Page 149 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
sinful behaviour in the forum internum.
Another feature of the remedies for latent defects considered problematic by early
modern scholastics was that these could be brought against a seller in good faith. As earlier observed, early modern theologians were not very eager to accept a duty to make restitution for someone who had in good faith sold a defective thing.317 However, for the forum internum they were willing to accept that a seller had to make restitution irrespective of his good faith, if the defect amounted to a deviation of the just price, or, expressed differently, a breach of fairness in exchange.318
The reluctance of having an unknowing seller make restitution for a defect in the thing sold and the view that such a duty does arise when, independent of the seller's knowledge, there had occurred a breach of fairness in exchange, had as a result that early modern theologians expressed the duty to make restitution or civil liability because of a latent defect in terms of a deviation of the item's just price. De la Calle, for example, when discussing the rules of civil law, explicitly argues that 'he \[the buyer\] is only prejudiced, if the defective thing is worth 10, but has been sold for 20, as if it was without defect or flaw'.319 Thus, De la Calle does not take the defect as point of departure to determine whether the buyer has a remedy, but the object's price. Molina for the forum externum likewise mentions that only in the event of lesion beyond moiety a seller in good faith can be sued and that the mere presence of a defect is not enough.320
The requirement for liability in the forum internum of a deviation of the thing's just price not only meant that theologians expressed liability for a defective object in terms of a deviation of the just price. It also engendered diverging views on the use and interpretation of the remedies for latent defects and lesion beyond moiety in the forum externum. Molina argues that 'the forum externum should be brough in line with the forum internum'.321 Now closest to the doctrine of fairness in exchange comes the remedy for lesion beyond moiety of C. 4.44.2, which consequently became the preferred remedy for defects in goods, if the prejudice caused by the defect exceeded half the thing's just price.
Indeed, García rules out the remedy for rescission merely because of a latent defect. Rescission can only be claimed in the event of lesion beyond moiety:
'We say that in the forum externum one can rescind a sale only in one case and that is when the deception exceeds half the just price. Then with a judicial decree and in no other way it is possible to rescind'.322
rescinded, even though the thing sold is defective.
317 See 3.2.2.1.
318 See 3.2.2.4.
319 De la Calle, Instrucción, fo. 21: 'Verníale daño solamente si la cosa defetuosa por razon del defeto vale
diez, la vendiesse por veynte como si no tuviesse tal defeto ni tacha'.
320 See 3.2.2.1.
321 Molina, De iustitia, vol. 2, disp. 258, no. 9: 'exteriusque forum conscientiae foro aequari deberet'; Decock,
Theologians, p. 142; idem, 'Katholische Moraltheologie', no. 13, n.p.
322 García, Tratado, vol. 1, ch. 13, p. 402: 'Dezimos que en el fuero exterior se deshaze la venta en un solo
caso, y es quando el engaño excede la metad del justo precio, entonces con decreto del juez se puede revocar y no de otra manera'.
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