Page 384 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
contracts, Beelaerts van Blokland continues with a string of other objections.247
First, a presumption of fraud in the event someone had received less than half the thing's just price runs counter to the rule that fraud is not presumed, but has to be proven. Secondly, it would constitute a breach of good faith, if a seller could reconsider a sale, even if he had initially on purpose assented to a very low price. Thirdly, reiterating Pufendorf's objection, the remedy does not take into account the absolute proportion of the damages incurred.248 Fourthly, because of the absolute criterion of the lesion, one guilder could make the difference between being granted the rescission of the sale or having to put up with the situation of having been prejudiced but just not enough. Fifthly, buyers would see their interests seriously impaired, if a seller could strike a quick bargain only to rescind the purchase a few years later. Finally, the remedy is more likely to engender
mutual distrust than confidence between contracting parties.249
Carel Asser (1780-1836)250, in his comparison of the Dutch and French civil codes,
remarks that one only has to cross the Dutch-Belgian southern borders to see to what a complex, unworkable set of provisions the French Code civil's abiding by the remedy had produced. Citing Thomasius, he concludes with the statement that the remedy's life had all been a result of a flawed interpretation of Diocletian's rescript.251
Yet, almost none of the arguments put forward by Beelaerts van Blokland and Asser hold water. In particular, the remedy for lesion beyond moiety is not necessarily incompatible with the sale's contract being rooted in consent, since if free consent makes a contract valid, it must necessarily follow that flawed consent impairs the contract's validity. A prejudice of more than half the thing's value can be considered as a presumption of such an error, so that the remedy to rescind because of a disproportionate price is not at all difficult to rhyme with the contractual freedom which supposedly governs the sales contract. Indeed, as observed earlier, such was the ALR's approach to the matter, which grounded the remedy for lesion beyond moiety in error. The Dutch drafters, however, failed to grasp this point or deliberately ignored it.
Other objections were already refuted in Portalis' defence of the remedy or by the Code civil's content.252 First, Beelaert van Blokland's and Asser's contention that the presumption of fraud opposes the rule that fraud has to be proven seems to confound presumption with proof. Portalis and other adherents of the remedy for lesion beyond moiety considered a prejudice of more than half the thing's just value sufficient proof of fraud. It is to opponents of the remedy to convincingly argue why such is not the case, something which Beelaerts van Blokland does not do.
The second objection against the remedy for lesion beyond moiety was rooted in the fear of leaving agreed contracts uncertain as regards their validity. This, however, is an
247 Also in Asser, Het Nederlandsch burgerlijk wetboek vergeleken, pp. 507seq.
248 See 6.3.1.
249 Handelingen Tweede Kamer 1824-1825, 28th session, 26 January 1825, pp. 211-212.
250 J. van Kuyk, 'Asser, Carel', in: NNBW, pp. 42-44.
251 Asser, Het Nederlandsch burgerlijk wetboek vergeleken, p. 511.
252 See 7.3.4.
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