Page 334 - 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
6.4 Remedies for latent defects vs the remedy for lesion beyond moiety
The previous section demonstrated how the preference of early modern Castilian natural law doctrine for the remedy for lesion beyond moiety as the means to restore a breach of fairness in exchange came under attack in 17th and 18th century natural law.
Though the majority of scholars studied in this chapter do not doubt the requirement of fairness in exchange in sale in itself, some do question whether the remedy for lesion beyond moiety is the appropriate method to ensure that a sale answers to justice. Pufendorf explicitly states that it 'neither is required in natural law that such an inequality exceeds half the just price'.251 In a subsequent example, Pufendorf stages a buyer of an expensive house who, though prejudiced for less than half the just price, nevertheless has to sustain substantial losses in absolute numbers. By granting him a remedy, Pufendorf illustrates that he uses other criteria to determine whether or not fairness in exchange has been breached.252 His explicit reference to the civil and aedilician remedies for latent defects surmises that Pufendorf not only considers the price of the item bought but also its quality relevant to determine whether a breach of fairness in exchange has occurred. The remedies lying for defects he finds accordingly suited to restore justice.253 Titius even more explicitly puts the remedies for latent defects and lesion beyond moiety on a par.254 This is a significant change of approach, compared with that of, for example, Vitoria. This early modern scholastic scholar rejected the idea that a lack of quality in the thing sold could cause a breach of fairness in exchange, if the price paid corresponded with the defective thing's worth.255
Domat and Pothier neither discard the requirement of fairness in exchange. Yet, they curtail the remedy for lesion beyond moiety out of commercial considerations, while at the same time extensively discussing the remedies for latent defects. Hence, the 17th and 18th century natural law approach to the law concerning defects in exchanged things no longer seems inextricably bound up with the remedy for lesion beyond moiety. Both the remedies for defects and the remedy for lesion beyond moiety are considered as suitable means to legally solve a breach of fairness in exchange.
Another attack which the remedy for lesion beyond moiety had to endure was the result of direct criticism of the concept of fairness in exchange as a requirement to which contracts in general had to answer in order to be called just. Thomasius, and, to a lesser extent, Wolff, cast doubt upon the premise that fairness in exchange should be measured by the item's objective price.256 To both scholars, a thing does not have a just price which
251 Pufendorf, De iure naturae, 5.3.9, p. 629: 'neque de iure naturae requiritur ut illa inaequalitas dimidiam partem justi pretii excedat.
252 Pufendorf, De iure naturae, 5.3.9, p. 630; for a more elaborate discussion of the example see 6.3.1.
253 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 \[D. 19.1.13pr, 1-4\], l. 1, §2, D.
de aedilit. edicto \[D. 21.1.2\]'.
254 See 6.1.1.
255 See 3.5.
256 See 6.3.2.
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