Page 450 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
legal practice. It may be that the natural law preference for an objective price as a pivot around which the questions of fairness turned, had seeped through to legal humanism. On the other hand, the humanist scholars studied in this book demonstrate remarkably little awareness of the theological works espoused in the same period from the Salamancan collegios, so that definite inferences can not be made.
Another branch of humanists reached exactly the opposite positions. Though arguing even more in medieval fashion, this group, headed by the dissident medieval scholars of Orléans and those who subscribed to their interpretations, rejected the assertion that two different sets of remedies for defects in sold things existed in the Corpus iuris civilis.
A general theory of remedies for non-performance of which the remedies for defects in the thing are part could be glimpsed in the works of Doneau, although he was still far from equating the remedies for defects with the action on the sales contract for non- performance and left most of their particularities intact.
Roman-Dutch and Roman-Frisian scholars partly adopted the Accursian view which distinguished between an aedilician and a civil set of remedies. They upheld the view that the aedilician remedies only lay for corporeal defects and some scholars subscribed to the buyer-friendly characteristics of the aedilician remedies. Nevertheless, possibly driven by changes of procedural law, a majority of Dutch scholars no longer accepted the existence of various limitation periods. Some accepted only the short aedilician periods, others opted for a one-year period for all personal remedies. Furthermore, similar to their humanist colleagues, they questioned Accursius' subjective estimation of the thing's price in the determination of the price reduction which the seller was due. As regards legal practice, Cornelis van Bijnkershoek's personal notes, similar to those of the humanist Viglius, demonstrated that the Supreme Court of Holland, Zeeland and West-Friesland used an objective price estimation based on the common market price of the traded object.
However, unlike medieval and humanist scholars, some Roman-Dutch and Roman- Frisian scholars distinguished the aedilician remedies from their civil equivalents by pointing out the particular purpose for which they were allegedly brought to life: the correction of inequality in contracts. Here, evidently a reference to the early modern scholastic notion of commutative justice is made. A peculiar result of this view was that, against the current of time to abolish penal remedies in civil litigation, Roman-Dutch scholars, in keeping with views, ascribed a penal character to the aedilician remedy for returning the thing. Roman-Dutch scholars considered that a suitable means to correct contractual unfairness.
In the course of time, early modern scholastic natural law concepts became part of the vocabulary of legal scholars across Europe. The treatises of 17th and 18th century natural law scholars from the Netherlands, the German regions, and France most markedly demonstrate to have been influenced by early modern scholasticism. The concept of fairness in exchange became the point of departure in the debate about how
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