Page 150 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
P. 150

CHAPTER THREE
Azevedo confirms the wide scope of the remedy for lesion beyond moiety when he contends that an encumbrance on a thing should be deducted from the thing's value.323 Thus, also a concealed servitude or tax can trigger a remedy for lesion beyond moiety, if it causes the price paid for the thing more than one and a half of its just price. Similar to contemporary theologians, Azevedo focusses on the consequences of a defect for the thing's price, not on the defect itself.
Also the theologians' difficulty with granting remedies against sellers in good faith seems to have percolated into the forum externum. Albornoz accordingly limits the scope of the remedy for defects by granting them only against knowing sellers of animals.324 Above, Molina was already referred to who holds that a seller in good faith can in the forum externum only be sued in the event of lesion beyond moiety.325
On the other hand, we find scholars who stick to the traditional ius commune doctrine about remedies for latent defects. Covarrubias seems eager to have Castilian civil law get rid of the idea that those remedies do not work against a seller in good faith. 'Let it once and for all be noted, that those actions quanto minoris and redhibitoria work also against him who contracted bona fide, see D. 19.1.6pr.'.326 Hevia Bolaño has the same.327 Nonetheless, it is telling that both scholars apparently felt the need to defend their view against the prevailing view that sellers in good faith can not be made responsible for defects in goods they have sold.
Though Castilian civil law scholars thus disagree about the role the remedies for latent defects should be assigned to, legal practice more straightforwardly keeps to Molina's wish that the rules applied in civil law should conform as much as possible to the rules developed for the confessor's bench.
In the pleitos and writs of execution of the Royal Chancery issues related to defects in the sold merchandize are mostly expressed in terms of a deviation of the just price, though not any deviation but only a lesion beyond moiety triggers liability.
In a case between Vega Sanz and Hortiz, one of the witnesses appointed by Vega Sanz, the buyer of a horse that did not accept spurs, says that 'according to the just and common price, the horse with the said defects or with whichever one of them is not worth 3000 reales'.328 The witness thus translates the horse's defects in terms of just price. A
323 Azevedo, Commentarii, to Nueva Recopilación 5.11.1, no. 15, p. 345: 'onus rei venditae infixum minuit eius valorem et talis oneris habenda est consideratio ad hunc effectum nam onus est pars pretii'.
324 Albornoz, Arte, 2.14.1, fo. 61v.: 'El que vende qualquiera bestia con tacha o enfermedad (si sabiendo la no lo dize) puede el comprador... demandar lo que menos vale..., (transl.)... of him who sells whatever animal with a defect or illness (if while being aware of that, he does not say so) the buyer can... claim what the animal is worth less \[my emphasis\]'.
325 See 3.2.2.1.
326 Covarrubias, Relectiones, 2.11, no. 5, in: Opera omnia, vol. 1, fo. 214: 'Illud enim satis sit modo
adnotasse, actiones istas quanto minoris et redhibitorias competere etiam contra eum, qui bona fide
contractum fecerit, l. tenetur, ff. de action. emp.'.
327 Hevia Bolaño, Laberinto, 1.13, no.10 p. 144: 'Esta redhibitoria o quanto minoris ha lugar... ora sea
conciencia o ignorancia que dellos tenga el vendedor'.
328 Pl. civiles, F. Alonso (f.), caja 494, 3, scs. 41, 43: 'El testigo | presentado por parte | \[sc. 41\] del antonio
ruiz de la | vega en el pleito que ten- | ia con francisco hortiz vecino de | villalon: ... | \[sc. 43\] (v) y a justa 138
 

















































































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