Page 155 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
Influence of early modern scholastic thinking, though likely present, is similarly difficult to assess in the treatment of the remedy for lesion beyond moiety in early modern Castile's forum externum (3.4). The exact legal underpinning of rescript C. 4.44.2, which lay at the basis of the early modern remedy, had already been found problematic in medieval ius commune.
As D. 4.4.16.4 and D. 19.2.22.3 allowed parties to outwit each other, there does not seem to be any fraudulent behaviour by the seller of the land for more than half the just price. The advantageous price could simply be the result of the seller having outwitted the buyer. Hence, since the underpinning of the remedy could not be plain fraud, medieval ius commune doctrine developed the theory of 'fraud in the situation itself' (dolus in re ipsa); a deviation of half the thing's price constituted a kind of objective fraud.
However, in contrast to medieval legal scholars, early modern scholastic scholars who concerned themselves with the seller's and buyer's duties in the court of conscience (forum internum) do not use the concept of dolus in re ipsa. The seller simply has to make restitution, if a contractual imbalance occurs, regardless of whether or not he had acted fraudulently.
A similar approach already existed in Castilian statutory law from the 13th century onwards. The Siete Partidas, Ordenamiento de Alcalá, and the Nueva Recopilación likewise ignore the ius commune doctrine of dolus in re ipsa. If an item is bought for more than one and a half times its just price or is sold for less half its just price, the resulting disproportionality between performances has to be compensated. Fraud does not play any role there.
Some early modern Castilian legal scholars who wrote for the forum externum adhere to what is found in the mentioned statutes. Hevia Bolaño, Piñel and Albornoz altogether ignore the doctrine of dolus in re ipsa. A deviation of more than half the thing's just price is in itself enough to grant the prejudiced party a remedy.
Other early modern Castilian scholars preferred to work with either subjective fraud or a presumption of it. The party who had benefited from the other's lesion beyond moiety had allegedly acted with fraud. As a consequence, he could prove that the presumption of his fraud was unwarranted and so escape liability. By allowing the accused party to defend himself, early modern Castilian scholars managed to tie the remedy for lesion beyond moiety to fraud as subjective misconduct by one of the contracting parties. Thus, Padilla y Meneses also moved away from the doctrine of dolus in re ipsa and provides the remedy for lesion beyond moiety with a more subjective colouring.
The limitation period scholars who wrote for the forum externum attached to the remedy for lesion beyond moiety is no other than that which one finds in contemporary Castilian statutory law. In keeping with the Nueva Recopilación (1567), a majority of scholars limits the remedy to four years (3.4.2).
Regarding the assessment of the thing's just price, Castilian early modern civil law scholars expressed their preference for an objective standard (3.4.3), as found in D.
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