Page 462 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
systematic arguments. In their deliberations about the seller's liability for encumbrances on immovables Dutch scholars dug up again the whole gamma of medieval legal reasoning. The remedy for lesion beyond moiety was explained in terms of fairness in exchange and adopted in its medieval ius commune-outlook. Particularly Roman-Frisian civil law accepted the remedy for lesion beyond moiety in its most extended medieval ius commune-version. In general, early modern Frisian legal scholarship proved highly receptive to medieval ius commune-interpretations of the law about defects in things exchanged for money. This was remarkable despite the self-declared view propagated by Roman-Frisian scholars that their approach to law was more 'Roman' in outlook than the approaches to law of the surrounding Dutch provinces. Taking everything into consideration, it seems hard to consider Roman-Dutch or Roman-Frisian scholarship as one current of legal thought of which the members share specific traits. In their dealings with the law governing defects in exchanged items through time, Dutch scholars proved either to be influenced by humanist approaches to medieval ius commune, by natural law scholastics, or by commentators of customary law.
Compared to legal humanism and Roman-Dutch and Roman-Frisian legal scholarship, 17th - and 18th century natural law presented a more coherent picture. In all issues discussed in this investigation, natural law scholars advocated a deductive approach to law based on early modern scholastic concepts. In keeping with early modern scholastic views, the remedies open to a buyer were not determined by the kind of contract that had been breached. According to natural law, a breach of fairness in exchange in whatever contract in which both parties had to perform produced uniform effects. That 17th and 18th century natural law scholars went further in their efforts to come to a consistent approach to the law governing defects in goods sold than their Castilian predecessors was illustrated in their dealings with the remedy for lesion beyond moiety. Glorified by early modern scholastics, this remedy did not escape the natural law scholars' critical minds. According to them, a prejudice of the thing's just price was not the sole criterion by which to determine whether a breach of fairness in exchange had occurred. A lack of quality in the item traded was equally suited to serve that purpose. As a result, unlike their Castilian predecessors, natural law scholars of the 17th and 18th centuries considered both remedies based on defects and the remedy for lesion beyond moiety as suitable means to legally solve a breach of fairness in exchange.
As a result of deductive reasoning the outlook of the remedies for latent defects underwent significant changes. Natural law scholars largely ignored medieval ius commune-subtleties concerning the two sets of remedies for defects in exchanged things which were supposedly transmitted in the Corpus iuris civilis. The ius commune-remedies for defects lost their features which were specifically adapted to the sales contract, as for example the buyer-friendly features of the aedilician edict. Also differences as to whether or not the defect was corporeal or lay in a movable or immovable object were no longer taken into account. Particularly noteworthy was that natural law did not dictate specific
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