Page 303 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
All in all, the findings of this chapter cast doubt on the view that natural law scholars favoured a subjective price as a standard to determine whether a sale was valid.84 This find supports the view that the remedy for price reduction which a buyer of a defective thing could bring in natural law doctrine also came with an objective price assessment. Thomasius and his followers who argued otherwise only represent a minor current in the field of natural law doctrine.
6.2.1.4 Limitation periods
Under influence of medieval statutory law, early modern Castilian civil law abolished the perpetual remedy for defects which medieval ius commune scholars had read in D. 19.1.13pr.85 Contrariwise, a significant number of humanist scholars adhered to the Accursian division of temporal aedilician remedies and perpetual civil ones. Dutch legal doctrine and practice was divided over whether there were more remedies for latent defects in goods sold with their own various periods of limitation. This section illustrates in what way natural law theory induced natural law scholars of the 17th and 18th centuries to reinterpret ius commune-provisions on the limitation of aedilician and civil remedies for latent defects.
At the beginning of this chapter it is explained how the thinking of the scholars studied in this chapter is rooted in early modern scholastic thought. It is obvious then to start with a recapitulation of early modern scholastic theory on limitation. According to the early modern scholastics who theorised about the natural law applicable in the forum internum, personal actions grounded in bad faith do not prescribe at all. Moreover, in the forum internum actions in which good or bad faith do not play a role are not allowed to expire as fast as Roman law-texts have it.86 Yet, natural law scholars of the 17th and 18th centuries who write for worldly jurisdictions have to reckon with the day's legal practice in which the medieval ius commune-views and corresponding short limitation periods make themselves felt. This fact and practical issues such as being able to prove what has happened at a given moment in time, which possibility decreases as time passes by, makes them abandon the ideal of long-lasting legal remedies.
The French scholar Domat explicitly states that 'the rules which determine the time of limitation, are no more than arbitrary, because nature does not fix which precise periods
84 Schulze, Die Laesio, p. 35.
85 See 3.3.1.3.
86 Azpilcueta, Manuale, c. 17, no. 85, fo. 193v: 'Unde nec leges particulares Regnorum vel statuta civitatum,
quibus statuitur, ne post aliquot annorum lapsum, debitum peti posset, debitorem scientem se debere et non solventem in foro conscientiae excusant'; Molina, De iustitia et iure, vol. 2, disp. 353, no. 5, p. 244: 'In foro tamen conscientiae, tenetur venditor, etiam post actionem praescriptam, ad reddendum pretium, quando dolus causam dedit contractui et ad illud minuendum, quando dolus incidit in contractu, quoniam ad haec in conscientiae foro, atque ex natura ipsa rei tenetur, eaque praescribi cum mala fide non possunt, imo, neque cum bona fide possunt tam brevi tempore praescribi...'; Grotius, IBP, 2.4.1: 'Gravis hic difficultas oritur de usucapiendi iure. Namque id ius cum lege civili sit introductum (tempus enim ex suapte natura vim nullam effectricem habet) locum habere non potest... inter duos populos liberos aut reges...'; Thomasius, Notae, 4.12, p. 271: '...inter Principes, qui solo iure naturali utuntur, tempus non est modus finiendae actionis personalis'; according to Wolff, parties are at liberty to agree on a limitation period. Hence, he does not seem to presuppose that personal actions prescribe in natural law. Wolff, Ius naturae, vol. 3, § 1024, p. 709: '... praescriptio naturaliter ex consensu praesumto descendit'.
297