Page 297 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
Althusius maintains the distinction between corporeal and non-corporeal defects. The aedilician remedy for returning the thing does not apply to the latter kind of defects, unless they hinder the use of the object's corporeal qualities, such as is the case with a slave who is inclined to flee or to err.49
In the light of Althusius' earlier statement it is strange that he keeps this distinction intact. After all, the distinction is rooted in the belief that the sales contract does not entail a duty to deliver free from defects. It was generally shared among Althusius' contemporaries that the aedilician remedies were introduced to bring additional protection which the action on the contract originally did not offer.50 Yet, we observed earlier that Althusius perceived the duty to deliver free from defects as an integral part of the sales contract. Consequently, a breach of this contract's obligation automatically invokes the rights expressed in the aedilician remedies which can be pursued with the action on the contract, irrespective of the object of the sale.51 It would have been more consistent had Althusius regarded the aedilician remedies' particular applicability as superseded. A similarly queer mixture of ius commune-rules and deductive reasoning is also notable in the works of Doneau where it pertained to whether or not extending the aedilician remedy for returning the thing to lease.52
Perhaps Althusius' jumbling of natural law thinking and ius commune-theory is simply part of the schizophrenic situation legal scholars of the time had to work in; they theorised about the law using concepts borrowed from scholastic theology and philosophy, while at the same time facing everyday questions handled by a judiciary that – certainly in the lower strata – had never occupied themselves with the transcendent questions which stood central to the scholarly debate.53 Illustrative of this is the legal situation in the German regions in the 17th and early 18th centuries. Natural law theory flourished in those territories but alongside the usus modernus-current at the same time. Its adherents were well aware of natural law theories but nevertheless did not hesitate to cling to age-old interpretations of the law concerning latent defects. A quick thumping through their most influential works demonstrates a law more accommodated to traditional ius commune- theory about the civil and aedilician remedies' application to corporeal or non-corporeal defects than to the natural law concepts set out at the beginning of this section.54
49 Althusius, Iurisprudentiae, 1.34, p. 164: 'Animi vitia aut corpus inutile reddunt aut nihil impediunt. Inutile reddunt corpus vitium fugae...Nihil impediunt corpus reliqua vitia, iracundia, mendacium, avaritia etc....ideoque non praestantur et cessat in iis redhibitio'; Althusius, Dicaeologica, 1.75.6, p. 258: 'Animi vitium non facit illi locum, d.l. 4 \[D. 21.1.4\], nisi quando id domino corpus reddit inutile et substrahit...'.
50 See 4.2.1.4.
51 Klempt, Grundlagen, p. 13.
52 See 4.2.2.
53 E.g. the appelate court of the provinces of Holland, Zeeland and West-Friesland 's ordinances of 1520
decreed only for the General-Prosecutor to hold a university degree. One might imagine the educational level of his compeers as being rather low, let alone that of the judges in the lower courts. Cf. Le Bailly, Procesgids, p. 15.
54 Meier, Collegium, ad D. 21.1, no. 10, p. 1188: '...constitit causa haec redhibitionis in morbo et vitio corporis, non animi...'; Brunnemann (1608-1672), Commentarius, vol. 1, ad D. 21.1.1.3, no. 8, p. 595: 'Actio aedilitia redhibitoria datur ob vitia...corporis scil. non animi...'; Cf. Lauterbach, Collegium, vol. 2, to D. 21.1, nos. 10, 14 p. 159; Barth von Harmading, Disputatio, lxix; Berger, Oeconomia, 3.8.6, nota 1ff., p.
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