Page 304 - 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
are needed to be able to prescribe'.87 As a result, rules about limitation are subject to change and they differ according to time and place. Even Roman law had not escaped the arbitrariness of the topic, according to Domat.88
Indeed, in accordance with the proverb 'many men many minds', natural law scholars often do not agree in their solutions to accommodate natural law principles concerning limitation to legal practice. Ius commune-theory no longer offers definite answers but neither does natural law theory provide hints on determining the right period of time which a party should be granted to bring his remedy. As this section demonstrates, natural law-theory based on overarching general principles thus paradoxically caused a fragmentation of the law of limitation concerning the remedies for defects in exchanged objects.
What confusion the lost reverence for medieval ius commune and the wish to adapt the law about latent defects to natural law-principles caused can be observed in the work of Althusius. In keeping with his having one leg in traditional ius commune-doctrine and the other in natural law thought, he is ambivalent with regard to which limitation periods apply.89 As the only limitation periods Althusius mentions are the aedilician, the conclusion urges itself that these are the ones which ought to be applied and that the civil action's 30- year period should be treated as abolished. However, Althusius does not provide any explicit arguments for that choice.
A wholly different approach to the matter is described by Grotius. In his Inleidinghe he mentions a one year period of limitation to both the remedy for rescission and price reduction. This seems awkward on first sight but it probably resulted from customary practice.90 The short limitation is also in keeping with Cicero's adage referred to by Grotius that in practice it is not always possible to live up to what perfect rationality and intellect ordain.91 Moreover, from a natural law perspective, there is no good reason to differentiate between limitation periods, since a breach of contractual fairness in whatever contract always results in one and the same duty, sc. to restore the infringement of another's natural right by means of giving what he lacks.92 Whether this duty is carried out within one, five or 30-years seems irrelevant.
Domat states that the default limitation for remedies in Roman law was 30-years. That this period changed in due time, he does not find worth to discuss at length. As explained at the beginning of this section, Domat is of the opinion that every jurisdiction
87 Domat, Les lois, vol. 2, 3.1.4, p. 511: 'celles qui marquent le temps de prescription ne sont que des loix arbitraires. Car la nature ne fixe pas quel temps il faut précisément pour pouvoir prescrire'.
88 Domat, Les lois, vol. 2, 3.1.4, p. 511: 'Ainsi ces regles peuvent être cahngées et elles sont differentes en divers lieux: et cette diversité se voit même dans le Droit Romain, où les prescriptions on été differemment reglées en divers temps'.
89 Althusius, Iurisprudentiae, c. 34, p. 111; idem, Dicaeologica, 1.75, nos. 16-17, p. 259; Klempt, Grundlagen, p. 29-30
90 See 5.2.1.3.
91 Grotius, IBP, 2.12.12, p. 347. See 6.1.
92 Grotius, IBP, 2.12.8: 'In contractibus natura aequalitatem imperat, et ita quidem, ut ex inaequalitate ius
oriatur minus habenti'.
298