Page 311 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
in court practice.130 Yet, he comes to the conclusion that 'the penal actions for the double are absurd in our jurisdiction'.131 Regarding the possibility to sue any seller for the entire sum in the event of a plurality of sellers, Heineccius remains silent.
6.2.2 Extension to lease
Although in the previous periods and currents of legal thinking only Cujas favoured the remedy for defects to lease, natural law theory provides handles to defend the same. Reasoning from breach of fairness in exchange or contractual fairness, early modern Castilian natural law theory focused on the breach which had to be compensated, not on the act that had caused the breach. Thus, both a breach of contractual fairness in sales as in lease provoked a duty for the perpetrator to compensate the damage caused. It would have been in line with expectations when 17th and 18th century natural law scholars see no problem in extending the remedies lying for defects in sales to lease, since the factual circumstances of a breach of contract due to delivery of a defective item in sale and lease are almost the same.
However, for the tracing of such a movement toward a more conceptual contract law, the scholars traditionally associated with 17th and 18th century natural law do not offer much help. Perhaps symptomatic of the increasing irrelevance of ius commune technicalities most natural law scholars central to this chapter do not discuss the matter. Grotius does not in the chapters of his Inleidinge about sales and lease.132 Pufendorf, Wolff or Thomasius also fail to mention the issue in their respective studied works.133 It may be that the question is rather technical for scholars who do not concern themselves with the law at ground level, although Grotius was well-versed in legal practice.
Nevertheless, a tendency to simplify contract law by extensively interpreting the Corpus iuris is already shimmering through in the works of Althusius. Concerning this section's topic, this scholar again provides an example of someone with one leg still in pre- natural law style ius commune and the other already, though somewhat hesitatingly, over the fence on natural law grounds. Rather reluctant in applying the aedilician remedies to all defects, be they movables or immovables, corporeal or incorporeal, Althusius is outspoken regarding the question whether the aedilician remedies can be extended to lease:
'After all, many times the aedilician edict is applied to sales or lease, C. 4.65.34; Cujas, Observationes 12.38, though Ulpian negates that, D. 21.1.63'134
130 Wesener, 'Zur Rechtsquellenlehre', in: Fundamina 20 (2), 2014, p. 1036-1037.
131 Heineccius, Ad aedilitium edictum, 3.1, p. 69: '...actiones vero poenales in duplum foro nostro plane inconcinnae sunt'; similarly, Titius, Iuris privati, 4.20.8, p. 564: '...hodie non obtinet, cum ex veteri
processu formulario fluat'.
132 Grotius, Inleidinghe, 3.15, 3.19.
133 See the references in previous sections.
134 Althusius, Iurisprudentiae, c. 34, p. 111: 'Saepissime enim in emptione venditione, vel in locatione
conductione locus est edilitio edicto, l. penult. C. de locat. \[C. 4.65.34\], Cuiac., obs. lib. 12, cap. 38, quamvis hoc ultimum Ulpianus neget, l. 63, de aed. edict. \[D. 21.1.63\];' Althusius' extension to lease is curiously missed by Klempt, Grundlagen, pp. 27-32.
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