Page 296 - 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
iniquities can be grasped by reason and intelligence'.43 Natural law scholars of the 17th and 18th centuries acquiesced in a legal reality in which natural law theories only partly worked in practice. More than that, scholars who were active in legal practice and also wrote manuals and compendia for practical purposes even show an inclination toward what was at the time the commonly accepted law in practice, viz. ius commune in a Bartolist fashion applied in more general terms than Roman law strictly allows for.
To what blending of theories this may lead to is demonstrated in the writings of Johannes Althusius (1563-1638), who lived and worked in Emden, situated in what is now the state of North Rhine Westphalia44, close to the Dutch border. His indebtedness to natural law theory has been skilfully acknowledged by Klempt.45
To begin with, Althusius considers the duty to deliver an object free from defects as an integral part of the sales contract, which is an instance of conceptual thinking already seen in the writings of humanists and Dutch scholars.46 Not acquainting the buyer with flaws in the thing sold amounts to delivering a thing that is worth less than pretended, something which apparently stands at odds with Althusius' implicit normative ideas about the sales contract:
'I say that the things must be handed over... whole, incorrupt and free from encumbrances and defects. The recipient must be opportunely warned for latent defects in the thing, which he would otherwise neglect... Likewise he who delivers has to warn for unsuitability and encumbrances.... for the thing's defectiveness because of defects and for diseases which he could and should explicitly mention by name... and because of the concealing of which the thing handed over would have been less worth'.47
In his Iurisprudentiae romanae, Althusius more explicitly demonstrates that he reasons deductively. Reasoning from the similarity of sales and lease, he states that:
'the aedilician edict and eviction have a place in contracts which involve a paid sum, D. 21.1.19 and D. 21.1.63. After all, the aedilician edict is frequently applied to sales and lease... although Ulpian refutes the latter, D. 21.1.63.'48
Yet, despite this approximation to a sales regime based on general principles,
43 Grotius, IBP, 2.12.12, p. 347: 'nimirum leges iniqua tollunt quatenus teneri manu possunt, philosophi quatenus ratione et intelligentia'.
44 More precise in the region know as 'East Frisia'.
45 H. Mitteis, 'Althusius, Johannes', in: NDB, 1 (1953), pp. 224-225; Klempt, Grundlagen, p. 27-28.
46 See 4.2.1.4 (Doneau) and 5.2.1.4 (Vinnius).
47 Althusius, Dicaeologica (first ed. 1618), 1.74.9, pp. 253-254: 'Res, inquam, integra, incorrupta, sana, non
vitiosa ... est tradenda et accipiens de commodo rei latente, quod alias ille neglecturus esset, monendus... Similiter de incommodo et onere ...de defectu vitiis, morbiis et iis quae tradens specialiter exprimere potuit et debuit...et ob quorum reticentiam minoris res tradita valuisset...'; Klempt, Grundlagen, pp. 30-31.
48 Althusius, Iurisprudentiae, 1.34, p. 164: 'Contractibus qui mercede sunt, accedunt edictum aedilitium et evictio, l.19 et l. 63 de aedil. edict. Saepissime enim in emptione venditione, vel in locatione conductione locus est...quamvis hoc ultimum Ulpianus neget, l. 63 de aedil. edict.'. Althusius dismissal of D. 21.1.63 is more profoundly discussed in section 6.2.2 of the present chapter.
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