Page 342 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Seven. Codes of civil law on the remedies for defects in the thing exchanged for money
7.1 Introduction
With the rise of nation states, the call for national civil codes became increasingly louder.1 In France, Charles-Louis Montesquieu (1689-1755)2 in his L'esprit de la loix argued that the law was not only a product of unchangeable natural law prescripts but also of the culture in which it developed.3 In the German regions, Anton Friedrich Justus Thibaut (1772-1840)4 and Franz Anton von Zeiller (1751-1828)5 urged with similar arguments for their own national code.6 Also in other parts of Europe the call for national civil codes was heard. The 1798 Staatsregeling (Constitution) of the Dutch Republic announces the coming into being of a national civil code in article 28. In Spain, codification projects started from 1821.7
The coming into being of the nation state's civil codes evolved along various lines. First, they were rooted in usus modernus-doctrine.8 At the dawn of the age of codification, many Gordian knots present in ius commune law regarding the sale of defective goods had already been cut. Usus modernus-scholars had accepted that a knowing seller was more liable than one who was unaware of a defect in the thing sold9, that a price reduction should be assessed objectively10, that the aedilician remedies possessed certain favourable characteristics11 and that the aedilician limitation periods applied to both aedilician and contractual remedies for latent defects.12 Usus modernus-scholars also persisted in maintaining a strict division between the aedilician and contractual remedies with regard to the kind of defects for which these could be brought. Furthermore, they generally did not allow for an extension of the aedilician remedies to lease.13 Regarding the remedy for lesion beyond moiety usus modernus-scholars univocally approved of it in its most extended version. They applied the remedy to buyers, movables, and all other bona fide contracts. The just price had to be determined objectively and the remedy lasted for 10 or 30 years.14
This doctrinal framework partly resounded in the major German civil codes which are central to this chapter, sc. the Allgemeine Landrecht für die preußischen Staaten of
1 2
3 4
5 6 7 8 9
10 See 6.2.1.3.
11 See 6.2.1.5.
12 See 6.2.1.4.
13 See 6.2.2.
14 See 6.3.
Wieacker, Privatrechtsgeschichte, pp. 322-326, 331-332.
For a biography of Montesquieu see É. Tillet, 'Montesquieu, Charles-Louis de Secondat Baron de la Brède', in: Dictionnaire, pp. 572-574.
Rabello, 'Montesquieu', passim.
For biographical data see E. Landsberg, 'Thibaut, Anton Friedrich Justus' in:
744.
For biographical data see <austria-forum.org > biographien > Zeiller, Franz Anton von.
Thibaut, Über die Notwendigkeit, passim; Zeiller, 'Nothwendigkeit', passim.
Sirks, 'Code Napoléon', p. 323; Florijn, Ontstaan, p. 9; Tomas y Valiente, Historia, pp. 540ff. Wieacker, Privatrechtsgeschichte, pp. 322-323.
See 6.2.3.
338
ADB 37 (1894), pp. 737-