Page 32 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
salvation of whose souls was at stake in the court of conscience. Early modern Castilian theologians on their turn provided a treasure-trove of legal insights in 16th and 17th century schools of Northern-European natural law. The influence of the latter is still felt in today's codes of civil law.
The above mentioned sketch might suggest a chronologically smooth succession of currents of legal thoughts, which is illusive, of course. Various approaches to law existed and developed next to each other in time.44 For instance, the method applied by the medieval commentator Bartolus (mos Italicus) continued to be fashionable until deep into the 18th and 19th centuries when natural law thinking had already begun its triumphal procession in the direction of the government sees where the first codification labours were put in motion. Yet, it is hard to deny that certain views gained the upper-hand at particular moments in legal history and that these views carried more weight in the shaping of the law than others which were also present at the same time. The order of research proposed above aims as far as possible to give expression to the alternating dominant approaches to law in terms of bringing change and steering legal developments.
As concerns the sources used: their selection aims at providing a representative image of legal views in the periods and currents under investigation. In selecting doctrinal works and (semi-) practical sources I took the following into account. In the first place, I did not rely too much on overviews of early modern literature by present authorities. Today's legal researchers do not necessarily value all legal topics to the same degree as did their early modern colleagues, so that early modern scholars who did not happen to write on topics in vogue in modern and present times are easily overlooked. Yet, such scholars might none the less have formulated views on the central issues of this study which had far-reaching consequences for the shape which the future law would take. One example of a scholar whose works proved of pre-eminent importance is the Leuven professor Gabriel Mudaeus (1500-1560).45 His rejection of the intricate medieval law system of remedies for latent defects has proved formative far beyond his own age.46 At the same time, some of the usual suspects frequently mentioned in today's textbooks for their supposed formative influence on the law, appeared remarkably absent from the discussion of such practical importance as how to solve a flawed sales. For that reason, the famed humanists Budaeus and Alciatus hardly enter this study. They simply did not make substantial contributions to the topic of this investigation.
The main strategy for tracing less known scholars who might nevertheless have had an important say in the shaping of the law about defects in the thing sold, has been to let early modern treatises and case law speak for themselves. One fortunate asset of the mos Italicus was that most early modern scholars painstakingly cited and quoted their colleagues. For example, for the discussion of how the remedy for lesion beyond moiety in Dutch law was applied, one cannot avoid the name of Johannes van den Sande (1568-
44 On the dangers of framing European legal history see Osler, 'Myth', passim.
45 Dekkers, Humanisme, pp. 97-143.
46 See 4.2.1.
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