Page 58 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
2.3 Lesion beyond moiety (laesio enormis) 97
Justinian's codification has a rescript (C. 4.44.2) issued by Diocletian and Maximianus in
285 A.D. which provides the following:
'Emperors Diocletian's, Maximianus: If you or your father sold the land at a price below its value, it is in accordance with human nature 98 that you either should repay the price to the buyers and recover the land with the assistance of the authority of the court, or should, at the buyer's election, receive what is lacking of the just price. The price is considered too low, if not even one half of the true price has been paid (transl. Baldwin; Blume, with modifications)'.99
Hence, a seller who had sold for less than half the just price could remedy the sale by forcing the buyer to either return the land and receive the paid price or to supplement it to the land's just value. A notable exception to the generally accepted laissez faire attitude of the classical Roman jurists, as expressed in the adage that 'it is naturally permitted to parties to circumvent each other in the price of buying and selling'100, throughout legal history C. 4.44.2 would become a model for a regime in which not only the seller, but also the buyer could attack a sale on the grounds of having received or paid less or more than half or one and a half times the thing's just price. Classical Roman law had already limited the freedom of parties to outwit each other to situations in which both had acted in good faith. The presence of dolus overruled the freedom of bargaining.101 The rescript above went one step further; irrespective of dolus, a lesion beyond moiety sufficed for remedying a prejudice in sales, albeit only in the event of
97 For this paragraph I mainly relied on the works of Baldwin, Medieval theories; Schulze, Laesio enormis; Kalb, Laesio enormis, and Becker, Die Lehre. See also Grebieniow, 'Die laesio', pp. 194
98 Baldwin translates 'humane' with 'equitable', Blume with 'just', which translations, in my opinion,
provide unwarranted associations with a general theory on justice underlying the rescript. Classical Latin does not seem to allow for either translation. See Lewis&Short sub voce, 'humanus', in: A Latin dictionary; Baldwin, Medieval theories, p. 18; Blume, Annotated Justinian Code. <http://www.uwyo.edu/lawlib/blume-justinian/>.
99 C. 4.44.2: Imperatores Diocletianus, Maximianus: Rem maioris pretii si tu vel pater tuus minoris pretii, distraxit, humanum est, ut vel pretium te restituente emptoribus fundum venditum recipias auctoritate intercedente iudicis, vel, si emptor elegerit, quod deest iusto pretio recipies. Minus autem pretium esse videtur, si nec dimidia pars veri pretii soluta sit. * DIOCL. ET MAXIM. AA. AURELIO LUPO. *<A 285 PP. V K. NOV. DIOCLETIANO A. II ET ARISTOBULO CONSS.>'.
100 D. 4.4.16.4: 'Idem Pomponius ait in pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire'.
101 Baldwin, Medieval theories, p. 16, 18; Westbrook, 'Origin', p. 39. 44