneau had distinguished encumbered immovables from defective movables. The former despite their burdens still allowed the buyer to benefit from them, while defects in movables effectively rendered them useless. As buyers of encumbered immovables despite the burdens could still draw profits from the immovable, a full liability was not in place there. Voet, however, fine-tuned this theory by upscaling the knowing seller's liability to one for full damages. Doneau had held the seller liable for price reduction only. The Supreme Court leaned towards adopting the approach of Voet (5.2.4.1).
In addition to the remedies for defects in the thing sold, early modern Dutch law accepted the remedy for lesion beyond moiety in the event a defect had resulted in a diminished value by more than half the object's just price. Echoing early modern Castilian scholasticism, Roman-Dutch and Roman-Frisian scholars justified the remedy with the need to safeguard fairness in exchange.
Dutch legal scholars explained the remedy for lesion beyond moiety either in terms of error, or dolus in re ipsa (5.3.1). Not only Dutch legal doctrine, but also Dutch legal
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