Page 300 - 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
A departure from the firmly accepted natural law-principle that the price of a thing had to be objectively assessed needed a sound theoretical underpinning to be convincing. The main effort to provide for that came from Christian Thomasius (1655-1728)65 who wrote a dissertation 'On the chimerical equity (De aequitate cerebrina)' that supposedly governed legal science.66 The natural law scholars' predilection with an objectively assessed just price was a thorn in Thomasius' flesh. In Thomasius' view a price is agreed on by contracting parties who are bound to act in accordance with the natural law command to keep faith.67 Thomasius reasons from the nature of the contract, instead of from general principles of the law of nature, as e.g. the need to maintain fairness in exchange:68
'..., it follows easily to understand from the nature of agreements that the price of things in agreements depends only on the consensus of the agreeing or contracting parties, not on the views of a third party... No, even if a majority assesses the price differently than the contracting parties, there is no reason to restrict the contracting parties in their freedom in the sense that they have to determine the price of things in their agreement in accordance with the meaning of the majority'.69
Thomasius appears to follow a similar line of reasoning as Barth von Harmading. Parties are free to agree on whatever price, so that a correction of the contract based on an objective price assessment is out of the question. His scholar Gundling (1671-1729) has the same.70
However, other than is sometimes suggested in recent secondary literature, Thomasius' views were far from being shared by the majority of natural law scholars.71 Admittedly, Wolff reasons that fairness in exchange is a default requirement from which parties can deviate by mutual consent.72 However, Wolff also defends that basic goods must be lowly priced. The quality of being basic is an objective one which exists regardless of what price the contracting parties are willing to pay.73 Wolff furthermore holds that, if due
65 For biographical data E. Landsberg, 'Thomasius, Christian', in: ADB 38 (1894), pp. 93-102.
66 About this work: Ahnert, ‘The Case of Christian Thomasius', pp. 153 – 170.
67 Ahnert, 'The Case of Christian Thomasius', p. 160.
68 Klempt, Grundlagen, p. 47.
69 Thomasius, De aequitate cerebrina, c. III, §. XIX: '...ex natura conventionum quantumvis facile intelligitur, quod pretia rerum in conventionibus dependeant a solo consensu convenientium seu contrahentium, non ab arbitrio tertii....Quin et si plurimi pretia rerum aliter aestiment, quam contrahentes, nulla tamen ratio est, quae in statu libertatis stringat contrahentes, ut pretia rerum in conventione sua determinent secundum arbitrium plurium.'.
70 Gundling, Ius naturae, ch. XXIV, § 4. About Gundling as a follower of Thomasius': R. Lieberwirth, 'Gundling, Nicolaus Hieronymus', in: NDB 7 (1966), pp. 318-319; Becker, Die Lehre, p. 38-39.
71 Loo, Vernietiging, 85; Schulze, Die Laesio, p. 36. Where Schulze contends that D' ie Naturrechtler' subscribed to a subjective approach of determining the price of the thing sold, he fails to mention more than two; cf. Becker, Die Lehre, pp. 36-39; this flawed view of what the natural law view on the matter entailed also creeped into Langer's Laesio enormis, p. 61.
72 Wolff, Ius naturae, vol. 4, 4.4, § 975, p. 242: 'Quamobrem cum aequalitas observetur, si tantundem recipitur, quantum datur (§ 898), adeoque in emtione venditione aequalitas observata intelligitur, si verum pro re datur pretio (§ 905); in emtione venditione a contrahentium unice voluntate pendet utrum aequalitatem observare velint, nec ne'; Klempt, Grundlagen, p. 45.
73 Wolff, Ius naturae methodo, vol. 4, § 304, p. 230: 'Quoniam pretia rerum et operarum ita determinanda 294