Page 458 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
edict. In keeping with the tendency to keep close to the text of the Corpus iuris civilis,
Cujas denied that the remedy for lesion beyond moiety was also at the disposal of buyers.
This position would eventually make it into the Code civil.
Early modern Dutch legal scholarship neither professed a preference for either
remedy. Nevertheless, a significant number of Roman-Dutch and Roman-Frisian scholars
interpreted the remedy for lesion beyond moiety in early modern scholastic fashion as a
means to safeguard fairness in exchange. Grotius' desire to form a society (appetitus
societatis)' necessitates fairness in exchange as regards the parties' performances.
Huber, Tulden and Noodt followed suit. Both doctrine and practice, as Bijnkershoek's notes
demonstrate, accepted the remedy in its extended version. In this respect, Roman-Frisian
legal scholarship appeared far removed from a 'pure' application of Justinianic Roman law.
In the various positions taken, medieval ius commune is the order of the day.
The early modern Castilian predominance of the remedy for lesion beyond moiety was also patchily adopted by 17th and 18th century natural law scholars. Admittedly, as could be expected from the propagators of early modern scholastic concepts, the majority of 17th and 18th century natural law scholars submitted views about liability for defects in things sold or leased out which were firmly rooted in the concept of fairness in exchange. Yet, the remedy for lesion beyond moiety was no longer the unrivalled champion when solving a breach of fairness in exchange. Natural law scholars considered the standard of a deviation of more than half the thing's just price as too arbitrary. Furthermore, commercial interests demanded a cautious approach as regards the remedy for rescission because of a disproportionate price. Finally, to determine whether fairness in exchange had been breached, natural law scholars considered a lack of quality in the item a similarly
suitable criterion alongside prejudice of price A dogmatically fuelled attack against the remedy for lesion beyond moiety was initiated by Thomasius. Inspired by Hobbes' natural law view, Thomasius argued that all prices should stand, if consented to under free will. Consequently, contrary to what early modern scholastics had contended and contemporary natural law scholars still defended, remedies could not take the thing's just price as point of departure for determining whether or not the contract was just. Under influence of Thomasius' learning, the remedies based on defects in the object sold again stepped into the limelight. As defects in a thing impeded buyers to exercise their free will, i.e. in determining what they wanted to spend on the thing, the presence of defects bore upon the question whether or not a contract could be considered just.
Though Thomasius' contemporaries were not impressed by his views, as chance would have it the drafters of some 18th and 19th century civil codes took Thomasius' discrediting of the remedy for lesion beyond moiety to heart. The BW 1838, Código, and BGB 1900 left the solving of sales of defective things exclusively to remedies based on the thing's quality. Its drafters had rejected the remedy for lesion beyond moiety, sometimes in very strong terms. By contrast, the ALR and ABGB kept true to their natural law
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