Page 292 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SEVENTEENTH AND EIGHTEENTH CENTURY NATURAL LAW
6.2 Seventeenth and eighteenth century natural law on the law of latent defects
6.2.1 The aedilician remedies: redundant rules?
We have seen that throughout the Middle Ages the relationship between the aedilician actions of Digest title 21 and the civil action on the contract (actio empti) which also contained remedies for latent defects was problematic and hotly debated. We met with various answers to the question whether the differences between the aedilician remedies and those available under the sales contract were significant enough to keep them intact or whether the merging of both sets of rules into one remedy for latent defects was to be preferred.
Early modern Castilian law had abolished the medieval ius commune-view that there were various sets of remedies for defects in the thing sold. Nevertheless, the question whether civil and aedilician remedies existed which possessed different characteristics continued to haunt 16th century humanists and 17th and 18th century Dutch scholarship.23 Yet, the seeds of an abolishment of the intricate ius commune doctrine sown by early modern scholastics were already sprouting some green shoots in the works of the Dutch scholar Grotius, who no longer differentiated between kind of defects to which either one or the other set of remedies applied. In a similar vein, he did not distinguish between civil and aedilician periods of limitation for remedies for latent defects.
6.2.1.1 Scope of the civil and aedilician remedies
Seventeenth and eighteenth century natural law scholars continued the new trail blazed by their Castilian predecessors. They hardly ever mentioned the Roman aedilician or civil remedies when discussing the seller's liability for defects. Instead, they discussed under what circumstances the seller was required to reveal latent defects on the grounds of certain demands which were put on behaviour in conducting business through contracts.
Grotius comes to the conclusion that a latent defect could cause a breach of fairness in exchange and that this triggered a liability to compensate the damages the buyer had incurred because of the defect.
'Then there remains the equality which is related to the object of the contract. This equality means that even if nothing was concealed which ought to have been declared, or more is demanded than can be believed to be owed, there is an inequality, be it without fraud on either side, for instance, when there is a latent defect or when someone erred regarding the price. In that event, things should be compensated by taking from him who took more than his due and by giving that to him who received less, since in contracts it is intended – or it should have been – for both sides that both receive an equal amount.'24
23 See 4.2.1 and 5.2.1.
24 Grotius, IBP, 2.12.12, p. 346: 'Restat aequalitas in eo de quo agitur, in hoc consistens, ut etiamsi nec
celatum quicquam sit quod dictum oportuit, nec plus exactum quam deberi putabatur, in re tamen deprehendatur inaequalitas, quamquam sine culpa partium, puta quod vitium latebat, aut de pretio errabatur, eo quoque sit resarcienda et demendum ei qui plus habet reddendumque minus habenti, quia
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