Page 337 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
quoted adage of Cicero that 'it is not something to wonder about that laws only remedy iniquities in as far as these are manageable, whereas philosophers do so in as far as the iniquities can be grasped by reason and intelligence'.
A result of these divergent perspectives was that civil law had to put up with divergent manifestations of natural law in the positive law. Althusius already demonstrated that maintaining the ius commune-distinction between corporeal and non-corporeal defects was not necessarily in conflict with a natural law approach to law (6.2.1.2).
Agreement was reached with regard to the question how the assessment of price reduction should take place. The majority of 17th and 18th century natural law scholars continued on the path set out by Castilian legal theory that it should be based on an objective assessment of the item's value (6.2.1.3). However, Thomasius and few like- minded scholars posed a notable exception here. Contrary to the medieval ius commune tendency to discard the remedy for price reduction in which the buyer himself under oath declared what he thought the bought item was really worth, Thomasius held that 'the price of things in agreements depends only on the consensus of the agreeing or contracting parties, not on the views of a third party'. Though representing only a minor current in 17th and 18th natural law thought, Thomasius' view would prove highly influential to the drafters of the various national civil codes which began to emerge around 1800.
The natural law scholars central to this chapter furthermore believed that natural law did not allow personal actions to expire as fast as Roman law-texts have it. Yet again, practical demands induced them to impose time limits for suing for defects in the sold thing (6.2.1.4). Nevertheless, scholars such as Grotius, Routier, and Pothier heeded the deductive character of natural law reasoning in that they no longer differentiated between the remedies for rescission and price reduction. To both remedies they applied one and the same period of limitation.
The last particularities of the aedilician remedy which ius commune-scholars often cited to justify the two sets of remedies for defects in the item sold in the Corpus iuris civilis are plainly dismissed in 17th and 18th century natural law. Pufendorf, Thomasius, and Pothier rejected the buyer-friendly features of the aedilician remedies (6.2.1.5). They held that it was contrary to natural law principles that a creditor gained more than the damages he had actually incurred because of the defect. By the same reason of natural equity, Pothier contended that sellers have to explicitly agree on a liability for more than their share in the sale.
Scholars who worked in the usus modernus-fashion, however, did not prove altogether susceptible to natural law arguments. A majority upheld the ius commune- division in remedies for corporeal and non-corporeal defects. Regarding the remedies' limitation, they continued to reason along traditional ius commune-lines in Bartolist fashion and applied a six-month and one-year limitation. Moreover, they held on to the buyer- friendly characteristics of the aedilician remedies for defects in the thing sold. The result of this was a growing dichotomy of bookish natural law scholarship and the law as it was
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