Page 385 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SEVEN
exaggerated exposition of how the remedy works out in practice. Parties can only reconsider a sale in the event of a huge prejudice, so for the majority of contracts an impending rescission is out of the question. Moreover, parties who transact a thing of high value can take legal precautions against the other party coming back on the agreement, for example, by stipulating an exoneration clause.
Thirdly, the argument that one guilder can make an intolerable difference is unconvincing, since every remedy comes with a thin line between facts which allow for the remedy and facts that do not.
The fourth objection, however, is not explicitly refuted by either Portalis or the Code civil's provisions. It has to be admitted that the limit drawn by the Code civil 7/12's is rather arbitrary and does not come to terms with the flaw that a lesion can in absolute numbers be highly prejudicial, but yet not enable the injured party to bring the remedy for lesion beyond moiety.
Against the fifth objection that parties to a contract can come back on what they agreed on, adherents to the remedy can point at the limitation to which the remedy is subjected. The possibility to reconsider an agreement is limited in time.
Finally, Beelaerts van Blokland's contention that the remedy would engender mutual distrust instead of reducing it is hard to understand. It is not difficult to imagine that someone who agrees on a disproportionate price knows that what he does is likely to harm the other party. Hence, a dubious disposition is already present irrespective of the consequences such behaviour may have. That is exactly why some early modern theologians considered lesion beyond moiety a proof of fraudulent behaviour. Furthermore, a party that knows that hard bargaining comes with a price will refrain from such actions which are not likely to be in the other party's interest.
Be that as it may, despite the feebleness of most of the arguments which were put forward during the draft's discussion, the remedy for lesion beyond moiety was denied a place in the BW 1838, as 'it would be contrary to all reasonable principles to avoid a sale for the sole reason of prejudice, without this prejudice being accompanied by fraud...'.253
253 'Het strijdt echter tegen alle gezonde beginselen, om eenen koop en verkoop voor enkele benadeeling te kunnen vernietigen, zonder dat die met bedrog is gepaard gegaan...', so according to the Dutch government. Quoted in Voorduin, Geschiedenis, vol. 5, p. 147; Hallebeek, 'De iustum pretium-leer', p. 8.
381