Page 313 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
remedies to lease which he came across in a judgement given in 1654 by referring to the work of the humanist scholar Cujas.
'He who contracted the works of a shepherd has the right to refuse his help because of the sheep141 being ill \[note 1\], and consequently has the right to demand that he \[the shepherd\] brings such sheep which do not involve him in any risk...'.
Mevius in his comments considers the remedy the contractor can bring to be similar to the aedilician remedy for returning the thing.
\[note 1\]: 'As there is in sales, there is also the possiblity to bring the actio redhibitoria in lease, as Cujas proves by means of C. 4.65.33 in his Twelve books of observations, number 38. Likewise, D. 21.1.63 is not opposed to that. It only states that this edict does not pronounce upon lease. Furthermore, he \[Cujas\] scrutinizes its purport and not at all negates that it can be extended in that sense by reason of similitude'.142
Mevius' explanation resembles those of Althusius and Meier. The text of D. 21.1.63 merely states that the aedilician ediles have not decreed anything about lease. Hence, if other legally justifiable grounds are conceivable by which to extend the remedies, they can readily be applied in another context. Apparently, all the objections put on the table by Cujas' contemporaries do not impress Mevius; to him the similarity of lease and sales is decisive, which demonstrates a legal mind that starts with reasoning from the kind of breach that asks for a remedy and not from the remedies available in ius commune. Thus, Althusius, Meier and Mevius share an inclination toward natural law thought, pieces of which they managed to weave into their otherwise traditional treatises.
Also Johann Schilter's (1632-1705) argument for extending the aedilician remedies to lease is exemplary of the new winds blowing in the age of natural law. Similar to Meier, Schilter began his academic career with the study of philosophy rather than law.143 Surely he must have been informed of natural law theory. At least, his refutation of restricting the aedilician remedies to sales is pervaded with a natural lawyer's disregard for ius commune subtleties:
'...when also according to the action introduced by Roman law - though not the redhibitoria - it fell within the judge's discretion that whenever the thing had been returned, the price should be paid back, much more so it pertained to the judge's office to do so when plainly asked for it. This is not refuted by what Carpzov writes in his Decisiones 222.22, sc. that redhibition does not have a place in lease, because the lessee cannot return the thing, since he does not possess it, but merely uses it. One
andererseits leugnet es nicht eine Vorliebe in der Praxis für den Traditionalismus und das einheimische
Recht'.
141 The sheep the shepherd brings.
142 Mevius, Decisiones, vol. 1, p. 2, dec. 380, p. 486: 'Ei qui opilionis operas conduxit, ius quidem est non
recipiendi istius ministerium propter pecus, quod morbidum \[1\], ideo poscendi, ut tale comparet, a quo nihil sibi periculi sit.\[2\] 'Sicut ob hoc in emtione locus est redhbitioni demonstrat Cuiuacius, Observ. 38 et simul nihil obsistere l. sciendum 63, ff. de aedil. edict, quae tantum refert, hoc edicto nihil de eo contineri, et rationem scrutatur, minime vero illuc ex rationis similitudine produci negat'.
143 For biographical data see K. Luig, 'Schilter, Johann, in: NDB, 22 (2005), pp. 774-775. 307