Page 34 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER ONE
fraction of what has been decided on the issues discussed in this book. However, the chapter on early modern Castilian law constitutes an exception. Since legal developments in Spain's golden age still lack the attention they deserve, I made an extra effort to incorporate not only doctrinal developments but also legal practice of 16th century Castile in this study.53
In addition to these sources of legal practice, this study also takes into account what may be called 'semi-' legal practice. Now and then prints appeared of scholars who had gathered notes of cases to which they had attended as either judge or assessor (like Viglius). Though these works are somewhat farther removed from what happened in the courts than the courts' original files, personal notes by, for example, Cornelis van Bynkershoek (1673-1743)54, from 1704 to 1743 member and from 1724 president of the Supreme Court of the provinces of Holland, Zeeland and West-Friesland, nevertheless provide revealing insights into how sales of defective things were dealt with in practice.
1.3 Structure
This study chronologically explores the major currents of legal thinking known by western legal history for their legal positions concerning remedying defects in things exchanged for money. Starting with the age of the medieval glossators and commentators in chapter two, chapter three of this book continues with the study of Castilian law as it was heavily influenced by early modern scholasticism. Traces of both medieval and early modern scholastic reasoning will be shown to emerge in the eclectic legal humanism discussed in chapter four. How humanist viewpoints are further elaborated in Dutch legal scholarship and practice of the 16th and 18th centuries is explored in chapter five. This said, the Dutch scholar Grotius carried on the tradition of early modern scholastic natural law. The latter tradition which built on his legacy and which formed the catalyst for legal reform in the sense of exclusively valid civil codes is subsequently discussed in chapter six. The civil codes which emerged from the late 18th century onwards are the central topic of chapter seven. At the end of chapter seven, the early modern period has been dealt with in full. However, to provide input for the legal debate today, another eighth chapter has been added which addresses some major modifications of civil law and the problems which these recently carried out or currently pending civil law reforms might engender. The study ends with chapter nine and concluding remarks on the developments of the law governing defects in things exchanged for money as they emerged from the findings presented in this study.
53 A four-month stay in Spain to study and transcribe manuscript records of cases decided by the Royal Chancery of Valladolid, Castile's highest appellate court of the early modern period, enabled me to endow the chapter on early modern Castilian law and scholasticism with a significant number of legal disputes about the sale of a defective thing. A more detailed description of the files I studied in Valladolid and the methodology used is contained in chapter 3.2.1.1.
54 Star Numan, Cornelis van Bynkershoek, passim; J. van Kuyk, ''Bijnkershoek, Cornelis van', in: NNBW, vol. 1, pp. 533-535.
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