Page 154 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
favourable features (3.3.1.4).
In contrast, however, to this clear tendency to dismiss intricate ius commune
distinctions, López, Hevia Bolaño and Molina argued that the distinction between corporeal and non-corporeal defects still held in the civil law of their time (3.3.1.1). This position is, particularly in the case of Molina, hard to explain, since it goes against the Siete Partidas and the deductive reasoning used by Castilian theologians. Molina at other times manifestly adhered to both.
Early modern Castilian civil law doctrine neither demonstrated any innovative force in the discussion about whether the remedies for defects in the things sold could also be brought in other contracts than sales (3.3.2). Both Molina for the forum internum and Hevia Bolaño for the forum externum, in agreement with ius commune, rejected its extension to lease.
Neither could the influence of early modern theology be seen in the treatment of the scope of the seller's liability (3.3.3). Early modern Castilian scholasticism was ill at ease with holding a seller who was not aware of the defect in the goods he sold liable for all contractual damages. Azpilcueta, Medina and García, who all wrote for the forum internum, concentrated on the seller who had acted in bad faith. By ignoring the seller who had not been aware of the defect, they seem to reject his liability in the court of conscience. Also in the event of leaky barrels, early modern Castilian theologians thought that only a knowing seller or lessor had to account for the resulting damages.
Nonetheless, contemporary civil law doctrine held on to the medieval ius commune approach in the treatment of D. 19.1.6.4 and D. 19.2.19.1 which texts state a liability for all damages for a seller who was not aware of the defects in the barrels he had sold. López accepted the texts as exceptions to the general rule of D. 19.1.13pr. that only knowing sellers were liable for consequential loss.
Molina chose a middle road between López' ius commune approach which accepted liability for a seller in good faith and early modern scholasticism which generally rejected it. He adhered to the ius commune principle based on D. 19.1.13pr. that a knowing seller had to be held liable for more than an ignorant seller. To solve the difficulties surrounding D. 19.1.6.4, he considered the text as one in which the seller's fraud was presumed. Furthermore, the damages which had resulted of the presumed fraud had to be substantial. In doing so, Molina managed to interpret D. 19.1.6.4 in keeping with the scholastic preference to hold only sellers who had acted fraudulently liable for all damages.
The handling of the seller's liability for encumbrances on immovables by early modern Castilian legal scholars demonstrates a tendency to simplify the intricate ius commune-rules on the matter (3.3.4). López, Gómez and Piñel interpreted unruly Digest texts in accordance with D. 19.1.13pr. which states that knowing sellers are liable for more than sellers ignorant of the defect in their wares. Contemporary legal practice adopted the same rule (3.3.4.1).
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