Page 308 - 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
the buyer.114 On the other hand, Dutch scholars argued on the same ground that the aedilician features precisely safeguarded that fairness in exchange.115 In sum, the debate about whether or not buyer-friendly features were allowed to remain part and parcel of remedies for defects was anything but solved when 17th and 18th century natural law scholars took up the issue.
Most 17th and 18th century natural law scholars accepted the obsoleteness of the aedilician remedies' special features. However, this acceptance had to come a long way. The earliest natural law inspired legal scholars waver between medieval ius commune and natural law doctrine. That Althusius was still clinging to traditional ius commune-approach is illustrated by his acceptance of the rule that contempt of court results in a penalty. A seller who refuses to take back the thing can be condemned by a double amount of what he had to perform.116 On the other hand, Althusius states nowhere that the aedilician remedies could be instituted against individual sellers for more than their share in the sale.
In his Inleidinge Grotius does not mention instances in which an individual seller could be sued for the entire sum of the sale which had been concluded with more sellers.117 The possibility of claiming a penalty for the double in the event the seller had not acted in conformity with court orders has also vanished from his description from the law of latent defects. The latter might be subscribed to the fact that Grotius' natural law view described punishment as the exclusive prerogative of the authorities.118
Things become more explicit in the writings of Pufendorf, Thomasius119, and Pothier. Pufendorf holds that it is against reason that a man inflicts damage to another, whatever the cause may be, if that serves no other purpose than to inflict pain on the side who suffers it.120 By the same token, Thomasius explains that in his day the remedy for returning the thing no longer possesses a penal character, because 'in general, the remedy for returning the thing is in use in our law to the extent that it rests on natural equity'.121 Apparently, the remedy's penal character is not in accordance with natural equity
114 See 3.3.1.4.
115 See 5.2.1.4. The perceived penal character served as a deterrence.
116 Althusius, Dicaeologica, 1.75.13, p. 259: 'Contumax et detrectans in duplum pretii et accessionis
condemnatur ex aedilitio edicto, d.l. 45, redhibitoria, de aedil. edict. \[D. 21.1.45\]'; idem,Iurisprudentiae
romanae, c. 34, p. 163.
117 Grotius, Inleidinge, 3.15.
118 Gotius, IBP, 2.20.14: 'non tutum sit Christiano homini privati sive sui, sive publici boni causa poenam
sumere de improbo quoquam praesertim capitalem, quanquam id iure gentium nonnunquam permitti
diximus...'.
119 Thomasius explicitly refutes the admissability of penal actions for the double. See his 'Dissertatio de usu actionibus poenalis', in: Dissertationum academicarum varii inprimis iuridici argumenti, vol. 1, ch. 3, § 33, p. 794.
120 Pufendorf, Elementorum iurisprudentiae, 1.17, p. 227: 'In pensando damno ita proceditur, ut quod quis per alterius delictum minus habet... , id aut tantundem delinquenti adimatur, et addatur damnum passo; ita ut simpliciter sarciatur ex bonis delinquentis quod alter ipsius culpa minus habet... quanta qualisve sit infligenda, non tam ex ipsa delicti natura, quam ex utilitate inde vel in ipsum peccantem vel in societatem redundante est dijudicandum. Nam rationi repugnat, hominem homini quacunque de causa mali quid imponere, in quo nihil nisi dolorem patientis spectet'.
121 Thomasius, 'Dissertatio de usu actionibus poenalis', ch. 3, § 33, p. 794: 'quatenus aquitate naturali 302