Page 338 - 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
interpreted by scholars more versed in the day's legal practice. This dichotomy is explicitly identified in the works of Heinrich von Cocceji, who accused Grotius of 'mixing up the rules for the interpretation of natural law with those for the interpretation of civil law'.
The spirit of natural law could also be seen at work with regard to the question whether the aedilician remedy for returning the thing could be used in other contracts than sales (6.2.2). Though 17th and 18th century natural law scholars themselves did not engage with the matter, some of their usus modernus-contemporaries did. Their writings demonstrated a clear tendency to have equity overrule the restrictive text of D. 21.1.63. Sales and lease are very similar contracts, so that equity forbids that remedies which the buyer could bring in the event of a defect in the sold item should be withheld from the lessee with a similar problem with the thing leased.
Furthermore, similar to early modern Castilian scholars, 17th and 18th century natural law scholars betrayed unease in holding an ignorant seller or lessor of a defective item liable for more than the item's value. Wolff approached D. 19.2.19.1 and D. 19.1.6.4, which contained such a liability for an ignorant seller or lessor of a defective barrel, with a presumption of fraud (6.2.3). Domat and Pothier also explained the same texts in terms of presumed knowledge on the seller's or lessor's side. It is telling that the examined natural law scholars all adhered to some kind of fault or refrain from discussing the barrel texts at all. The fact that usus modernus-scholars also failed to discuss the possibility that an ignorant seller was liable for more than the thing's price, illustrates how the Verschuldensprinzip became generally accepted from the 17th century onwards.
Finally, natural law scholars of the 17th and 18th centuries considered the liability for encumbrances on immovables not dogmatically different than liability for defects or eviction (6.2.4). Already Grotius seemed to reason that encumbrances should be treated as any other defect in a sold object. The French scholar Pothier certainly did. In keeping with Accursius he applied D. 19.1.13pr. about contagious cattle and rotten wood to all cases of the seller's liability in the contract of sale, including those in which the seller had delivered an encumbered thing. Also in line with medieval communis opinio, Pothier excepted from liability sellers of burdens of which the buyer should have been aware of. Usus modernus-scholars adopted the same approach to the matter.
The indebtedness of the scholars studied in this chapter to early modern Castilian natural law thinking was ostentatiously demonstrated in their discussion of the remedy for lesion beyond moiety (6.3). Although Thomasius attempted an attack on the foundations of that remedy, he did not succeed in convincing his peers. The majority of 17th and 18th century natural law scholars proffered views which were firmly rooted in the concept of fairness in exchange based on an objective just price.
However, the remedy for lesion beyond moiety was no longer the unrivalled champion in the solving of a breach of fairness in exchange (6.3.1). Pufendorf rejected the remedy's standard of a deviation of more than half the thing's just price as chosen too randomly. In France, scholars limited the remedy's application to sellers only or completely
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