Page 443 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
should be solved, the history of B's legal options in subsequent ages is marked by a
continuous tension and interplay between the two types of remedies. Due to changed
approaches to law, societies favoured the one at some point, while the other again
appeared in the limelight at other moments in history.
A clear example of such a development was observed in early modern Castilian civil
law. Probably under the influence of early modern scholastic thought, 16
practice of theRoyal Chancery of Valladolid limited B's legal options to the remedy for
th
century legal
lesion beyond moiety. In the event his prejudice did not amount to half the thing's just
price, it seemed that he could only sue A in the event A had concealed the defects or
warranted its absence, i.e. when A had acted in bad faith.
Yet, subject to the capriciousness of history, which does not follow a linear path, in
the works of 16
th
century humanist scholars, B's legal position was again largely restored to
the one he occupied according to medieval ius commune. Roman-Dutch and Roman-
Frisian legal doctrine and practice added even more remedies with traits based on the
deductive
approach as advocated by the early modern Castilian scholarship to the already
sundry remedies available to B in medieval and humanist law.
Eventually, aided by 17
th
and 18
th
century natural law scholars, the natural law views
first developed in early modern Castilian moral theology made it to the worldly courts
outside Spain. As a result, the merging of the aedilician and civil remedies into one set
became definite. Moreover, B's legal position was increasingly considered from a
perspective which took breach of fairness in exchange into account, not what type of
contract had been breached. The remedies B could legally bring were the result of A's
failure to live up to his duty as giver to safeguard the absence of defects, encumbrances,
or third-party claims. The kind of defect no longer determined what remedy B could bring.
This view lead scholars to abandoning the specific traits which had accrued to ius
commune-remedies, since these had originally come into being as remedies meant for use
in particular contracts. For example, as natural law did not determine a period of limitation
for personal actions there was no need to subscribe to the length of remedies mentioned
in the Corpus iuris civilis. Neither did special features as the buyer-friendly characteristics
of the aedilician remedies fit in a general natural law theory of breach of fairness in
exchange. Also under influence of natural law principles, natural law scholars determined
A's liability in accordance with his good or bad faith.
Nonetheless, a significant part of the
ius commune-subtleties with regard to the thing lived on in legal practice and determined
which remedies B could institute. This co-existence of natural law remedies based on
deductive reasoning and ius commune-remedies which continued to be used in legal
practice caused a queer mixture of both in the civil codes which began to appear from the
late 18
th
century onwards. The natural law codes of Prussia and Austria largely shaped B's
remedies in accordance with natural law views of breach of fairness in exchange. Hence, if
A breached his duty to safeguard the absence of defects in the object exchanged - no
matter what object was exchanged - , B had a remedy of which it was clear within which
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