Page 148 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
scholasticism adopted the Thomist-Aristotelian concept of fairness in exchange to determine whether a seller had sinned in the court of conscience (forum internum). Legal scholars and theologians who concerned themselves with contemporary civil and canon law (the forum externum), such as Molina, used theological views on fairness in exchange to interpret C. 4.44.2 to come to a remedy which did justice to both the theological and legal views of their time. Yet, the standards they set on liability according to civil and canon law were less strict than the demands to which the seller's or buyer's conscience had to answer. In the forum externum only an enormous breach of fairness in exchange gave the seller or buyer the possibility to remedy his quandary, whereas in the forum internum the slightest deviation sufficed to invoke a duty to make restitution.
What added up to the predilection for the remedy for lesion beyond moiety is that the remedies for latent defects were less suited to transfer the early modern scholastic theory about restitution to the forum externum. As observed in the early modern commentaries to Aquinas' Summa, in the forum internum it is allowed to sell a defective thing, as long as one lowered the price in accordance with the thing's lesser worth because of the defect.314 Thus, a seller who knowingly sells a defective object does not necessarily commit a sin. As a consequence, for the commentators of Aquinas who concerned themselves with the salvation of the seller's soul the fact that the object sold suffered from a defect in itself does not provide sufficient handles to determine to what degree the seller had behaved sinfully. Civil law remedies which only take into account the defect of the thing sold, such as the aedilician remedies, are difficult to chime with this view.
Vitoria, in his commentary to Aquinas' Summa, summarizes why the just price and not the defect should be the yardstick to determine whether a sale had to be considered invalid in the forum internum:
'If a defect were to be considered a reason to hold a sale invalid, it would follow that sales would very rarely be valid, in particular in the event of sales of things which have a certain price. This follows from the fact that there is not a thing that does not have some or other defect... Moreover, if a nervous horse is sold for its just price, the seller would then be obliged to dissolve the contract, something which no one would defend'.315
Vitoria likewise points out that a defect in a thing does not inform one about the validity of the sale of it.316 Contrariwise, not restoring a deviation of the just price always constituted
314 See 3.2.2.1.
315 Vitoria, Usuros y contratos, p. 109 (tr. Zorroza): 'si el defecto fuera una razón por la que no valiera una
venta, se seguiría que muy raramente serían válidas las compraventas, especialmente en las cosas que tienen algún precio. Esto es claro porque no hay ninguna cosa que no tenga algún vicio y defecto... Además, si un caballo nervioso se vendiera en su justo precio, entonces el vendedor estaría obligado rescindir el contrato, lo cual no lo diría nadie'. .
316 Cf. Aquinas, Summa Theol., IIaIIae, q. 77, a. 3, resp., p. 152: 'Si vero vitium sit manifestum ... et si ipse propter huiusmodi vitium subtrahat quantum oportet de pretio non tenetur ad manifestandum rei'; however, the reader might wonder why Vitoria here ignores the many nuances made with regard to the buyer. E.g., a buyer who should have known about the defect, will never succeed in having the sale
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