Page 323 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
6.3 The end of laesio enormis?
A significant part of the previous chapters was devoted to the remedy for lesion beyond moiety which was based on a disproportionality between the price paid and the just value of the thing sold. We have seen that throughout the early modern period an extended version of the remedy developed which encroached upon the field of application of the ius commune-remedies based on a defect in the thing sold, in particular when a defect had caused a prejudice of more than half the item's just price. In early modern Castilian theology the remedy competed with those remedies in all instances of a breach of contract because of a defect in the sold object. It even drove the remedies for defects in the thing out of legal practice. The main cause for this development was that Aquinas had used the concept of fairness in exchange to express his theological views on justice. Due to the introduction of Aquinas' Summa as the main textbook in the early modern Salamancan faculty of theology, Aquinas' theory was adopted by his early modern Castilian followers who eventually caused its percolation into civil law. This section explores the role assigned by 17th and 18th century natural law scholars to the remedy for lesion beyond moiety. The answer to that question is inextricably bound up with how their thoughts about justice in contracts conformed to or conflicted with those of their Castilian forerunners.
First of all, Althusius, Grotius, Pufendorf, Wolff, Heineccius and Philipp Reinhard Vitriarius (1647-1720)193 do not question aequalitas as the foundation of contractual justice, and the aptness of the remedy for lesion beyond moiety to ensure fairness in exchange.194 Grotius, as mentioned in this chapter's introduction, reasons from a breach of fairness in exchange to determine how parties to a contract must act in accordance with justice.
'if in the circumstances an inequality arises, even if the parties have acted without fraud, for example, if there was a latent defect, this inequality must be restored. There should be taken from him who has more and be given back to him who has less, because in the contract it was or should have been proposed that both side would both hold the same amount.'195
Althusius also considers the remedy as one that gives effect to the requirement that contracts should be fair.196 Pufendorf, concentrating more on the rights that a duped party to a contract has, states that 'for him who has less, a right comes into being to demand
193 For biographical data see F. Frensdorff, 'Vitriarius, Philipp Reinhard', in: ADB, 40 (1896), p. 82.
194 Becker, Die Lehre, p. 32; contra Schulze, Die Laesio, p. 35, however, unconvincingly. See further notes
in this section.
195 Grotius, IBP, 2.12.12, p. 347: 'in re tamen deprehendatur inaequalitas, quanquam sine culpa partium,
puta quod vitium latebat, ea quoque sit resarcienda et demendum ei qui plus habet reddendumque minus habenti, quia in contractu id utrimque propositum aut fuit, aut esse debuit, ut uterque tantundem haberent...'.
196 Althusius, Dicaeologica, 1.74.37, p. 37: 'Quam ob causam emptori laeso et decepto tenetur venditor pretium restituere re vendita reddita, vel ad aequalitatem et justam aestimationem, pretium redigere et moderari, d.l. 2 \[C. 4.44.2\],...'.
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