Page 67 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
bring the remedy for lesion beyond moiety. As already mentioned, the aedilician remedies could also be brought irrespective of the seller's good or bad faith. Medieval scholars held on to the interpretation that the aedilician remedies could be instituted irrespective of the seller's intentions.
Yet, medieval legal scholars have more problems with accepting a remedy in the event of lesion beyond moiety without the seller having acted fraudulently. Inspired by D. 45.1.36134, they coin a new term to justify a buyer or seller being found liable without having actively committed fraud. The simple fact that a lesion of more than half the thing's just price has occurred constitutes fraud 'in the situation itself (dolus in re ipsa)', as opposed to fraud 'on purpose (ex proposito)'.135
Bartolus, perhaps for similar reasons of unease with such an 'automatic' dolus, contends that the duped party has to prove not only the other party's bad faith, but also that he had mistakenly (errore ductus) sold or bought for too low or too high a price.136 This requirement, however, seriously weakens the plain rule of dolus in re ipsa. After all, if we follow Bartolus' view that the duped party has to prove error, the opposite party would be given a chance of escaping liability. He would be able to attempt to prove that the duped party had not erred but had wanted the prejudicial sale. If he succeeds in this proof, he would escape liability, because there was no error. Lesion beyond moiety in itself is then no longer enough to prove liability against the party who had acquired for too few or sold for too much. Objective fraud gives way to subjective fraud.137
Bartolus' theorising demonstrates how a medieval scholar struggled with the oddity of liability without subjective fraud. Eventually, the division between dolus in re ipsa and dolus ex proposito became blurred. Luca's (1614-1683) statement that in the event of prejudice of more than 2/3, something 'smelling of presumed fraud (redolentem
134 D. 45.1.36: Si quis cum cum aliter eum convenisset obligari, aliter per machinationem obligatus est, erit quidem subtilitati iuris obstrictus, sed doli exceptione uti potest; quia enim per dolum obligatus est, competit ei exceptio. Idem est, et si nullus dolus intercessit stipulantis, sed ipsa res in se dolum habet; cum enim quis petat ex ea stipulatione, hoc ipso dolo facit, quod petit.
135 Baldwin, Medieval theories, p. 30-31; gloss dolum habet to D. 45.1.36: 'Qui proprie non potest dici dolus, sed ipsa res iniqua est, ut si sine causa promiserit totum, vel pro parte stipulatus sum rem quam minus emi dimidia iusti pretii, vel da exemplum de dolo superveniente ut supra de exceptione doli, apud Celsum, § Labeo \[D. 44.4.4.7\] et l. ii, § Item quaeritur \[D. 44.4.2.4\]', in: De la Porte, Corpus iuris civilis, p. 835; Hallebeek, 'Some remarks', p. 17, 22; Grebieniow, 'Die laesio', p. 202.
136 Bartolus, Commentaria, to C. 4.44.2, no. 16, fo. 164: 'Narrari debet quod tempore venditionis res valebat tantum et quod venditor errore ductus vendidit eam pro viliori pretio'.
137 About the thin line between objective and subjective fraud in relation with the remedy for lesion beyond moiety see Grebieniow, 'Die laesio', p. 211.
53