Page 336 - 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
6.5 Summary and concluding remarks
This chapter largely acted as a sequel to the chapter on early modern Castilian legal scholarship. Many changes in the perception of how defects in things sold should be remedied which had occurred in 16th century Castile were adopted by the 17th and 18th century natural law scholars discussed in this chapter.
Yet, this did not mean a wholesale adoption of Castilian doctrine (6.1.1). First of all, in 17th century natural law doctrine deductive reasoning reached a climax. Scholars in the social sciences reasoned more Geometrico. The conclusions which resulted from such reasoning were more cogent than those formulated in early modern scholasticism. Secondly, a major part of the scholars in this chapter no longer took the differences between the forum internum and externum into consideration. They used the natural law theories originally developed for the forum internum as a model for their day's positive law. According to Grotius, no longer divine law, but man's desire to form a society (appetitus societatis) evoked legal principles without which a peaceful society would never be realised. These principles, which to a large degree resembled the early modern scholastic views on the forum internum, should as far as possible be applied in worldly jurisdiction.
The immediate workings of natural law upon worldly jurisdiction were particularly felt in the law of contracts, because Grotius perceived contracting parties as forming a 'miniature' society. Contracts should therefore answer to the demand of fairness in exchange, so that no party would benefit at the other's expense and a peaceful society would not be jeopardised. Grotius' view was picked up by later natural law scholars. By means of deductive argument, they concluded that both the ius commune-remedies for defects in the thing sold and the remedy for lesion beyond moiety safeguarded the proportionality of performances. In a remarkable twist of history they furthermore believed that these same natural law principles had also been the incentive for the Romans to bring the mentioned remedies into existence.
A result of deductive natural law reasoning was that the ius commune-remedies for defects in the thing sold underwent significant changes (6.2). In particular, medieval ius commune- subtleties concerning the two sets of remedies which were, according to medieval scholars, transmitted in the Corpus iuris civilis were largely ignored (6.2.1). Grotius reasoned that a breach of fairness in exchange could be caused by either a defect or a deviation of price. Whether there were different kinds of defects did not seem to occupy his mind, as it neither raised the interest of Pufendorf and Wolff.
Admittedly, according to the French natural law scholar Pothier remedies for defects lay only for particular 'redhibitorian' defects. Practical demands induced Pothier to limit the workings of the natural law principle of fairness in exchange in legal practice. The presence of problematic Digest texts which presumably proved a limited scope of the various remedies for defects did not play a part in his argument (6.2.1.1). In his refusal to grant remedies for all defects, Pothier demonstrated the legitimacy of applying natural law to practice as far as it went, but no further. As such, he acted in keeping with the much
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