Page 348 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
law with catholic morality. According to Thomasius, not clerics, but the contracting parties should determine by agreement what constitutes a just price for the object sold. Consequently, the question whether the item delivered answered to what the contracting parties' had agreed on, however absurd the deal might have been, determined whether there had been a breach of contract. There was no role for a third party who independently fixed a just price. A latent defect, of course, could not have been taken into account by the parties when giving consent, simply because it was unknown to them. The price, however, could. Hence, it makes sense to grant unknowing buyers means to remedy latent defects, whereas it does not to give buyers an instrument to attack a sales on the grounds that the price they had explicitly agreed on was not just.35 Thomasius' way of reasoning went against the grain of hitherto accepted natural law theory based on fairness in exchange. It would frequently surface in the debates that took place in the various committees installed to think out a Prussian Civil Code. The following sections explore what the scholars concerned with the design of that code picked out of the whole gamut of available legal theory to shape the law concerning defects in sold things.
7.2.2 Towards a Prussian civil code
The call for a Prussian civil code became all the more urgent after a string of miscarriages of justice. King Frederic II of Prussia believed that a civil code would prevent similar events. In 1746, the enlightened ruler gave his first orders to compile 'ein Teutsches Allgemeines Landrecht, welches sich blos auf die Vernunft und Landes-Verfassungen gründet... damit einmahl ein gewisses Recht im Lande etabliret...'.36 The lurking conflict between natural law reason and the usus modernus-tradition can already be glimpsed from this announcement, with the Landes-Verfassungen being based on ius commune and not on natural law precepts.37
After some foundered attempts by Samuel von Cocceji, the project was passed into the hands of Carl Gottlieb Svarez (1746-1798)38, a student of Ernst Ferdinand Klein (1744- 1810)39, and an adherent of Wolff's theories. The Code enjoyed its coming into force on 1 June 1795. Proclaimed a subsidiary source of law where provincial laws and statutes already existed, it nevertheless strongly reduced the role ius commune had hitherto played in the regions that now formed Prussia.40 Yet, since it was based on an extract of ius commune-law, an investigation into the Allgemeine Landrecht gives an insight into how these rules were conceived in the early codification era. Let us therefore continue with its
35 See 6.3.2.
36 Stobbe, Geschichte der Deutschen Rechtsquellen, II, 1864, p. 451.
37 For example, with regard to the acceptance of the remedy for lesion beyond moiety. See 6.3.
38 Schulze, Die laesio, p. 84.
39 Kleinheyer, 'Klein, Ernst Ferdinand', in: NDB 11 (1977), pp. 734-735. Online version: <www.deutsche-
biographie.de/pnd116211148.html>
40 According to the Publikationspatent of 5 February 1794 in: Koch, Allgemeines Landrecht, pp. 2-4: '....Die
in den verschiedenen Provinzen bisher bestandenen besonderen Provinzialgesetze und Statuten behalten zwar vor der Hand noch ihre gesetzliche Kraft und Gültigkeit'; Lokin & Zwalve, Codificatiegeschiedenis, p. 231; Klischies, Entwicklung, p. 75.
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