Page 329 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
transfer property for whatever price that is consented to should stand. It must be considered just because it came into being as a result of bargaining between free persons. In Thomasius' view, there is no place for a third party who determines whether the agreed price is just. It amounts to an infringement of the right of men to freely bargain about a sale, and, hence, an infringement on the law of nature, when a price estimated by a third should replace a freely agreed one. By thus curtailing man's liberty, his right to self- preservation would be seriously impaired.227 To conclude, Thomasius rejects fairness in
exchange and the corresponding remedy for lesion beyond moiety.
However, Thomasius' polemic work leaves much to answer. For instance, if one of
the parties suffered from a feeble will, how and by which standard should the contract be remedied? Suppose that a sold item has a defect of which the buyer was not aware. To determine the price reduction the seller is liable for, the buyer's prejudice has to be established. However, it is difficult to see which possibilities Thomasius' theory offers to do that. After all, according to Thomasius, the defective item's just price, which he equates with whatever the buyer aware of the defect is willing to pay and the seller to receive can be any. As a consequence, buyer and seller can rightly contend two different just prices, leaving the judge without any means to cut the knot. By which standards should he determine the price both parties would have agreed on, if the thing were sound? It seems that such cannot be done without some standard lying outside the 'Appetite of contractors', as there is, for example, the market price or the price established either by experts or witnesses. It would otherwise be impossible to decide what both parties should have agreed on and, consequently, to fix the right reduction of price. Hence, Beck seems to be correct when he infers that also Thomasius can not do without an objective price standard.228
Thomasius' disqualification of the remedy for lesion beyond moiety did not meet with everyone's approval. Wolff demonstrates no signs of subscribing to Thomasius' view and traditionally equals the just price to the common market price.229 Moreover, he explains that a price can be manifestly unequal (iniquum), even when its assessment is by agreement left to a third party. Thus, Wolff shows signs of adherence to the scholastic theory of an objectively determined just price. Even a third party can miss the item's objective value.230
227 Thomasius, Dissertatio de aequitate cerebrina, c. 2, § 11, p. 51: 'Omnes enim conventiones nituntur libero contrahentium consensu. Consensus autem hic liber non foret si dependeret ab arbitrio tertii, nisi forte contrahentes libero consensu in hujus tertii aestimationem compromiserint. Nec interest sive ille tertius sit unus homo sive uno plures. 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 arbitrium plurium'; Similarly, Wolff, Ius naturae, vol. 4, § 975, p. 670: 'in emtione venditione a contrahentium unice voluntate pendet, utrum aequalitatem observare velint, nec ne'; Ahnert, 'The Case of Christian Thomasius', passim.
228 Becker, Die Lehre, p. 38.
229 Wolff, De iure naturae, vol. 4, § 1033, p. 713: 'si quis rem vendit pro justo pretio...in commune quod
tempore contractus est, consensisse intelliguntur'. Also Darjes, Martini (1726-1800) and Abicht (1762-
1816) stick to an objective price determination. See Becker, Die Lehre, p. 33 for exact references.
230 Contra Schulze, Die Laesio, p. 35. Schulze's reference to Wolff's dismissing the remedy for lesion beyond moiety, however, is unconvincing. In the passages Schulze refers to, Wolff does not discuss the
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