Page 325 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
exchange. After all, the seller could have lowered the price accordingly. Furthermore, early modern scholastic theory demanded an objective standard to determine whether or not fairness in exchange had been breached. The remedy for lesion beyond moiety could easily be brought in line with that demand because it evolved around a deviation of price. Finally, a lesion beyond moiety enabled scholars to presume fraud and thus condone a remedy against a seller who had not been proven to be of bad faith. When it came to granting a remedy against a seller in good faith, the concept of dolus in re ipsa was more to the palate of the Castilian natural law theologians, who only reluctantly granted remedies against sellers in good faith solely on the basis of the presence of a defect.203
Yet, contrary to all these deliberations, later natural law scholars no longer think it self- evident that the proper way to solve a breach of fairness in exchange in sale was with the remedy for lesion beyond moiety. A first indication that they no longer did so is that both Grotius and Pufendorf also paid attention to the aedilician and civil remedies for defects as equally sound means with which to repair a contractual imbalance. It was earlier observed that Grotius already considered those to be valid remedies in his Inleidinge.204 Pufendorf explicitly refers to D. 21.1.2 and D. 19.1.13.1-4, which contain remedies for defects, as examples of Roman law in which a breach of fairness in exchange is remedied.205 Although Pufendorf also mentions the remedy for lesion beyond moiety in C. 4.44.2 as a means to do the same, he does not favour it over the others. Where does this lack of enthusiasm for the remedy for lesion beyond moiety come from?
Pufendorf believes that the criterion of being prejudiced for more than half the thing's just price is more or less randomly chosen by Roman jurists. In the words of Pufendorf, this rule in C. 4.44.2 misses a sound rationale.206 Whether a lesion is grave enough to justify compensation should not depend on the infortunate standard of a fixed devation of the just price as it was introduced by the Codex text.
'neither is it required by natural law that such an inequality exceeds half the just price. After all, the famous law C. 4.44.2... is merely a provision of positive law and above all backed by the reasoning that no tribunal will suffice in settling cases, if on the ground of whatever small lesion the praetor could be sought after... Since in whatever manner the praetor must not be tired by cases of minor importance. Yet, there is no reason why he would want to refuse his help where someone has been badly prejudiced, even though the lesion is less than half. For example, if I sell a house that was 900 for 600, why is all legal help to claim back 300 denied to me, while a remedy is given for far less? Hence it is that among those who are governed solely by the law of nature and the people, a small lesion does not give cause to rescission or litigation, if there is no fraud by one of the contracting parties. Likewise, where the lesion is bigger but does not amount to more than half the just price, it is rightly demanded that the contract be
203 See 3.5.
204 See 6.2.1.
205 Pufendorf, De iure naturae, 5.3.9, p. 629: 'inaequalitas... corrigenda sit, et demendum ei qui plus habet,
addendumque minus habenti. Add. l. 13, princ. §1, 2, 3, 4, D. de act. emti, l. 1, §2, D. de aedilit. edicto'.
206 Klempt, Grundlagen, p. 42.
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