Page 286 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Six. Seventeenth and eighteenth century natural law on the remedies for defects in a thing exchanged for money
6.1 Introduction
In this chapter, the views of natural law scholars from the Netherlands, the German regions and France of the 17th and 18th centuries on the law of latent defects is discussed.1 Natural law thinking as it developed in Northern Europe differed from the scholastically inspired natural law of 16th -century Castile and the Low Countries in various respects. First, as will be explained below, its method based on rationally underpinned axiomata (mos geometricus) was unknown to early modern Castilian scholarship. Secondly, the distinction between the court of conscience (forum internum) and the worldly jurisdiction (forum externum) as carried through in the writings of the early modern scholastics was reformulated by later natural law scholars. The distinction became one between a natural, ideal type of law based on reason and the positive law in force. The latter should incorporate the former wherever possible, though natural law scholars themselves admitted that 'it is not something to wonder about that laws only remedy iniquities in as far as these are manageable, whereas philosophers do so in as far as the iniquities can be grasped by reason and intelligence'.2 Because later natural law scholars tried to incorporate natural law into the positive law as far as it went, the law governing defects in the thing sold underwent significant changes. The aim of this chapter is to illustrate which changes were brought about by natural law thinking.
For the presentation of findings, I follow the same division of sections and subsections as in the preceding chapters. Section 6.2 deals with the remedies for latent defects and its debated points of law. Section 6.3 focusses on the remedy for lesion beyond moiety. The structure of this section differs somewhat from the corresponding sections in the previous chapters. This is mainly due to the fact that the remedy endured severe attacks by 17th - and 18th -century natural law scholars. As the ensuing debate would prove decisive for the future life of the remedy for lesion beyond moiety, it is dealt with at length. In addition, the scholars discussed in this chapter do not go into such details as regards the remedy's particular legal features, so a point by point discussion is left out. After a comparison of the natural law views regarding the remedies for latent defects and that for lesion beyond moiety, both kinds of remedies are compared in section 6.4. The chapter ends with a summary of the findings (6.5). The doctrinal positions will be presented as much as possible in a chronological order, although sometimes for clarity's sake, the chronological sequence may include an element of deviation.
Before proceeding with the substantial law about defects in the thing sold, some words are necessary to mention the general change in perception of law by 17th - and 18th -century natural law scholars.
1 Admittedly, Hugo Grotius and Johannes Althusius are 16th and 17th century scholars. Yet, their works demonstrate the first signs of the direction which later 17th and 18th century natural law scholars would take, so that they merit their place in this chapter.
Grotius, IBP, 2.12.12, p. 347: \[quoting Cicero, De off., 3.17.68\] 'nimirum leges iniqua tollunt quatenus teneri manu possunt, philosophi quatenus ratione et intelligentia'..
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