Page 456 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
treated differently than defects in movables. The French scholar Pothier certainly did so. In keeping with Accursius' position, he applied D. 19.1.13pr. about contagious cattle and rotten wood to all impairments of sold items, including encumbrances on immovables. Pothier also held that there were burdens for which the seller's liability should not be accepted, because the buyer should have been aware of them.
(5) The last topic which elicited legal debate in ius commune-doctrine and its practice throughout the early modern period concerned the use of the remedy for lesion beyond moiety (laesio enormis) as a means to remedy defects in things sold or leased which reduced the things' value by more than half. Originally, according to C. 4.44.2 and 8, this remedy came within the seller's reach in the event he had suffered a prejudice of more than half the object's just value irrespective of whether or not the prejudice was caused by a defect. The seller could claim that the buyer of the object either accepted rescission or compensated him for the difference between the object's just value and the insufficient sum actually paid. Despite the fact that C. 4.44.2 and 8 mention a prejudiced seller, medieval scholars, already at an early stage, started to also grant the buyer the possibility of disputing a sale, because of a disproportion between price paid and thing received due to a defect. Medieval moral theology probably contributed to the acceptance of an extensive version of the remedy, although it is not altogether clear whether theologians and canon lawyers were the first to assign it a wider field of application or whether they simply borrowed concepts of civil law to express their moral viewpoints. Be that as it may, leaving aside the rather opaque theory of 'fraud in the situation itself' (dolus in re ipsa), the remedy with its long period of limitation, its straightforward objective method of price assessment, its applicability to lease, and its procedural clarity made it a formidable competitor to the remedies for defects in the thing sold.
Nevertheless, the potential of the remedy for lesion beyond moiety as a suitable means to remedy contracts in which the delivered thing appeared defective was not fully realised before the 16th century, when early modern scholasticism proved a catalyst for the growing preference of the remedy for lesion beyond moiety to the aedilician and civil remedies. The remedy, which evolved around an equilibrium of performances, proved well- suited for translating the Catholic moral perception of contracts as a token of commutative justice into worldly legal terms. Catholic confessors who concerned themselves with the Christian duties of confessing parties in commercial matters expressed those duties in ius commune-terminology. The remedy for lesion beyond moiety became a vehicle to elucidate what was expected of the confessing party. Hence, an approximation of the rules which applied to the heavenly jurisdiction (forum internum), in which confessors appealed to the confessing party's moral conscience, and the worldly jurisdiction (forum externum), in which the contractual party's behaviour was judged in Court in accordance with worldly legal norms.
A result of this approximation was that interpretations of civil law became influenced by the content of the moral duties a confessing party had to answer to. One difficulty with
456