Page 460 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
9.3 Concluding remarks
From the foregoing, some general notes can be made about the development of the law which governed the situation in which things are exchanged for a sum of money but in which the thing exchanged turned out to be defective.
First, although medieval legal scholarship indeed construed a complex system of remedies for defective things exchanged, some tendencies to create a coherent law could also be observed. The ultramontani Belleperche and Revigny merged the various remedies for defects in objects as found in the Corpus iuris civilis into one set. The Accursian Gloss endeavoured to streamline the liability for encumbrances on immovables to that for defects in movables. Furthermore, almost all medieval scholars studied accepted the rule of D. 19.1.13(14)pr. that sellers aware of defects should be liable for more than sellers ignorant of them. Yet, medieval interpretations largely derived from textual analysis and the wish to solve contradictions in the Corpus iuris civilis. Considerations of practical nature or signs which underlying concepts of justice played a part in the medieval interpretations were hardly encountered in their writings. Neither did medieval scholars explain why they extended the remedy for lesion beyond moiety of C. 4.44.2 in order that it became available in almost all contracts and to all parties involved who had suffered a prejudice.
Contrariwise, Castilian early modern scholastics underpinned their views about liability for defects in things exchanged with a solid theory of justice of which the concept of commutative justice formed the backbone. Deductive argument led early modern Castilian theologians towards treating hitherto separately perceived liabilities as species of one and the same breach of fairness in exchange. Concerning themselves with the duties of contracting parties in the court of conscience (forum internum), theologians of the School of Salamanca expressed theological theories on justice in ius commune-terminology. This might have been done to provide clear guidance to those who confessed regarding what behaviour was expected of them in commercial dealings in a language they understood. As ius commune-law stood at the basis of Castile's worldly law (forum externum), the most obvious and most readily available vocabulary to express moral duties was that of civil ius commune.
Be that as it may, at around the same time at which theologians elaborated overarching theories of justice, Castilian civil law scholars likewise began to approach ius commune-law concerning defects in sold goods deductively. They disregarded specific buyer-friendly features of ius commune remedies, accepted only one, objective, determination of price, developed general rules about the scope of liability of all creditors based on fault, and equated the liability for encumbered things with that for defects in movables. First notions of a Verschuldensprinzip, according to which fraud determined a party's liability, made headway in early modern Castilian civil law doctrine, and, more markedly, in practice. Another notable development was that the ius commune-remedies based on defects in the object gave way to the remedy for lesion beyond moiety. The latter
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