Page 301 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
to destitution an individual agrees on a high price for a n object he desperately needs, this price is unjust (iniquum). This presupposes the existence of a price of the thing somewhere floating in the air independent of the parties' estimation of it. Consequently, Wolff corrects a subjective price determination by means of an objective one. Hence, at least under circumstances, Wolff favours an objective price assessment.74
Heinrich von Cocceji (1644-1719)75 emphasises that parties to a sale can consent to buying a defective thing but that both must know the thing's quality to be able to assess its just price. A possible second step is then that the buyer agrees to pay more than the item's quality merits against the background of the item's just price when in optima forma. This, however, has nothing to do with a subjective price determination of the thing in question, something which Cocceji implicitly concedes when using the formula for price reduction which indicates an objective price assessment.76
'However, the sale of a defective thing remains intact, because the contracting parties consented to the thing. That is, unless it was expressed that it had been sold for sound, since then consensus in the defective thing is missing. After all, a seller who knows that the thing is defective but who does not make the buyer acquainted with that fact, having thus acted in bad faith, causes that the other is deceived. Consequently, the buyer can claim either that he \[the seller\] pay a price reduction to be assessed at how much the thing was reduced in value because of the defect or he can sue for the returning of the thing, if it can not be used at all and if it is in the buyer's interest to return the thing itself. These actions thus have their origins in the natural law \[my emphasis\]'.77
Without the help of objective price standards, it is hard to imagine how the parties would ever come to an agreement about the amount of price reduction after discovering a latent defect. After all, the seller would subjectively claim that the defect does not really diminish the objec's value, whereas the buyer would likewise subjectively contend the exact opposite. As a consequence, even those who otherwise endorse Thomasius' theory only accept a subjective formation of price. They reject a subjective price as a standard to use in litigation. Heineccius also uses the terminology indicative of an objective assessment; quanti res minoris fuit while writing about the remedy for price reduction.78
Pothier in his Traité du contrat de vente contemplates that the parties determine the
sunt, ne cuiquam laborare volenti desint res minimum necessariae (§ 303) pretia rerum maxime necessarium, sine quibus nempe vita conservari nequit, ita determinanda sunt, ut eadem vilis operae pretio comparari possint'; cf. idem, § 301: 'Quodsi ergo in pretio rerum ac operarum definiendo observentur ea, quae urget lex naturae, pretium aequum est; sin minus iniquum'.
74 Cf. Wolff, Ius naturae, vol. 4, 4.4, § 905, p. 622; Schermaier, Bestimmung, pp. 277-278.
75 For biographical data see E. Döhring, 'Cocceji, Heinrich von, Freiherr von', in: NDB (1957), p. 300.
76 Contra Klempt, Grundlagen, p. 49, who does not make this distinction.
77 Cocceji, Introductio, lib. 5, cap. 2, p. 380seq.: 'Sed et emtio rei vitiosae subsistit, quia in rem consensere
contrahentes. Nisi expresse ut sana fuerit vendita, quia tunc deficit consensus in rem vitiosam. Quia autem venditor, qui scivit rem esse vitiosam, nec certiorem reddidit emtorem, facto hoc doloso causa est, quod alter deceptus sit, ideo agere emtor potest, vel aestimatoria quanti minoris, ad id ut tantum de pretio restituat quantum propter vitium res minoris facta est vel redhibitoria, si res plane uti non potest, adeoque emtoris interest rem ipsam redhiberi. Quae proinde actiones ex iure naturali originem habent'.
78 Heinecius, Elementa iuris civilis, § 913, p. 442.
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