Page 133 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
3.4 Lesion beyond moiety (laesio enormis)
A defect in the thing sold could diminish the thing's worth to such an extent that the sales contract no longer answered to the requirement of fairness in exchange. Under such circumstances the duped seller could bring the remedy for lesion beyond moiety modelled after C. 4.44.2. As observed in section 3.2.2.4, Castilian jurists and theologians considered this remedy the legal expression of the theological concepts of fairness in exchange and just price. Not only was the seller who had received too much liable to make restitution in the forum internum.237 Also in the forum externum or Castilian civil law could the duped party claim rescission of the contract or compensation for the difference between the just price and the price paid, if he had been prejudiced for more than half the thing's just price. In fact, the choice was not his, but of the party who had sold for too high a price.238
Medieval ius commune-doctrine had already extended the application of C. 4.44.2 to buyers, sales of movables and lease. Furthermore, the remedy could be brought over a period of 30 years and applied to lease too. In this section it will be explored to what degree early modern Castilian doctrine of restitution brought further changes in the way the remedy was applied in civil law.
3.4.1 Presumption of fraud
In keeping with Aquinas' views early modern scholastics are reluctant in accepting a duty to make restitution when fraud was absent.239 early modern Castilian theologians in their wish to uphold the remedy, which is granted despite the fact that the seller was unaware of the thing's lesser value, need all their inventiveness to explain and justify why the remedy for lesion beyond moiety can be instituted.
Medieval ius commune had invented the doctrine of 'fraud in the situation itself' (dolus in re ipsa). Though C. 4.44.2 does not mention any requirement of fraud, medieval scholars described an excess in the selling price of more than half the thing's just price as fraud, not by the seller, but 'in the situation'; the paid price is higher than can be justified under the circumstances. By this means, medieval scholars managed to explain why also an unknowing seller could be sued with the remedy for lesion beyond moieyt. The generally acknowledged principle that only fraud allowed for remedies in sales of defective goods urged them to justify the remedy for lesion beyond moiety. This remedy did not require fraud and accordingly confused the medieval doctrinal minds.
237 For the exact deviation of the just price that was required see section 3.2.2.3.
238 Albornoz, Arte, tit. 7, capp. 1-2, p. 55; \[cap. 2\] El vendedor o comprador que fuere engañado en mas de
la mitad del iusto precio... en tal caso el que hizo el engaño a el otro, si fuere el vendedor esta obligado a tornar a tomar su cosa y dar lo que por ella le dieron, y sino bolver la demasia de el precio que lleno, y si fue el comprador esta obligado a bolver la cosa comprada, y tomar lo que por ella dio, y sino suplir su justo valor, ...'; Gómez, Variae resolutiones, lib. 2, cap. 2, no. 22, p. 217: 'potest deceptus petere, quod rescindatur contractus, vel suppleatur iustum pretium'; Padilla y Meneses, In quaedam, no. 2, fo. 72: 'nisi emptor malit iustum pretium supplere'; Gómez and Padilla y Meneses turn around Roman law in which it was to the party who had gained advantage of the lesion to choose between rescission of the contract or compensation. See 1.1.1.
239 See 3.2.2.1.
121