Page 335 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
exists irrespective of what the parties are willing to agree on concerning the item's worth. The latter is solely determined by what the parties are willing to pay and receive for their payment.
As a consequence, Thomasius discards the remedy for lesion beyond moiety as being contrary to natural law. Contracting parties would never want a contract which can afterwards be rescinded on grounds which the parties have not agreed on. Nevertheless, Thomasius opines that in sales defects in things should be revealed. However, this is not because fairness in exchange so dictates but to enable the buyer to rightly determine what he or she is willing to give for the object in question and thus to establish his free will. Free consent became the yardstick by which a contract's fairness had to be established257
A consequence of this point of view is that the aedilician remedies again step into the limelight. The presence of defects influences the buying party in the exercise of his free will and consequently bears upon the question whether or not a contract should be considered just. A buyer who succeeds in proving that the thing he had bought suffered from a latent defect, has strong proof of his having unwillingly entered into the contract. The contract can then be repaired by removing the cause of his flawed consent either through lowering the item's price in accordance with its defectiveness or by rescinding the sale, if the buyer would never have bought the thing in defective condition.
Thomasius' rebuttal of fairness in exchange would have its effects when national lawgivers began drafting their civil codes. In the next chapter we will see that the position the aedilician remedies would occupy in the various codifications alternates in importance with the remedy for lesion beyond moiety. The two acting as communicating vessels, the extent of their incorporation into the civil codes would largely depend on what strand of natural law reasoning drafters were inclined to follow.
257 Thomasius, Dissertatio de aequitate cerebrina, c. 2, § 35, p. 66: 'Et quamvis alteruter contrahentium obligatus sit in his contractibus alteri aperire vitia rei sibi cognita...'. Thomasius' theory was favourably received by Darjes, a student of his. See Instititutiones iurisprudentiae universalis, § 484; cf. Schulze, Die Laesio, p. 64. Schulze's reference to Hugo, Lehrbuch des Naturrechts, § 283 is less convincing. Hugo does not mention laesio enormis anywhere in the referred passage, so that it can not be contended that he disqualified the remedy for lesion beyond moiety for the reason that a just price would be difficult to establish.
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