Page 461 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
was presumably better suited to translate and give practical effect to the requirement of fairness in exchange, which commutative justice imposed on contractual relations in which both parties had to perform. By and large, the early modern Castilian approach to law differed significantly from earlier usage. Deductive reasoning and a strong inclination to explain moral duties in civil law terminology by moral theologians seemed to have added to a change in thinking about the law by civil law scholars and practitioners as well.
Legal humanists, however, appeared remarkably immune to the shift in legal thinking which their contemporaries south of the Pyrenees had brought about. Generally, humanist civil law demonstrated a tendency to further pursue and refine the methods of interpretation applied by medieval scholars shored up by historical argumentation and knowledge of Greek. Hence, Accursius' distinction between aedilician and civil remedies was restored in its full splendour by Cujas and the distinct liabilities for defects and encumbrances even further accentuated by Doneau. Another group of legal humanists adhered to the views of De Belleperche and De Revigny. As a logical result, in imitation of their medieval predecessors, legal humanists provided as many solutions as interpretations which the Corpus iuris civils could yield. Not infrequently humanist scholars often advocated explanations of the Corpus iuris civilis which are difficult to rhyme. For example, it was observed that Cujas kept the Accursian distinction intact. At the same time, however, he extended the aedilican remedies to lease, a move which the medieval mindset had never envisaged as being possible. In the same vein, Doneau disproved a significant part of Accursius' theory of two sets of remedies for defects in things sold, whereas at the same time he shrunk from breaking with medieval doctrine when it came to extending the aedilician remedy for returning the thing to lease. It seems that just as in the medieval approach to law, neither considerations of practical nature or coherent concepts of justice played a part in the humanist interpretations of the law governing defects in things exchanged. All this had as a result that the interpretations which humanists concocted in answer to the intricate law developed by the descried 'writers of glosses' turned out to be of a complexity which even the craftiest medieval mind would never have dared to imagine for real.
Roman-Dutch and Roman-Frisian scholarship proved perhaps even more eclectic in nature than legal humanism. Not only the medieval and humanist approach to law were carried on in the works of Dutch legal scholars, the deductive approach was also favoured in Castilian scholasticism. In addition, local custom influenced the shape the Dutch law about defects in things exchanged for money would take. The result was a variegated legal landscape. For example, the limitation of remedies for defects which Dutch scholars adopted varied in accordance with the views in medieval ius commune or local custom. Some Dutch scholars defended the abolition of the perceived penal character of the aedilician remedies either with reference to humanist ius commune-doctrine or the requirement of fairness in contracts. The extension to lease of the aedilician remedy for rescission was rejected both on the grounds of medieval interpretative as well as
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