Page 284 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
defects or for lesion beyond moiety.
Let us again have a look at the factual situation set out at the beginning of this dissertation.
A comparison of B's remedies in early modern Dutch law with those he had at his disposal
in the other periods studied in this book yields the following results.
It appears that early modern Dutch legal doctrine and practice by and large upheld
the complex humanist law governing defects in the thing exchanged. early modern Dutch
law kept the two sets of remedies for defects, aedilician and civil, partly intact. It discarded
the subjective price assessment and the 30-year limitation of the civil remedies for latent
defects. On the other hand, however, some Dutch scholars introduced a remedy with an
exclusive one year limitation for both rescission and reduction of price.
The remedy for lesion beyond moiety was accepted in its fullest scope and
endowed with a 30-year period of limitation. It was not explicitly considered as a subsidiary
to the aedilician and civil remedies for defects, although its long period of limitation
effectively made it so. In the event of non-corporeal defects some scholars excluded the
aedilician remedies. Only fraud gave then rise to liability. That also held in the event of
encumbrances for which only a knowing seller could be sued for price reduction. Also a
variant was added in which the knowing seller of encumbered immovables was liable for
all damages the buyer had suffered in accordance with D. 19.1.13pr. Furthermore, if the
prejudice caused by the encumbrance exceeded more than half the thing's just price, B
could bring the remedy lesion beyond moiety. An overview of the remedies available to B
is in the schedule below. The red cells indicate that some goods are no longer considered
a separate class to which a particular liability regime applies, as had been the case
according to medieval ius commune.
Thus, in early modern Dutch law all preceding currents in legal thinking came together.
This resulted in a situation in which B could, depending on regional preferences, seek for
remedies in keeping with medieval, early modern Castilian, or humanist interpretations of
ius commune law. Yet, the long limitation and the subjective price assessment which both
accompanied the civil remedy for defects in the thing sold had been discarded.
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