Page 153 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
words, the contract had answered to the requirement of fairness in exchange that no party should find himself put at a serious advantage or disadvantage after the fulfilment of the contract. The yardstick to find out whether this fairness in exchange had been realised was the just price of the object of the contract (3.2.2.3). In the view of early modern theologians, each object or performance had an objective price irrespective of the views of the contracting parties. A deviation of that just price constituted a breach of fairness in exchange and accordingly triggered a duty to make restitution the damage inflicted (3.2.2.4). This duty to make restitution for a party who had benefited from the contract at the other party's expense covered all contracts. He could either make restitution by paying a sum of money but he could also restitute by repairing the damaged thing. Another consequence of reasoning from fairness in exchange was that an agreed penalty clause could never result in a duty to restitute for more than the damages caused by such a breach (3.3.1.4).
From the combination of the aforementioned general principles and the theory of fairness in exchange resulted that scholars did not think in terms of defects in the thing sold and particular remedies with which the sale of a defective item could be resolved. Early modern scholastic theologians began to frame the sale of a defective item in the more general terms of unjust enrichment, error or mistake (3.2.2.5). After all, a seller of a defective thing did not sin, as long as he lowered the thing's price in accordance with its just value. In the absence of sinful behaviour, the buyer had no claim to restitution, as the buyer had not involuntarily entered into the sale. In other words, there was no error for which the seller should make restitution.
Not all of the foregoing immediately influenced the shaping of the law applied in early modern Castilian civil and canon law, or, the forum externum. Though compared to their medieval ius commune predecessors, early modern Castilian civil scholars paid significantly less attention to the question whether there existed two sets of remedies for defects in the thing sold (3.3.1), this seems more the product of a long tradition of statutory lawmaking, which had already tackled this ius commune intricacy. With regard to the method to calculate the price reduction a seller of a defective item is due, the 13th century Siete Partidas applied only one objective method. López and other early modern Castilian civil law scholars took the same view (3.3.1.2).
As concerns the limitation of the remedies for defects in the thing sold, the Siete Partidas opted for short limitation periods to all remedies for latent defects, which were also adopted by early modern Castilian civil law scholars. The perpetual civil remedy had disappeared. Only in the event of fraud (dolus) at the side of the seller Hevia Bolaño was willing to accept that the buyer could bring a remedy over a longer period (3.3.1.3).
Lastly, the Siete Partidas did not mention the buyer-friendly characteristics of the aedilician remedies. In accordance with the scholastic view as expressed by Molina which leaves no room for penalties or disproportionate duties of compensation, early modern Castilian legal scholars did not betray any awareness of these aedilician remedies'
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