Page 312 - 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 reason why a lessee can also bring the aedilician remedies is because of the 'exuberant bona fides of both contracts... and the similarity between them'.135 Though Althusius underpins his statement with a Roman law-text, it is the natural law principle that conclusions should be drawn deductively which leads Althusius to his extending the aedilician remedies to lease.136 For the same reason Althusius chooses to disregard D. 21.1.63 as an exceptional text.
A similar development can also be seen in the writings of Justus Meier (1566-1622). A magister of Philosophy, Meier only at a later age turned to law and became Professor in that discipline in 1612 in Strassbourg. He had visited Spain as well.137 Meier is more explicit than Althusius when he says that equity demands that the remedies, though introduced by the aediles for particular cases in sales, should be extended for use under the lease contract:
'...and yet the purport of the edict should on the ground of equity be extended to other \[contracts\]... And Ulpians supports this too in D. 21.1.63, because he says 'it seems something to wonder about'. After all, to the jurist it would hardly have seemed something to wonder about, if not only reasons of equity, but perhaps also legal practice would have convinced him that there is an extension'.138
Meier chooses to read D. 21.1.63 in keeping with Cujas' interpretation. According to Cujas, Ulpian expresses doubt about the validity of the reasons which in his time were apparently put forward against an extension of the remedies to lease.139 There can be no other reason for Ulpian's being surprised (mirum videbatur) than that Ulpian himself would never subscribe to such a curtailing of the remedy for returning the thing. This reading of the text suits Meier's argument in favour of extension well.
Even scholars who do occupy themselves with more practical questions and are generally assumed to be part of the usus modernus-current sometimes betray being influenced by natural law thought. One of those is the Lubecensian scholar David von Mevius (1607- 1670). Working and writing in the hanseatic port of Lübeck, in what is now Northern Germany, and maintaining ties with his fatherland Sweden, Mevius must have heard of the famous Grotius, who had also worked for the King of Sweden and ended his days in Rostock.140 In one of his Decisiones, Mevius explains an extension of the aedilician
135 Althusius, Dicaeologica, 1.74.11, p. 254: 'Atque has tres obligationes communes esse emptioni venditioni et locationi conductioni, recte asserit Cujacius, libr. 12, observat., cap. 38, et in l. 1, § huius, de iust et iur. Gothofredus d. loco. \[Gothofredus to D. 1.1.1.2\] scilicet ob exuberantem bonam fidem horum contractuum, § 1, inst. de oblig. que ex consens. \[Inst. 3.22.1\] et similitudinem, quae est inter ipsos, § 2, Inst. de locat. \[Inst. 3.24.2\], l .2 D. d.tit. \[D. 1.1.1.2\]'.
136 Klempt, Grundlagen, p. 31.
137 Schulz, 'Meier, Justus', in: ADB, pp. 207-208
138 Meier, Collegium, vol. 1, ad D. 21.1, no. 21, p. 1195: '...et tamen Edicti rationem ex aequitate extendi ad
alia:... Et hoc innuit quoque Ulpian. in d.l. 63 \[D. 21.1.63\], cum ait: mirum videbatur. Mirum enim ICto vix
potuisset videri, si extensionem non et aequitatis ratio et fortasse etiam usus fori suasissent'.
139 See 4.2.2.
140 For biographical data see W. Buchholz, 'Mevius, David von', in: NDB, 17 (1994), pp. 281-283: 'M.
hinterließ ein umfangreiches juristisches Werk, für das ein deutlicher Zwiespalt kennzeichnend ist: Einerseits ist es dem Vernunftdenken der Frühaufklärung und der Neigung zum Naturrecht verpflichtet,
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