Page 215 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
reinterpretation so as to fit in with D. 19.1.13pr. However, neither Mudaeus or Cujas satisfactorily managed to realise that. Perhaps having seen his contemporaries struggle, Doneau maintained Fulgosius' view that the ignorant seller of encumbered immovables could not be sued, because 'the thing encumbered with a servitude or tax, we can possess no less'. Apparently, the fact that the buyer could still profit from encumbered land made a liability for a seller who could not help the burden inequitable. It was not just that the buyer could reap the profits of the land and on top of that claim damages from the seller.
The influence of early modern Castilian scholastics seemed to have percolated into the legal humanists' dealings with the remedy for lesion beyond moiety (4.3). Various scholars underpinned the remedy with an appeal to fairness in exchange.
At the same time, the concept of 'fraud in the situation itself (dolus in re ipsa)' met with humanist criticism. Oldendorp and Cujas strongly reject the view that lesion beyond moiety amounts to some sort of dolus. To both, a deviation of price alone can not be constitue dolus. Doneau turned dolus in re ipsa into error in re ipsa. Perhaps inspired by early modern Castilian scholasticism, Doneau based the remedy for lesion beyond moiety on the fact that the prejudiced party had erroneously entered into the contract. By adopting error as the constituting factor, Doneau managed to avoid the intricate discussion about what kind of fraud a prejudice of more than half the thing's price actually entailed.
The period within which the remedy for lesion beyond moiety had to be brought according to legal humanists varied from four to 30 years. Cujas favoured four years, because the remedy amounted to a restitutio in integrum. Remarkably, this periods goes against a statute in 1510, issued by Louis XII of France, which decreed a 10 year period of limitation. Cujas not necessarily heeded contemporary legal practice. Other humanists dismissed the view that
the remedy for lesion beyond moiety constituted a restitutio in
integrum. Doneau and Giphanius likened the remedy to one aimed at resolving the
contract because of non-performance. It could consequenty be brought as long as the
contractual remedy for non-performance, sc. for 30 years.
With regard to how the just price of an object should be established, humanist
scholars agreed with what had been said in medieval ius commune and early modern
Castilian civil law. The just price had to be objectively determined by experts in the field.
Dumoulin left no doubt about being influenced by early modern scholastic thought by
contending that the just price should conform to the symmetrical equality which is required
between buyer and seller.
Finally, as concerns the extension of the remedy for lesion beyond moiety, the roots
of the later French denial of the remedy to buyers and sales of movables were found with
Cujas. Buyers could not be forced to buy for too high a price. Hence, they would not need
the remedy, so Cujas observed.
Contrary to early modern Castilian civil law, legal humanism did not demonstrate a
preference for the remedy for lesion beyond moiety in order to solve sales of defective
things. It accepted the remedy as a subsidiary to the remedies for defects in the thing sold.
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