Page 157 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
Castilian early modern legal doctrine and practice (3.5). Contrariwise, the remedy for lesion beyond moiety staged itself as the foremost remedy in the event a buyer wanted to start proceedings because of a defect in the thing he had bought. In the first place, the remedy for lesion beyond moiety as compared with the ius commune-based remedies for defects possessed some procedural advantages. Its period of limitation was longer, there was no controversy about how a price estimation had to be carried out, and it was possible to bring the remedy in lease. Yet, these features alone do not explain the remedy's success. After all, these were already present in medieval ius commune scholarship. However, medieval legal doctrine never expressed a marked preference for the remedy for lesion beyond moiety.
What may have added additional weight to the scale in favour of the remedy for lesion beyond moiety was that the remedy was the most suited answer to the day's moral demands imposed by early modern catholic moral theology. As observed, according to early modern scholastic views, knowingly selling a defective thing not necessarily constitute a sin - the seller could lower the price in accordance with its defective condition. Conversely, selling for more than one and a half times the thing's just price and not compensating the prejudiced party afterwards for most theologians always meant that the seller had sinned. Furthermore, when reading the discussions of early modern scholastics about the duty to make restitution because of a defect in a thing, one senses their uneasiness with accepting this duty for the seller who is ignorant of the defect. Contrariwise, they found it less problematic to accept a duty to make restitution for an unknowing seller when the buyer had suffered a prejudice which amounted to more than half the thing's just price.
At the beginning of this book a factual situation was set out which serves as a means of comparison.333 What legal recourse is open to B now that the thing he received turns out to be defective? When compared to medieval ius commune doctrine, according to which B had many, though intricate, legal options at his disposal, one can observe that early modern Castilian civil law presents a less complicated picture. First,
listed in the schedule below.
The early modern Castilian approach to remedying a defect in a thing in the forum internum would have its consequences for the shaping of the law about defects in the thing in subsequent ages. At a later stage, almost all of Europe fell under the spell of the requirement that contracts should be in balance in order to be fair. Grotius' appetitus
333 See 1.2.1.
the aedilician and civil
remedies are merged into one set of remedies. Furthermore, early modern Castilian
doctrine and practice generally no longer distinguish between remedies for corporeal or
non-corporeal defects. B could use the merged aedilician and civil remedies for both. If the
prejudice caused by the defect exceeded more than half the thing's just price, B could also
bring a remedy for lesion beyond moiety. As a subsidiary, B could institute the general
remedy for fraud, if he succeeded in proving A's bad faith. An overview of the remedies
available to B in early modern Castilian civil law is
145