Page 104 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
García seems to explain the sale of defective goods in terms of error. He regards the sale of the bad pair of shoes as partially involuntary (involuntario).127 However, it would have made more sense to term such a sale partially illicit, as the seller still knowingly had sold a defective thing.
Be that as it may, by reasoning both from error and from dolus causam dans and dolus incidens128, García combines ius commune-theory with the scholastic view which tends to consider the purchase of defective goods in terms of error and determined that, according to whether the defect pertained to the thing's essentialia or accidentialia, the buyer could claim rescission or price reduction. According to García, if the buyer contends that the defect concerned an essential quality of the thing, the contract would all the same have to be rescinded. It does not matter for the seller's liability whether the seller had reduced the price.
In contrast, as earlier observed, other early modern scholars hold that knowingly selling a defective thing is allowed as long as the thing's price was proportionally diminished.129 Indeed, Molina agrees that, if a knowing seller lowers the price of a defective thing, he does not need to reveal the defect.130 This goes against García's view based on the doctrine of dolus causam dans and dolus incidens in which the seller can not avoid rescission by reducing the price.
Molina, however, seems to lean more towards interpreting sales of defective goods in terms of commutative justice, as explained by Aquinas. A defect in a thing diminishes the thing's value, which results in a contractual imbalance, which has to be restored. A suitable price reduction prevents such an imbalance from occurring. A buyer should suspect that a lower than usual price indicates that there is something wrong with the sold object. Therefore, he cannot contend after the sale's conclusion to have erred regarding the thing's quality.131 This approach no longer considers the solving of legal issues relating to defects as a self-standing issue to which particular rules apply, such as those which Roman law had provided for in the aedilician edict. Molina explains liability for defective goods in terms of the broad concept of error.
This development towards a liability for defects based on error, which can be observed in an embryonic stage in early modern Castilian civil law about latent defects,
127 García, Tratado, vol. 1, ch. 13, pp. 396-397: 'Pero quando el engaño no diesse causa al contracto entonces deve el engañador reparar el mal hecho con rehazer el daño que por ello se siguió al engañado, si era tal que le podía reparar, donde no se deve también revocar el contracto. La causa desto primero es porque entonces no sería del todo involuntario el contracto, si no solo en parte... como si pidiendo uno a un zapatero unos zapatos de cuero bueno y rezio, y se los diesse el otro de ruyn cuero por tanto precio quanto si fueran buenos, con restituyr la parte del precio que fue demasiada y excedía al valor de los dichos zapatos considerados con su ruyndad, se repararía el daño'.
128 Decock & Hallebeek, 'Pre-contractual duties', pp. 93-94.
129 As already noted by Aquinas, Summa Theol., IIaIIae, q. 77, art. 3.
130 Molina, De iustitia, vol. 2, disp. 353, no. 18, 22, p. 247: '22 ... Quando vitia non reddunt notabiliter minus
utilem rem ad id, ad quod emitur, non teneri venditorem illa manifestare, esto praesumat, si emptor ea agnosceret, empturum non esse talem rem. Tenetur tamen detrahere tantum de pretio, ut non excedat justum rigorosum'.
131 In keeping with the adage 'scienti non fit iniuria'.
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