Page 298 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SEVENTEENTH AND EIGHTEENTH CENTURY NATURAL LAW 6.2.1.3 Assessment of price reduction
Since the earliest days of ius commune-scholarship, it was debated whether the price reduction which the seller owed the buyer because of a latent defect should be subjectively or objectively determined. Due to their beautiful art of distinguishing, medieval ius commune scholars found both methods to be present in the Corpus iuris civilis. However, from the 16th century onwards, the majority view in legal doctrine moved toward discarding this Accursian distinction in favour of only one objective method of assessment.55 With the introduction of early modern Castilian scholastic theory into the ius commune environment, this development was only strengthened. Yet, the reasons for Castilian scholastics to favour an objective price assessment differed from those of humanist and Castilian jurists versed in ius commune civil law, who used arguments based on the texts in the Corpus iuris civilis and on the legal context within which buyers had to bring their claim. Early modern scholastic theory, however, considered the just price as the pivot around which the discussions about price reduction assessment revolved. Most of the scholastically inspired Castilian jurists held that this just price had to be measured by objective standards. They frequently equated it with the common market price current at the time of the sales' conclusion. No one would ever be an impartial judge in his own cause and since scholastic theory was built on the assumption that contractual fairness had to be preserved to safeguard one's own conscience, it stood to reason to reject a subjective assessment of price.56
Seeing their indebtedness to Castilian scholastic thinking, it may not come as a surprise that 17th and 18th century natural law scholars followed suit. Nonetheless, in Althusius' and Grotius' writings, the objective approach is only somewhat hesitatingly accepted. Althusius, similar to Grotius57, uses both formula indicating a subjective and an objective value interchangeably, without giving a sign of awareness of what goes behind:
'The obligatio aestimatoria is an obligation by which a deliverer is liable to grant the recipient a price reduction consisting of how much less the thing is worth or how much less he \[the recipient, NdB\] would have bought or accepted it, had he \[the recipient, NdB\] been aware of the thing's quality, encumbrance or defect, D. 21.1.6.14, Gomez, Variarumque resolutionum, 2.2.49.58'
750; Stryk, Usus modernus, ad D. 21.1, § 6, p. 680: 'Vitia de quibus aediles edicunt, corporis regulariter esse debent, non animi...'; Titius, Iuris privati, 4.20.5, p. 563; Johann Conrad Sigismund Topp (praes.), Georg August Topp, De actione redhibitoria (diss. 1753), § 11.
55 See 3.3.1.2 (Castilian law), 4.2.1.2 (humanism), and 5.2.1.2 (early modern Dutch law).
56 See 3.2.2.3.
57 Grotius, Inleidinge, 3.15.7: 'the buyer can either choose to to return the thing and claim his money or to
keep the thing and sue for how less much he would have been buyer of the thing or, if he thinks fit, for how much less the thing would have been really worth (....dan of hy wil de zaeck behoudende eisschen wedergeving zulckes deels des koopsgelds, als hy de zaeck minder zoude hebben ghekocht, ofte zoo hy wil, zulckes deels als de zaeck inder daed minder waerdig was)'.
58 Gómez, Commentariorum, tome 2.2.49, p. 236. Althusius' reference is inaccurate. Gomez does not discuss the formulas coming with the remedy for price reduction on that place; Althusius, Dicaeologica, 1.35.17, p. 259: 'Obligatio aestimatoria est, qua tradens accipienti, ad pretii exonerationem tenetur, ut quanto minoris res valuisset vel ille emisset, vel accepisset, sciens rei qualitatem onus vel defectum, ..., l. 1, § 6, l. 14 de ad. ed. Gomes. var. resol. lib. 2, c. 2, n. 49...' \[my emphasis\]; Meier plainly speaks in favour of Accursius´ distinction, cf. Meier, Collegium, ad D. 21.1, no. 35, p. 1202: '... 2) illa petit quanto
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