Page 378 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
current of his time.208 However, Schulze's contention that the ABGB's drafters could not make up their mind to follow natural law reasoning is based on too narrow a view of what natural law theory entailed. Thomasius was only one natural law scholar who had argued against the remedy for lesion beyond moiety. Many others embraced it.209 It can, therefore, just as easily be defended that Zeiller followed natural law theory in an even stricter sense than the drafters of other civil codes who limited or abolished the remedy for lesion beyond moiety. After all, natural equity ordained fairness in exchange in commutative contracts of all kinds.210 Consequently, every breach, however small, should produce a remedy irrespective of which party in the contract had suffered harm, of what sum of money was involved and of what kind of thing the contract concerned. Only practical demands lead scholars, such as Portalis, to compromise the workings of natural equity and limit the remedy's scope of application.
Zeiller, however, did not subscribe to curbing the remedy in such a manner. In the ABGB it could be brought by both buyer and seller, in almost all transactions in which both parties have to perform and for both movables and immovables.211 Nevertheless, the ABGB condones a lesion beyond moiety by either buyer or seller, if the contracting party had been willing to acquire or dispose of a thing because of a special interest. For instance, the buyer of land adjacent to his factory cannot contend to have been duped for more than half the just price, if his wish to expand his industrial activities had him deliberately agree on such a higher price. Similar instances of special interest and a willingness to pay dearly must be made known explicitly by the buyer; they are not to be presumed by the seller.212
7.4.4.1 Presumption of fraud
According to Zeiller, lesion beyond moiety is not a species of fraud. Zeiller writes that a seller or buyer who finds himself prejudiced for more than half a just price is likely to have contributed to his own quandary. Most of the time, Zeiller believes, the prejudice will be the result of the buyer's or seller's careless attitude (unvorsichtiges Benehmen), who, for that reason, has to bear part of the burden himself.213 Thus, Zeiller overturns the presumption of fraud into a presumption of some sort of contributory negligence; the damaged party is most likely himself to blame for the predicament he finds himself in after the contract's conclusion.
208 Schulze, Die laesio, p. 102: 'konnten sich diese nicht dazu entschliessen, den in jenen deutlich werdenden naturrechtlichen Überlegungen zu folgen'.
209 See 6.3.2.
210 As acknowledged by Zeiller, Commentar, vol. 3.2, to § 923, p. 121: 'Den in entgeldlichen Verträgen
beabsichtiget man Gleichheit des Werthes der zu vertauschenden Gegenstände'.
211 Zeiller, Commentar, vol. 3.1, p. 141-144.
212 § 935 ABGB; Cf. Zeiller, Commentar, vol. 3.1, p. 141-146; Nippel, Erläuterung, vol. 6, p. 201.
213 Zeiller, Commentar, vol. 3.1, p. 143: 'Dass der Verkürzte (ausser dem Falle eines Betruges, § 874) auch
die von dem andern in der Zwischenzeit unverhältnissmässig gezogenen Nutzungen oder Zinsen zurück fordern könne, sagt das Gesetz nicht; es ist nicht unbillig, dass er, indem ihm, wenn nicht immer, doch in den meisten Fällen ein unvorsichtiges Benehmen zur Last fällt, einen Theil seines Verschuldens übernehme (§ 1304)'.
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