Page 33 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

INTRODUCTION
1638)47, since almost all contemporary sources refer to the man's treatise on the subject. The same goes for the Portuguese scholar Arias Piñel (1515-1563)48 Yet, one would hardly find these names in present-day studies.49 Similarly, early modern commentaries to the Digest offer valuable references, such as the Ausführliche Erläuterungen der Pandecten by Christian Friedrich von Glück (1755-1831)50, the man who died in harness, his hand holding the pen from which ages of ius commune-wisdom had poured forth.51
Be that as it may, despite all precautions it is hard to avoid missing important works. The mass of legal literature which the early modern printing presses spawned is gigantic and gaining a comprehensive view of it is difficult. The increasing availability of prints in digital form in this respect presents both a curse and blessing52: everything lies within reach. There is no hiding behind barriers of physical distance or unwilling librarians. By taking early modern sources as point of departure, it is hoped that the risk of missing important sources has been reduced to a minimum.
Besides investigating the doctrinal views on the law governing sales of defective things, this study also takes some tentative efforts to unravel developments in early modern legal practice. Both legal doctrine and legal practice mutually influence each other, so that a study of a legal concept through time from a doctrinal perspective would amount to studying a country's political history without taking account of parliamentary acts. To avoid walking into the trap of reconstructing a law that never made it to Court, each current of legal thought which is investigated in this study is accompanied by examples taken from legal practice. These also serve to illustrate to what extent doctrinal views were heeded by the man in the field.
Ideally, the sources used should be case law of early modern Courts. Yet, unlike printed doctrinal works, not many records of early modern case law have, to my knowledge, become available in digitised form. As time was unfortunately lacking for an in situ investigation of the major early modern western European appellate court's records, recourse was taken to early modern printed collections of case law, which present only a
47 R. Visscher, 'Sande, Johannes van den', in: NNBW, vol. 4, pp. 1199-1200; see Van den Sande's Decisiones, which are discussed in 5.3.
48 For biographical details on Piñel (Pinelus) see García Sánchez, Arias Piñel, p. 39ff.
49 Dutch legal historians are familiar with the Van den Sande and his work. E.g. Lokin, e.a., Het Rooms- Friese recht, passim. Piñel's work and person were recently recovered by García Sanchez in his 2004 study Arias Piñel. Catedrático de Leyes en Coimbra y Salamanca durante el siglo XVI. This early modern
law professor also received much attention in Decock's Theologians and contract law.
50 For biographical details see R. Stintzing, 'Glück, Christian Friedrich von', in: ADB, vol. 9 (1879), pp. 253-
256.
51 R. Stintzing, 'Glück, Christian Friedrich von', in: ADB, vol. 9 (1879), p. 256: 'Noch am letzten Tage
seines Lebens, den 20. Jan. 1831, war er bis Abends 8 Uhr mit der Ausarbeitung des achten Bogens des 35. Bandes seines Commentars beschäftigt. — Dann legte er sich, große Müdigkeit empfindend, zur Ruhe und gegen 10 Uhr war er entschlafen'.
52 E.g. the collection of the Bayerische Staatsbibliothek <www.bsb-muenchen.de>, the Bibliothèque nationale de France <gallica.bnf.fr>, the comprehensive search databases Europeana <www.europeana.eu>, the Internet Archive <archive.org>, and the digital library of the Max-Planck Institute for European Legal History <www.dlib-pr.mpier.mpg.de/> to name just a few digital repositories of early modern prints.
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