Page 152 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
3.6 Summary and concluding remarks
The present chapter dealt with developments in early modern Castilian law regarding sales of a thing which turned out to be defective. During the reign of los Reyes Católicos Ferdinand of Aragon and Isabel of Castile, Spain had secured military and cultural hegemony in Europe. It experienced its golden age (siglo d'oro) in the 16th century. Developments in Castilian theological and legal thinking of the time would have their impact in the rest of Europe for ages to come, so that this book cannot do without a discussion of these (3.1-2).
A significant part of the chapter was devoted to early modern scholasticism (3.2.2). At first sight, moral theology does not seem to have much to do with practical questions about sales law. However, it appeared that catholic priests and professors of theology laid the foundations for the direction which contemporary civil law governing defects in the thing sold would take. Theologians from the 'School of Salamanca' 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' in front of a confessor in order to come to terms with one's conscience. The rules and principles elaborated by theologians percolated into the 'wordly', 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.
Early modern Castilian theologians stood in the medieval scholastic tradition of which a representative was Thomas Aquinas. The further elaboration of Aquinas' views on commutative justice by early modern Castilian theologians formed a major impetus for a paradigmatic change of view about the law governing contracts in early modern Castile. A particular trait of scholasticism was its deductive reasoning. In keeping with Aquinas, early modern scholastics worked with general rules by which particular cases could be judged (3.2.2.1). A general rule important to the subject of this book is that sellers of defective things cannot sin, if they are not aware of the defect. Hence, sellers in good faith receive little attention. Another rule which influenced the law about defects in the thing sold was that a knowing seller could avoid committing sinful behaviour by lowering the price in proportion to the thing's diminished usefulness because of a latent defect.
Central to the theory of commutative justice imposed on contracts stood the belief that performances should be in balance (3.2.2.2). According to divine law, the performances in contracts should be equal, as contracts are meant to be beneficial to all parties. A breach of that equality was seen as an impediment to realise man's peaceful society and therefore considered a sin according to the heavenly jurisdiction in which everyone would in the end be held to account for his deeds. Hence, the perpetrator had to atone for such a sin in the 'court of conscience (forum internum)' in the form of restitution. The easiest way to detect a breach of this fairness in exchange was, according to theologians, to compare the performances which parties to a contract had carried out. If both performances were equivalents in terms of value, the contract was fair. In other
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