Page 95 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
requirement of equality in the sales contract amount to according to Castilian scholars writing for the forum internum or externum?
The concept of equality as a requirement of just contracts is already found in Aquinas' Summa. On his turn, Aquinas had taken his cue from Aristotle. The Greek philosopher, simply referred to as 'the Philosopher' by Aquinas, posits in his Nicomachean Ethics the concept of commutative justice, 'which plays a rectifying part in transactions between man and man'.75 These transactions serve no other means than the realisation of a justified division of wealth. Commutative justice therefore forbids an outcome which is seriously detrimental to one of the contracting parties. There must be an equilibrium between what is given and received. According to Aquinas, the source from which Aristotle's commutative justice sprang is God's divine law.
'Divine law leaves nothing which is contrary to virtue unpunished, so that according to divine law it is considered illicit when equality in justice is not observed in sales. Consequently, he who has more, has to compensate him who has been damaged, if the damage incurred is significant'.76
Now how can one determine whether equality in justice or fairness in exchange has been realised? To answer this question, it must be considered whether the thing is sold for a just price. If not, there is a contractual imbalance or breach of fairness in exchange which should be restored.77 The rudiments of this reasoning are present in Aquinas' Summa.
'The quantity \[of the value\] of things which are useful to man is measured by the price paid, to which purpose money has been introduced, see Artistotle, Ethics, book V. Consequently, if the price exceeds the quantity of the value of the thing, or, the other way round, the \[quantity of the value of the\] thing exceeds the price, equality of justice ceases to exist. Hence, it is in itself unjust and illicit to sell a thing for more or to buy it for less than it is worth'.78
Early modern Castilian theologians further develop the notions of fairness in exchange and just price. Medina summarizes the theoretical underpinning of why commutative justice demands a just price in particular in the sales contract:
'Let us return to whether the profit or the thing procured through a sales contract or transaction must be returned and when. Related to that question we must first and
75 Aristotle, Metaph. 1330b-31a; Gordley, Origins, pp. 12-13.
76 Aquinas, Summa Theol., vol. 9, IIaIIae, q. 77, a.1, ad. primum, p. 148: 'Sed lex divina nihil impunitum
relinquit quod sit virtuti contrarium. Unde secundum divinam legem illicitum reputatur si in emptione et venditione non sit aequalitas iustitiae observata. Et tenetur ille qui plus habet recompensare ei qui damnificatus est, si sit notabile damnum'.
77 Decock, Theologians, p. 514.
78 Aquinas, Summa Theol., vol. 9, IIaIIae, q. 77, a. 1, resp., p. 147: 'Quantitas autem rerum quae in usum
hominis veniunt mensuratur secundum pretium datum: ad quod est inventum numisma ut dicitur in V. Ethic. Et ideo, si vel pretium excedat quantitatem valoris rei, vel e converso, res excedat pretium, tolletur iustitiae aequalitas. Et ideo carius vendere aut vilius emere rem quam valeat est secundum se iniustum et illicitum'.
83