Page 68 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
dolum praesumptum)' has to be presupposed, is telling in this respect.138
As such, the scope of the difficult concept of fraud in the situation itself as formulated in the Accursian Gloss is reduced to cases in which the prejudice runs between 1/2 and 2/3 of the just price. Nonetheless, the concept lingered on in the early modern period as the Gloss was still considered an authoritative source of law which
could not be ignored.
It is my deliberate choice to translate dolus in re ipsa with 'fraud in the situation itself' and not with the often read 'fraud in/from the thing itself'.139 Such a translation is difficult to comprehend, because the supposed fraud is not linked with the thing itself, but with the price paid for it. Suppose that an ignorant seller sells a defective thing as being in good condition and consequently causes a prejudice of more than half the thing's just price. The fraud is, in that case, not caused by the defect in the object, but by the fact that the seller sold it for too high a price. As will be demonstrated further on in this book, moral theologians accept that 'fraud' is absent, if the seller had sold the same defective thing for a lower price which corresponds with the thing's lower quality.140 Hence, the 'fraud' lies not in the thing, but in the circumstances which breach contractual fairness.
Furthermore, the word res can be translated as both movable and immovable property. Seeing that early modern French scholars who abolished the remedy for movables continue to use the term dolus in re ipsa, it can be ruled out that they interpret res as 'thing'. Besides, in many cases in which the remedy for lesion beyond moiety can be brought the object of the contract is not a thing. One might think of a contract for an undertaking or donation. Finally, the argument that in medieval legal terminology something broader was meant by res finds support in Aquinas' Summa theologiae. The theologian, who demonstrates reluctance in holding someone liable in the absence of deliberate fraud, explains that someone who unintentionally causes injustice is nonetheless liable as follows: 'then he does not do injustice in the proper and formal sense of the word (per se et formaliter), but only accidentally, as if according to the occasion he does what is unjust \[my emphasis\]'.141
138 De Luca, Theatrum veritatis, vol. 7, 2.7.27: '... excedens etiam in besse, qui juxta opinionem in Rota receptam reputatur sufficiens ad enormissimam redolentem dolum praesumptum, inductivum etiam nullitatis'. Quoted in Kalb, 'Enormissima', in: TvR, vol. 57, p. 336, note. 94. See the same article for further references to canon law scholars.
139 Baldwin, Medieval theories, p. 30.
140 Section 3.2.2.1.
141 Aquinas, Summa Theol., vol. 9, q. 59, a. 2, p. 21: 'Et ideo si aliquis faciat aliquid quod est iniustum
non intendens iniustum facere, puta cum hoc facit per ignorantiam, non existimans se iniustum facere; tunc non facit iniustum per se et formaliter loquendo, sed solum per accidens, et quasi
54