Page 452 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
the civil law had been pruned of its medieval intricacies, the law of limitation had not grown less complex. Questions about limitation would continue to haunt civil law systems until the present day.
(2) Throughout the early modern period legal scholarship and practice struggled with D. 21.1.63 which seemed to prohibit an extension of the aedilician remedy for returning the thing, because of a defect, to lease. Indeed, it seems that the aedilician remedies concentrate on the factual situation in which someone receives an item in his possession for which possession he had agreed to pay a sum of money. This may just as well qualify as lease. After all, a lessee holds and uses a thing in exchange for a certain sum of money, be it paid in total in advance or in several instalments.
Nevertheless, a majority of medieval legal scholars stuck to the text of D. 21.1.63 and excluded the extension of the aedilician remedy for returning the thing to lease. They justified their position by reasoning that 'in lease one does not intend to transfer property, as one does in sales'. Despite the spirit of early modern scholasticism pervading early modern Castile, the civil law in Castile of the period seems to adopt the medieval position. Yet, this may also be ascribed to the predominance of the remedy for lesion beyond moiety which the lessee could bring, if his prejudice amounted to more than half the just price for holding and using the thing. Due to the preponderance of that remedy in the early modern Castilian legal landscape, the remedies for defects were dealt with only cursorily.
The first serious attempts to tear down the wall thrown up by D. 21.1.63 was made by the legal humanist Cujas who, with the help of an unglossed Greek Codex text and a grammatical analysis of the text of D. 21.1.63, concluded that the text did 'not at all' exclude the aedilician remedy for returning the thing to sales. Yet, Cujas' position was exceptional. The majority of humanist scholars did not go beyond what medieval scholarship had written on the matter.
Another shift in approach was observed in Roman-Dutch and Roman-Frisian legal scholarship. Contrary to Cujas, some Dutch scholars kept to the medieval view that lease does not transfer property and for that reason did not permit the aedilician remedy in lease. However, others argued that a defect in a leased object caused less damage than a defect in a thing sold. A lessor could simply return the object, as the lease contract already provided for a suitable remedy in the event the object leased out did not serve the purpose for which it was leased. Contrariwise, these scholars argued on historical grounds that in sales there was a need for additional remedies. Before the aedilician edict was introduced, a buyer who had concluded a sale on an object which turned out to be defective was definitely left in the possession of a defective thing. There was no action on the sales contract, since a seller had only the duty to ensure the thing's unhampered possession, not its being free from defects. This absence of a contractual remedy justified the particular remedy for rescission of a sale as mentioned in D. 21.1.63.
Despite the Roman-Dutch ingeniousness aimed at saving D. 21.1.63, usus modernus-scholars who were inspired by 17th and 18th century natural law thinking,
452