Page 346 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
7.2 The Allgemeine Landrecht für die preußischen Staaten (1794)
Under the inspiring leadership of Frederic II, Prussia embarked on a journey towards a codification of civil law consisting of clear provisions which, in the words of the king 'would allow no place to pettifoggery'24. With regard to the law about defects in the thing sold, the ALR's structure reflects systematic natural law thinking.25 As a consequence, it presents a wholly different picture from that which we have observed in pre-codification jurisdictions in which ius commune was the main source of sales law.
In order to demonstrate more clearly to what extent the ALR deviated from the path set out by ius commune-scholarship, the next section will discuss in brief what the views on the subject were just before the coming into being of the ALR (7.2.1). After this follows a treatment of the ALR's deductive structure (7.2.2). The law about defects in the thing sold has become part of the overarching concept of Gewährleistung, which concept will be described in some detail. Finally, the ALR's substantive law on the remedies for defects and lesion beyond moiety is investigated (7.2.3 and 7.2.4). Findings in the latter two sections are constantly mirrored to the prevailing doctrinal positions found in ius commune-works written prior to the ALR or after the ALR came into force as expounded in section 7.2.1. For illustrative reasons, the investigation of the ALR's substantive law includes some judgements given by the Königliches Obertribunal, the highest appellate court in Prussia while the ALR was in force. The Tribunal's Entscheidungen are explored for useful material until 1851, the year in which Savigny published his Obligationenrecht and a new wind that had already been blowing in the legal landscape shook up the German law of obligations as well.26
7.2.1 The law of latent defects in 18th century Prussia
In the legal doctrine just before the ALR came into force, usus modernus-positions about the law of defects in the thing sold discussed in this chapter's introduction prevailed. Writers who illustrate to what extent that was still the case at the time the ALR came of had just come into existence were Christian Friedrich von Glück (1755-1831)27 and Ernst Christian Westphal (1737-1792). The first, professor in Erlangen who wrote a possibly over-extensive commentary on the Digest, is one of those scholars who did little more than repeating usus modernus-doctrine. Yet, he did so very thoroughly, in an easily accessible work called Ausführliche Erläuterung der Pandecten nach Hellfeld.28 Glück held that the aedilician and contractual remedies are clearly distinct measures which serve different
24 Dissertation, in: Oeuvres de Frédéric II, roi de Prusse, vol. 7, p. 116: 'Des lois précises ne donnent point lieu à la chicane...'; Lokin & Zwalve, Codificatiegeschiedenis, p. 226
25 Wieacker, Privatrechtsgeschichte, pp. 332-333.
26 Savigny (1779-1861), Das Oligationenrecht als Theil des heutigen römischen Rechts, Berlin: 1851-1853.
27 R. von Stintzing, 'Glück, Christian Friedrich von', in: ADB 9 (1879), pp. 253-256.
28 Glück, Ausführliche Erläuterung (1819), 20.1, §1111, p. 86 (liability); idem, §1107, p. 50 (assessment);
idem, 20.1, §1113, p. 153-155 (limitation); idem, §1107 , p. 41 (extension); idem, §1111, p. 107 (penalties), p. 110 (multiple seller's liability in solidum); idem, 20.1, § 1107, p. 137 (corporeal vs non- corporeal defects).
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