Page 449 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CHAPTER NINE
save one's soul in the court of conscience (forum internum), where God weighed the scales and pronounced sentence about man's afterlife.
According to the demands of commutative justice, as explained in early modern Iberian scholasticism, contracts should be in balance. This meant that mutually executed performances had to be in proportion. For example, the value of the thing exchanged needed to be in proportion with the thing received. If a party found himself put at an advantage or disadvantage after the fulfilment of a contract, the party who had excessively benefited from the contract at the other's expense had to bring back the contract in proportion with what commutative justice required. In other words, contracts required fairness in exchange.
As a result of this demand of proportionality, the question whether a contract could be considered just focussed on whether the paid price was just. A defect in a thing did not necessarily mean that a disproportionality existed between price paid and thing received, since prices could be lowered in accordance with the thing's impaired condition. Hence, early modern scholastic scholars rejected remedies which took the defect in the object as means to evaluate a contract's validity.
Not long after Castile's theologians of Salamanca had incorporated the concept of fairness in exchange, Castile's legal scholars also made it part and parcel of their treatises about the law of obligations. Compared to their medieval colleagues they paid remarkably less attention to remedies for defects in things sold. The same applies even more to Castile's legal practice. Remedies based on defects are virtually absent in the case law of the Royal Chancery of Valladolid, Castile's highest appellate court in the period under investigation. The explanations of divine jurisdiction in ius commune-terminology may also have induced early modern Castilian law scholars to reject a reinterpretation of the Siete Partidas in keeping with humanist views in the majority of cases.
Sixteenth century legal humanism was characterised by an inductive approach to law and was only marginally influenced by early modern scholasticism as regards its views on the Accursian distinction. Humanist scholars resumed the discussion concerning the civil or aedilician remedies' redundancy in much the same way as their medieval predecessors had done, viz. humanists also reached their conclusions by skilfully distinguishing on the basis of an exclusive body of Roman law texts. However, there were some significant differences. Unlike medieval ius commune scholars, legal humanists read Greek and frequently referred to historical facts to underpin their interpretation.
Despite these different approaches a major branch of scholars within legal humanism known for its vilifying of medieval legal scholarship reached the same results as Accursius: the aedilician and civil remedies were distinct as regards their scope, limitation, and buyer-friendly characteristics. Only with regard to the method of computation for price reduction, did a majority of legal humanists reject the medieval view that the civil remedies were based on the buyer's subjective declarations. Personal notes from Viglius of Aytta, assessor to the Reichskammergericht, suggest that this method was also abolished in
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