Page 283 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
practice proved rather indecisive on the matter. It may be that it concerned a point of minor importance of which scholars and practitioners did not see the need to come to a consistent interpretation. After all, the consequences of lesion beyond moiety were the same regardless of whether there had been error or fraud in the thing itself or fraud. The party who had caused the lesion had the choice between returning the thing or adjusting the price paid or received.
A majority of early modern Dutch scholars regarded the remedy for lesion beyond moiety as a civil contractual remedy which could be brought within 30 years (5.3.2). Furthermore, Roman--Dutch and Roman-Frisian scholars held that the just price had to be determined objectively (5.3.3). However, the scholars studied in this chapter did not go into details about how the price assessment should take place. It might be that in keeping with Cujas' view they considered the question one of fact. In any case, no scholars were found who dwell upon the methods to establish an item's just price.
From Bijnkershoek's Observationes it seemed to follow that the Supreme Court held the determination of the just price a question which had to be answered by experts. In one instance, the Supreme Court was unwilling to deviate from the price estimation established by a lower Court. Van den Sande ruled out the use of witnesses, which view stands in marked contrast with the practice of the Royal Chancery of Valladolid (5.3.3.1).
Finally, early modern Dutch legal doctrine accepted the ius commune-extension of the remedy for lesion beyond moiety to buyers, lease and movables. A frequently heard argument was that 'the remedy corrects a prejudice irrespective of the person who suffers it'. In this respect, Roman-Frisian legal scholarship appeared far removed from a 'pure' application of Justinianic Roman law. In the various positions taken, medieval ius commune is the order of the day (5.3.4).
The remedies for defects in the thing and lesion beyond moiety concurred in the event a defect had caused a prejudice of more than half the thing's just price. early modern Castilian scholasticism had induced contemporary civil law practice to favour the remedy for lesion beyond moiety as the most suitable remedy for similar cases. However, in legal humanism such a preference was not found, although humanist scholars rejected the subjective price determination in favour of an objective one. As a result,
just price.
the same objective
standards were used to determine a price reduction because of a defect and the object's
Early modern Dutch legal scholarship neither professed its preference for one or the
other kind of remedies, so that the picture of what a buyer who had been enormously
prejudiced because of a defect in a thing could legally do remained rather unclear. In
particular with regard to the applicable periods of limitation a peculiar situation emerged.
The buyer could either sue within one year or six months for rescission or price reduction
because of the defect, or he could bring the remedy for lesion beyond moiety for as long
as 30 years. Regarding the use of the remedies in lease, Dutch scholars expressed a
preference for the contractual remedy under lease to either an extended remedy for
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