Page 453 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
resumed the attack on the text initiated by Cujas. Yet, their arguments were of another kind than Cujas'. Some usus modernus-scholars demonstrated a clear tendency to have equity overrule the restrictive text. Sales and lease are very similar contracts, so that it would be against equity when remedies which the buyer could bring in the event of a defect in the thing sold were withheld from the lessee suffering from a similar problem under lease. Natural law scholars themselves had not explicitly pronounced upon the matter.
(3) The third controversial issue which was used as a lead to locate changed perceptions of the law governing the exchange of money for a defective thing concerned what rules ius commune-scholarship and legal practice employed with regard to the scope of A's liability. Medieval scholars agreed that D. 19.1.13(14)pr. about rotten beams and contagious cattle provided the general rule which had to be applied to all instances in which a defective or encumbered item was delivered. According to this text, a knowing seller is liable for more than the seller who had not been aware of any defect in the thing sold. However, contrary to this general rule, texts D. 19.1.6.4 and D. 19.2.19.1 hold a seller and lessor liable for all loss where ignorant of a defect in the barrel they exchanged. Medieval scholars put considerable efforts into aligning these unruly texts with D. 19.1.13(14)pr. However, their efforts did not go beyond explaining the text with casuistic arguments.
Contrariwise, early modern Castilian scholasticism argued from deductive principles based on the ideas about commutative justice, which included that someone should not benefit from a contract at the other party's expense. Hence, in principle, A has to compensate B's loss, but nothing more. At the same time, B's claims on A were curbed by the fact that he too should not gain more from the contract than initially agreed. Early modern scholastics were consequently ill at ease with holding a seller who was unaware of the defect in the thing liable for all contractual damages. Nonetheless, contemporary civil law doctrine held on to the medieval ius commune approach in the treatment of D. 19.1.6.4 and D. 19.2.19.1, which texts state a liability for all damages for a seller or lessor ignorant of the defects in the barrels sold or leased. To bring these Digest texts in line with the earlier stated scholastic principles, the theologian and legal scholar Molina read a presumption of fraud in them. Early modern Castilian legal practice, however, more in keeping with early modern scholastic views, held only fraudulent sellers liable for compensation.
An effort similar to Molina's to run with the hare and hunt with the hounds was already encountered in the somewhat older works of the legal humanists Dumoulin and Mudaeus. These scholars managed to interpret the unruly texts D. 19.1.6.4 and D. 19.1.2.19.1 in keeping with the general rule in D. 19.1.13(14)pr. by reading professional sellers and lessors into the first two. Apparently, professionals were subject to an increased liability regime, as Dumoulin and Mudaeus understood the texts. This doctrine of professio artis obligat would find its supporters throughout the subsequent periods investigated in this book. Other humanists, however, such as Cujas and Doneau, continued to explain the texts by means of a medieval casuistic approach.
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