Page 457 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
which early modern Castilian theologians and legal scholars had to come to terms with was that Justinian's Corpus iuris civilis contains provisions which allow outwitting the other party in the bargaining proces (D. 4.4.16.4 and D. 19.2.22.2). These provisions do not find fault with whatever disproportion between price and thing exchanged. How could it then be explained that in the same Corpus iuris civilis a Codex text does just that? Medieval scholars had developed the theory of 'fraud in the situation itself (dolus in re ipsa)', according to which a deviation of half the thing's price constituted a kind of objective fraud. Early modern Castilian civil law scholars, however, gave dolus in re ipsa a more subjective colouring. Though they retained the terminology of 'fraud in the situation', Castilian scholars explained the concept in terms of a presumption of subjective fraud (dolus ex proposito). Thus, the seller could prove that the presumption of his fraud was unwarranted and so escape liability. This was more in keeping with the reluctance among moral theologians to hold sellers in good faith responsible for the other party's loss.
A second result of the approximation of moral and worldly duties was that legal concepts which were less apt to express moral norms, also disappeared from the worldly jurisdiction of early- modern Castile. Such seemed to have been the fate of the aedilician and civil remedies for defects in the thing sold. Theologians such as Vitoria held that selling a defective item was not necessarily a sinful act. If the seller had sold for an accordingly low price, there was no breach of his duties in the court of conscience. Again, this view rhymes with the early modern scholastic hesitation to accept a liability for defects on the seller's side without fraud.
Early modern Castile's legal practice seemed more susceptible to such deliberations than doctrine. Indeed, an investigation into the legal practice of the Royal Chancery of Valladolid, Castile's highest appellate court at the time, revealed an absence of remedies based on defects in the thing. Likewise, cases in which sellers in good faith were held liable did not surface. A study of more than 50 manuscript records of cases brought before the Chancery and executory writs it issued revealed that buyers or lessees of defective items either sued because of lesion beyond moiety or because of fraud on the seller's or lessor's side. Could it be that scholastic views had brought about the obsoleteness of remedies for defects in the thing in the case law of the Royal Chancery of Valladolid? Or was it simply the advantageous features of the remedy for lesion beyond moiety (longer limitation, plain method of price calculation, etc.) which induced plaintiffs to frame their claims in terms of a lesion. It is tempting to think that scholastic notions had percolated into civil law practice. Nevertheless, I have not been able to trace more than only circumstantial evidence to prove that hypothesis. Additional research on the topic might yield more convincing material about the effects current moral norms exercise on worldly legal practice.
Contrary to early modern Castilian civil law, legal humanism did not demonstrate a
preference for the remedy for lesion beyond moiety in order to solve sales of defective
things. It accepted the remedy as a subsidiary to the remedies based on the aedilician
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