Page 339 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
rejected it. People would be frightened off from engaging in commerce when contracts could easily be annulled (6.3.1).
The heaviest criticism the remedy for lesion beyond moiety in its early modern outlook had to endure was vented by Thomasius. He tried to cut to the heart of it by attacking its underlying theory that fairness in exchange should be required in contracts (6.3.2). Inspired by Hobbes' natural law view, Thomasius defended that whatever price was consented to should stand. However, as Thomasius did not properly explain how an alternative remedy to the remedy based on objective criteria could be applied, most of his contemporaries dismissed his theory. Yet, they acknowledged that the remedy for lesion beyond moiety was not in every aspect the ideal measure that could correct unfair contracts.
One thing and another lead to restoring the balance of remedies for defects and the remedy for lesion beyond moiety as a suitable means with which to address sales of a defective object (6.4). In the first place, Thomasius' theory favoured the remedies based on the object's quality. As defects hindered buying parties in the exercising of their free will, the presence of defects in the thing sold bore upon the question whether or not a contract could be considered just in the Thomasian sense. Consequently, civil law could not do without remedies to goad sellers into revealing defects in the thing sold. Yet, it remained unclear how Thomasius could do without an objective standard in the event a price reduction had to be determined by a judge.
Of more consequence was that 17th and 18th century natural law scholars dared to question the rationale of the remedy for lesion beyond moiety against the backdrop of fairness in exchange. Pufendorf's deprecatory statement that C. 4.44.2 'is merely a provision of positive law' combined with Thomasius' half-hearted rejection of fairness in exchange proved a catalyst for voices arguing for the abolition of the remedy for lesion beyond moiety in the future national civil codes. These will be the subject of the next chapter.
At the beginning of this volume a factual situation was formulated to serve as a means of comparison.258 What legal possibilities are available to B now that the thing he received turns out to be defective?
From the schedule below one thing immediately become clear from the indications in red. The tendency already present in early modern Castilian scholasticism to reason deductively is carried further among 17th and 18th century natural law scholars. In the main, these scholars reason from fairness in exchange in order to describe how a sale of a defective thing can be remedied in the worldly jurisdiction. Similar to early modern scholastics who wrote for the court of conscience, most scholars studied in the present chapter explain, accept or reject the Roman law-remedies for defects in sold goods by reference to commutative justice which required equivalent performances. More in particular, 17th and 18th century natural law scholars abolished the distinction between
258 See 1.2.1.
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