Page 270 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
the remedy for lesion beyond moiety. Though the remedy was of no avail to the buyer, it is again made clear how its acceptance was established. A deviation of more than half the thing's price266 constituted dolus in re ipsa for which a remedy lay.267
5.3.1 Presumption of fraud
When it comes to dogmatically underpinning the remedy for lesion beyond moiety by Dutch legal scholars, two positions can be identified: (1) error, and (2) dolus in re ipsa.
Tulden considers the remedy for lesion beyond moiety as a remedy that succours a party who has erroneously entered into a contract. This can be gathered from the fact that Tulden withholds the remedy from parties who had consented to the sale for a disproportionate price. A contrario, he grants the remedy to parties who had not consented to buying or selling for too high or too low a price, in other words, to parties who had acted in error.268
Grotius mentions that the remedy does not make the contract null in its entirety. 'The sale does not lose its entire validity but only part of it, because the other party has the choice either to rescind the sale in its entirety or to compensate for the lesion'.269 We have already seen this position defended by early modern Castilian scholastics.270
Later Roman-Dutch and Roman-Frisian scholars either opt for understanding the remedy as one for error or as a measure to counter fraud (dolus). Of the first, Vinnius considers the remedy for lesion beyond moiety one that is not related to dolus, 'since dolus is not grounded in the height of the price, but in the quality of behaviour, as in C. 4.44.8'.271 In an exposé to a large degree taken from Tulden, Vinnius seems to lean towards seeing the remedy as a measure to correct error.272 Noodt takes the same view. In the event of lesion beyond moiety it is 'as if there had not been consented to such a lesion, because the true price was not understood'.273 Van Eck seems to be of the same opinion when he states that a sale can be rescinded because of lesion beyond moiety 'also if fraud or fear are absent'.274 Schorer mentions that a larger than enormous prejudice (laesio enormissima) equals fraud. This seems to mean that he does not regard lesion beyond
266 By Zacharias Huber termed duplum. Zacharias Huber, Observationes, vol. 1, obs. 7, p. 29: 'nisi tam immodica sit laesio, ut excedat duplum sive alterum tantum veri pretii. Tunc enim, quia res ipsa in se dolum habet, propria Constitutione rescinditur emptio, l. 2. C. de resc. vend.
267 Huber, Rechts-geleertheyt, 3.4.7, p. 360; Zacharias Huber, Observationes, obs. 7, p. 29.
268 Tulden, Commentarius, to C. 4.44, no. 4, p. 230: 'Nam fundatur \[sc. C. 4.44.2\] in iniuria sive iniquitate
quae nulla est contra scientem et consentientem'.
269 Grotius, Inleidinge, 3.52.1, p. 773: 'waardoor de verbintenisse niet in' t geheel krachteloos word gemaakt,
maar ten deele; om dat het in de keur van den anderen staat, de heele verbintenis te laten varen, of de
verkorting te vergoeden'.
270 See 3.4.1.
271 Vinnius, Quaestiones, 1.56, p. 253: 'quippe cum non ex quantitate pretii, sed ex qualitate facti dolus
aestimetur, l. dolus emptoris, 8, C. eod. tit.'; cf. Cujas' view in section 4.3.1.
272 Vinnius, Quaestiones, 1.56, p. 255: 'Fundatur \[sc. C. 4.44.2\] tamen in iniuria sive iniquitate quae nulla est
contra scientem et consentientem, l. nemo, 145, ff. de reg. iur \[D. 50.17.145\]'.
273 Noodt, Opera omnia, vol. 2, to D. 18.5, p. 410 \[top right column\]: 'quasi in tale damnum non fuerit
consensum, non intellecto vero pretio'.
274 Van Eck, Principia, vol. 1, D. 18.5, no. 10, p. 460: 'etiamsi dolus metusque abfuerit, l. 2, C. h. \[C. 4.44.2\]'.
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