Page 31 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
Indeed, in medieval times and subsequent ages these remedies poached on another's territory. Scholars since then grappled with the interconnection of the two. Did the one rule out the other or vice-versa? Which limitation period applied in the event both remedies concurred? Legal scholars had to assign to each remedy its proper place in the law about the sale or lease of defective things in order to present to B a clear overview of his legal possibilities.
1.2.3 Selection of sources and literature
In the following chapters, the five issues spelt out in the previous section are discussed throughout the early modern period. As this study concerns the development of the western European civil law tradition, it focuses on ius commune civil law doctrine as it existed in early modern France, Germany, Spain and the Netherlands. Account of canon and customary law is taken only where there were signs that these influenced the interpretation of civil ius commune based on Justinian's Corpus iuris civilis. The geographical boundaries of this study may seem arbitrary. Yet, the selected regions are sure to cover legal developments which had an impact far beyond their own regions. Spanish 16th century scholasticism was exported to Northern Europe, where German, Dutch and French natural law scholars further determined the course which the law governing defects in a thing exchanged for money would take. As these scholars only rarely refer to Eastern or South-eastern European colleagues, legal works of that provenance are not used in this book. However, seeing that the Kingdom of Prussia and the Austrian Monarchy covered large parts of Middle and Eastern Europe, these regions are not altogether neglected, since the Prussian and Austrian civil codes take up ample space in the eighth chapter of this study.
To gain insight into the development of remedies for defects in sold or leased things this study chronologically follows the major currents of legal thinking known to western legal history. Starting with the age of the medieval glossators and commentators (ch. 2), the book continues with the study of Castilian law as it was heavily influenced by early modern scholasticism (ch. 3). Traces of both medieval and scholastic reasoning emerge in eclectic legal humanism (ch. 4) and Dutch legal scholarship and practice of the 16th and 18th centuries (ch. 5). Natural law as the catalyst for legal reform in the sense of exclusively valid civil codes presents the final stage (ch. 6) before this study ends with a description of the content of those natural law inspired codes themselves and their recent or planned revisions (ch. 7).
Usus modernus scholarship is treated only marginally in the chapter on natural law, as the studies of Klempt and Schulze cover a large part of that current. Contrariwise, a special place is assigned to legal developments in Castile of the 16th century. Not only the civil law of that age figures in this book; theological works of the period have been studied for their doctrine on restitution which the catholic faithful were supposed to live up to. Early modern scholasticism as it developed on the Iberian Peninsula drew heavily from ius commune scholarship in its efforts to narrowly describe the sellers' and buyers' duties, the
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