Page 330 - 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
Heineccius, similarly unimpressed by Thomasius' exhortations to dismiss early modern scholastic theory, considers an objectively assessed just price intrinsically linked with the mutual fairness of performances required in contractual obligations in which both parties have to perform. Yet, Heineccius admits that difficulties come with it. First, the method of assessing this just price is not an easy one, as it is established by convention. With that, Heineccius means that the common opinion, for example, the one expressed by the market price, determines what is to be accepted as the just price for the thing sold. Such a volatile standard inexorably brings with it all kinds of intricacies. Secondly, granting a remedy for every minor deviation of the just price would lead to a flooding of law courts, something which has to be forestalled.231 For those reasons, - repeating the awkward historical view that Roman emperors too had been reflecting on Aristotles' theory of commutative justice -, Heineccius accepts that not every lesion, but only one beyond moiety should be accepted, so as to prevent a flood of complex litigation. He obliquely remarks that
'although Thomasius wants to prove that even that rescission based on C. 4.44.2 has no footing in contractual fairness, I confess not to subscribe to his view'.232
Vitriarius' in his Institutiones likewise accepts that in principle every lesion beyond moiety qualifies as a prejudice produced liability for the seller, but that civil law limits the cases for which it actually grants a remedy to those in which the prejudiced party suffered a lesion beyond moiety.233 The lesion had to be assessed by a judge or bonus vir. Furthermore, the just price of a thing is either decreed by the state or it is the price for which a thing is commonly traded for. Parties have to agree on the price, but do not constitute its justness.234 Hence, Vitriarius too accepts an objective assessment of the just price and goes against Thomasius who holds that the contracting parties' subjective will determines whether the price is just. Vitriarius, however, adds that the just price has to be assessed in accordance with the particulars of the case, thus mixing in what Pufendorf had
remedy. Moreover, in other places in his De iure naturae Wolff gives multiple examples of why certain goods (e.g. necessities) should have a low price, i.e. should be assessed by a yardstick other than the parties' free will. Cf. Idem, vol. 4, § 304, p. 230.
231 Heineccius, Praelectiones, to Pufendorff's De officio, 1.15.4, p. 154: 'omnis laesio vel inaequalitas sit emendanda... Haec quidem ex iure naturae certa sun et in theoria facile intelligentur, sed in re publica et praxi non possunt adcurate observari; Nam 1. pretium rerum definitur plerumque non lege, sed conventione...2. interest rei publicae, ne lites in infinitum gliscant... itaque leges civilis inprimis l. 2. C. de rescind. vendit. \[C. 4.44.2\]definiunt tunc demum actioni locum fore, si alter laesus sit enormiter in negotio...'.
232 Heineccius, Praelectiones, to Pufendorff's De officio, 1.15.4, p. 154: 'quin ne aequitate quidem niti illam rescissionem contractuum ob l. 2, C. de rescind. vendit. singulari Dissertatione de aequitate cerebrina remedii ex l. 2, C. de rescind. vendit. \[C. 4.44.2\] demonstrare voluit Thomasius, quamvis eius sententiae me haud suffragari fatear'.
233 Vitriarius, Institutiones, 2.12.16, p. 286: 'Ut autem tunc demum rescindatur, quando quis laesus est ultra dimidium veri pretii, est ex iure civili, et ne nimium multiplicarentur lites, si ob quamcunque laesionem contractus rescinderentur, constitui potuit'.
234 Vitriarius, Institutiones, 2.12.19, p. 288: 'Altero per communem hominum aestimationem et judicium, accendente consensu eorum qui inter se contrahunt, et hoc vocatur commune pretium seu naturale... res tanti aestimatur, quantum pro ea communiter offerri aut dari solet'.
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