Page 404 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CODES OF CIVIL LAW
exchange governed contracts but party autonomy, and that a remedy for rescission because of an enormous prejudice infringed on man's liberty to contract as he thought fit (7.5.4; 7.6.4; 7.7.4).
A somewhat exclusive position with regard to the acceptance of the remedy for lesion beyond moiety was taken by the Code civil. Legal doctrine in France just prior to the Code civil had already substantially limited its availability to sellers of immovables only. Though the code's main drafter Portalis volunteered a discourse imbibed with the natural law doctrine of fairness in exchange, this did not result in a restoration of the remedy for lesion beyond moiety in its former splendour. Yet, with the help of Bonaparte himself, Portalis warded off further attacks against the remedy fuelled by Thomasius' treatise and managed to keep it in the Code civil. The most notable change was that the lesion had to consist in seven twelfths instead of half the just price (7.3.4).
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