Page 299 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
Though Althusius uses both the Latin formula indicating a subjective (emisset) and objective (valuisset) approach, his reference to Gómez makes a case for Klempt's assertion that Althusius has an objective price assessement in mind, since that was commonly accepted practice in early modern Castilian legal doctrine.59 Nevertheless, this does not clearly follow from neither Gomez' work nor from the context within which Althusius discusses the remedy. The only indication is that Althusius uses the verb valere, which medieval ius commune scholars who favoured the Accursian distinction believed to indicate an objective price assessment.
Pufendorf is clearer in his rejection of a subjective price assessment:
'..., some have observed that in sales the price should not be assessed by the affections of the buyer, unless there is concurrence with other factors which determine the price.60 Thus, the Roman laws do not pay heed to the price based on affection regarding restitution of damage incurred without bad faith, D. 9.2.33'61
However, there were scholars who put question marks to this approach. One of them, Barth von Harmading (fl. 1644) 62 in his disputation on the sales contract, written in 1644, rejects the idea that the just price has to be measured with an objective measure, since he is of the opinion that buyers and sellers are allowed to outwit each other.63 A logical consequence of this would be that a price reduction would also require to be measured along the line of the buyer's subjective assessment of the item. When dealing with the remedy for price reduction, Barth von Harmading indeed uses the wordings traditionally reserved for a subjective assessment.
'The action to estimate can be brought both against buyer and seller, in order that is given back for how much less the sold thing would have been bought by someone who was not ignorant of the thing's quality.'64
minoris res empta ab agente esset, qui etiam admonitus potuit pluris emere, quam res valebat. Haec
quanto minoris fuerit, unde et aestimatoria vocatur actio, l. 18, 44, h.t. \[D. 21.1.18 and 44\]'.
59 Klempt, Grundlagen, p. 29; See 3.2.2.3 and 3.3.1.2.
60 E.g. heirs are allowed to ask a price based on affection for inherited land.
61 Pufendorf, De iure naturae, 5.1.7, p. 599: '... aliqui observant, in emtione venditione non debere pretium
rei intendi ex affectu emtoris: nisi aliae causae pretium intendentes concurrant. Sicuti nec pretium affectionis leges Romanae attendi volunt in restitutione damni sine dolo malo dati, vid. l. 33, D, ad L. Aquil \[D. 9.2.33\]....'; idem, 5.1.8, p. 600: 'Enimvero in civitatibus pretia duplici modo definiuntur; uno modo per decretum superiorem, seu per legem; altero modo per communem hominum aestimationem et judicium, accedente consensu eorum, qui inter se contrahunt'; Vitriarius quotes this passage in Institutiones, 2.12.19, p. 288; cf. Becker, Die Lehre, p. 35.
62 Not much is known about this scholar. He was from Ingolstadt were he wrote a dissertation on sales under the supervision of Erasmus Pascha (1568-1643) which was published in 1644; CERL </thesaurus.cerl.org>.
63 Barth von Harmading, Disputatio, no. 41, p. 32: 'Ad substantiam emptionis et venditionis non requirimus ut pretium justum sit, utpote in quo contrahentibus sese invice circumvenire naturaliter permissum est'. Inspired by D. 19.2.22.3: Quemadmodum in emendo et vendendo naturaliter concessum est quod pluris sit minoris emere, quod minoris sit pluris vendere et ita invicem se circumscribere, ita in locationibus quoque et conductionibus iuris est.
64 Barth von Harmading, Disputatio, no. LXIX, p. 39: 'Actio aestimatoria similiter emptori adversus venditorem competit, ut quanto minoris rem venditam illius qualitatem non ignorans emisset, damnetur ei reddere'.
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