Page 64 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
buyers and its application to movables was a reaction to a feared encroachment of canon law on civil law territory, if such fears were ever present in the devout civil scholars' minds at all.
Part of the answer to why from the 13th century onwards a renewed interest in the remedy for lesion beyond moiety can be identified may lie in in the concept of a just price which came with it. Medieval theologians of the time who started to link sales with moral questions, searched for leads to clarify what was, from a Christian viewpoint, morally acceptable behaviour in sales.123 Seeing an elaborate system of liability in sales waiting in the law department just around the corner of the medieval faculties of theology, its professors did not hesitate to exhaust for their own purposes what had been worked out by their colleagues in the law faculties. In turn, ius commune-scholars reworked theological viewpoints into their own theories.124
Of the medieval theologians dealing with justice in sales one of the most influential, was Saint Thomas Aquinas (1225-1274), a Dominican friar and priest. Aquinas in his Summa Theologiae uses the views of the Greek philosopher Aristotle on justice to formulate his Christian moral theology. In Aristotle's Nichomachean Ethics is written that justice was both distributive – a top-down division of wealth according to people's status – and commutative.125 The latter comprised what was considered fair behaviour in voluntary transactions between individuals, whose status was regarded as equal, no matter whether one was emperor and the other peasant or whether one was lazy and the other industrious.126 Sales is an example of such a voluntary transaction. As a consequence, sales was governed by the demand for commutative justice which postulated that a mathematical mean should be reached by which both contracting parties benefited most. Thomas expressed this mathematical mean in terms of proportionality; the value of the goods exchanged had to be in proportion.127
How could one know whether the mutual performances in transactions governed by the demands of commutative justice were in proportion? In other words, when was there fairness in exchange?128 Here the just price comes in. According to Aquinas, sales
123 Baldwin, Medieval Theories, p. 58.
124 This reciprocity between legal and theological scholarship not only holds for the remedy for lesio
enormis but for all legal issues involving moral dimensions. Aquinas' references to Roman law are legion. See the references to Digest, Institute and Codex texts in his treatment of law. Aquinas, Summa Theol., vol. 9, IIaIIae, q. 57, a. 3, p. 6, q. 58, a. 1, p. 9.
125 Sometimes also termed 'corrective'; Gordley, Origins, pp. 12-13.
126 Example cited from Albertus Magnus († 1280) by Baldwin, Medieval Theories, p. 62
127 Baldwin, Medieval Theories, p. 63
128 Decock, Theologians, pp. 507seq.
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