Page 156 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CHAPTER THREE
35.2.63. Though early modern scholastics also gave their full support to such a price determination based on the object's common market value, the choice for it by civil law scholars does not tell anything about supposed scholastic influence. After all, from medieval ius commune onwards scholars had accepted this objective standard. Also in keeping with medieval ius commune and the Siete Partidas, early modern Castilian civil law scholars extended the remedy for lesion beyond moiety to lease, to buyers and to movables (3.4.4).
By and large, it proved hard to find out what exactly moved the mentioned civil law scholars to reinterpret the remedy for lesion beyond moiety as they did. All scholars are very sparingly when it comes to providing their legal interpretations with a theoretical underpinning.
Remarkably though, the influence of contemporary changes in moral theology is more keenly felt in legal practice. For the purpose of exploring the influence changed views on justice in early modern scholasticism had on civil law, this chapter discussed a modest amount of case law brought before the Royal Chancery of Valladolid, Castile's highest appelate court during the early modern period. Its manuscript records yielded examples of how sales of defective things were solved in early modern Castilian practice. It appeared that men in court left much of the complex ius commune doctrine for what it was.
The study of the Royal Chancery's case law above all demonstrated that the preferred remedy to solve defects in sold goods was the remedy for lesion beyond moiety. Hardly any cases emerged in which the remedies for latent defects in their medieval ius commune clothing appear. In one case the actio redhibitoria is mentioned, but then in the context of a seller who had allegedly acted fraudulently (3.1.1.1.1), so that the remedy looked more like the remedy lying for fraud which had caused the contract to be null (dolus dans causam contractui).
In keeping with the view of the early modern scholastic scholar Vitoria that a defect in a thing can not be used to determine whether or not a seller had committed a sin, the Chancery's practice seemed to have dismissed the use of remedies for defects in the thing sold altogether. Defects in goods are either addressed with the remedy for lesion beyond moiety (3.4.1.1-3.4.4.1) or with the remedy for fraud because of a breach of a given warranty (3.3.3.1). Particularly in the sale of slaves the latter approach appeared to be preponderant.
The Chancery's case law thus chimes remarkably well with the early modern scholastic reluctance to consider selling a defective thing in itself a sin and its preference for solving questions of contractual justice by means of the concept of fairness in exchange. The former rules out a liability for a prejudice of less than half the thing's worth, if there is no fraud. The latter brings the remedy for lesion beyond moiety into the limelight. Both developments could be clearly noted in the case law of the Royal Chancery of Valladolid.
In sum, the remedies for defects in the thing sold experienced a lapse of attention in
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