Page 82 - 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
Theologians from the 'School of Salamanca' such as Francisco de Vitoria (1483/1492- 1546)5, Domingo de Soto (1494/5-1560)6 and Francisco Suárez (1548-1617)7, wrote extensively on questions pertaining to sales and the mutual obligations of buyers and sellers with regard to the object sold in the forum internum, the jurisdiction in which one 'accuses himself'8 in front of a confessor in order to come to terms with one's conscience. They explored the rights and wrongs of all behaviour in which man took part, which included entering into and carrying out contracts.9
When one reads their arguments, not only does it surprise how thoroughly the topics were explored, but also that Aquinas’ 13th century theory of natural law provides the backbone of the answers which are formulated to the day’s legal moral dilemmas in trade practice.10
As a result of this intermingling of theological thought and legal doctrine and practice, early modern Castilian sales law gained new depths. Indeed, the rules and principles theologians elaborated for the forum internum percolated into the 'worldly', that is, the ecclesiastic and secular, jurisdictions (forum externum) where one did not 'accuse' oneself, but where one could be sued by others seeking justice.11 By the latter are meant the ecclesiastical courts in which canon law was applied in cases touching on church prerogatives. The other half of the forum externum, consists of the secular courts in which judges applied civil ius commune and local customary or statutory law in cases between ordinary citizens. In 16th century Castile both jurisdictions adopted theological concepts initially developed for confessional practice. Rules formulated for the forum internum were merged with medieval ius commune. This new amalgamation was consequently applied to wordly matters under dispute. Illustrative is Luis de Molina's (1535-1600) remark that 'the things in civil law... about... , unnamed and named contracts, more subtly than usefully invented and introduced by a heathen people, should be abolished... and the forum externum should be brought into line with the forum internum'.12 Catholic morality steered the direction the law of defects was going to take in early modern Castilian law.
The conceptual results of this encounter of theology and law were later exported to other parts of Europe, albeit in an abstracted, secularised version. Natural law scholars, such as Grotius, Pufendorf and Thomasius were to a high degree inspired by early modern
5
6
7
9
quo otro le pide su derecho, hora sea ante el juez seglar, hora ante el Ecclesiastico'.
12 Molina, De iustitia, vol. 2, disp. 258, no. 9, p. 16: 'quae de... contractibus innominatis et nominatis subtiliter potius quam utiliter de iure civili ab ethnicis hominibus inventa atque introducta sunt aboleri
deberent,... exteriusque forum conscientiae foro aequari deberet'; Decock, Theologians, p. 125; for biographical details see F. Gómez Camacho, 'Molina, Luis de', in: DBE, vol. 35, p. 414-417.
 For biographical details see R. Hernández Martín, 'Vitoria Compludo, Francisco de', in: DBE, vol. 50, p. 308-314.
For biographical details see M. del Pilar Cuesta Domingo, 'Soto, Domingo de', in: DBE, vol. 47, p. 178- 182.
For biographical details see S. Rábade Romeo, 'Suárez, Francisco', in: DBE, vol. 47, p. 340-343.
8 Albornoz, Arte, fo. 66v \[F, left column\]: 'Fuero judicial llamo donde la parte no se acusa a si mismo, sino
quo otro le pide su derecho, hora sea ante el juez seglar, hora ante el Ecclesiastico'.
Decock, Theologians, p. 27: 'a juristic notion of conscience'.
10 Decock, Theologians, pp. 49seq.
11 Albornoz, Arte, fo. 66v \[F, left column\]: 'Fuero judicial llamo donde la parte no se acusa a si mismo, sino
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