Page 174 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
standards. Among the arguments I would like to discuss here, the first is that otherwise the price reduction would boil down to the other party having to pay all the buyer's damages.66 Viglius believes that a buyer would set his subjective price estimation as low as to cover all the damages he had incurred because of the defect in the thing or land sold. In other words, he would equal the price reduction the seller owed him to his entire interest.67
Another argument against a subjective price estimation touches upon what has already been discussed above. According to the medieval scholar De Castro, to whom Viglius refers, a subjective price must be assessed by having the buyer declare under oath what he thinks the bought thing is worth.68 However, as we learned in Mudaeus' treatise on contracts, such an oath is never granted against a party in good faith. Viglius makes exactly the same objection. Drawing support from Bartolus, he puts forward that, as a rule, an oath can only be taken against a party in bad faith or against one who had acted in contempt of court.69 The conclusion Viglius infers from this is that a subjective price estimation which turns out higher than the thing's objective price should be reduced in accordance with the latter. After all, the tenability of a subjective claim can never be proven, because oaths against a seller in good faith are not allowed.
Conversely, an objective claim can be defended by referring to the thing's current market price. Vigilius furthermore endorses the Gloss to D. 35.2.63 that the price reduction should not be based on one's personal feelings to the item, but on man's common estimation of it. This boils down to the thing's current market price or what it can commonly be sold for.70 Though Viglius terms this the 'reasoning of the ancients' it is more likely that his choice here is inspired by early modern scholastic views about what constitutes a fair price, which was taken up by humanist scholarship.71 After all, many medieval scholars believed that a subjective price assessment also formed part of the Ancient's legal legacy.
A last thing worth mention here is that Viglius also defends the view already expressed by De Belleperche and Mudaeus that there is no difference between the expressions quanto minoris empturus and quanto minoris res valet. There is no support in
66 Viglius in total produces nine arguments against a subjective price estimation.
67 Sprenger, 'De actio quanti minoris', p. 145, fo. 58v, lines 6-7: 'Quanti enim sua interesse putavit tanto
minoris se empturum fuisse dicet'.
68 Sprenger, 'De actio quanti minoris', p. 146, fo. 59r, lines 17-24: 'Certe ego nullum reperio doctorem qui
clarius loquitur quam Paulus de Castro in d. l. Iulianus \[D. 19.1.13pr.\] qui dicit quod in probatione huius singularis precii quanto ipse minoris, scilicet erat empturus, stabitur iuramento emptoris, cum aliter de hoc non possit constare. Et sic est speciale quod hic contra non dolosum fiat probatio irregularis per iuramentum, contra notata in l. Numis \[D. 12.3.3\] et in l. In actionibus, ff. De in litem iurando \[D. 12.3.5pr.\].
69 Sprenger, 'De actio quanti minoris', p. 147, fo. 59r, lines 32-35: 'Et regulariter non datur iuramentum in litem nisi contra dolosum et contumacem, glo. in l. semper, § hoc interdictum, ff, Quod vi aut clam \[gloss iuraverit to D. 43.24.15.3\], Bar. in l. in actionibus, ff., De in litem iurando \[Bartolus, Commentaria, to D. 12.3.5, no. 5, p. 39\].
70 Sprenger, 'De actio quanti minoris', p. 149, fo. 60v, lines 11-17: 'Tertio est ratio etiam veterum, scilicet quod verisimile est tanti quemque rem emere, quanti valet in communi aestimationem, l. precia rerum, ad l. Falcidiam \[D. 35.2.63pr.\], si servum, ad l. Aquiliam, ff. \[D. 9.2.33pr.\]. Et res tanti estimanda est, quanti vendi communiter potest, l. si quis uxori, §fin, ff. De furt. \[D. 47.2.52\]. Tanti ergo et ille censebitur fuisse empturus, quanti communiter quilibet alius'.
71 See 3.2.2.3.
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