Page 78 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
some encumbrances were so common that buyers could have known about them when concluding the sale. For these burdens sellers could not be held to account. All the same, a deviation of more than half the just price could involve liability, as will be summarised further below.
A similar urge to bring the seller's liability for encumbrances on immovables in line with that for movables could be sensed in the writings of De Revigny and De Castro. They even went so far as to read given warranties and, accordingly, full liability in texts where these warranties do not seem to be present. Contrariwise, Fulgosius stuck to a literal interpretation of the same texts and defended that the liability regimes for movables and immovables differ.
Besides the remedies for defects in the thing sold, buyers who had bought a defective object could bring the remedy for lesion beyond moiety, if the defect had caused a prejudice for more than half the thing's just price (2.3). Under influence of late medieval moral theology, this remedy became the vehicle for theologians such as Aquinas to express what should be considered just in contractual behaviour. Essential to the remedy laid down in C. 4.44.2 was the concept of a just price, which Aquinas could well use to skilfully explain Aristotle's views on commutative justice in ius commune- terminology. In so doing, it seems that Aquinas took his cue from legal scholarship, which had already at an earlier stage acknowledged the remedy for lesion beyond moiety as one which could be used more generally than C. 4.44.2 allows for. Though moral theologians did not accept any deviation of the just price at all, jurists allowed contracting parties to outwit each other up to half the thing's just price, Aquinas' moral colouring of the remedy for lesion beyond moiety nonetheless provided an impetus for the further elaboration of the remedy by later jurists. Eventually, it would emerge as the preferred remedy to correct breach of contract, also if the breach had been caused by a defect.
Unlike what was the case concerning the remedies for latent defects, scholars such as Bartolus and Baldus assigned a wide field of application to the remedy for lesion beyond moiety. Though medieval scholars justified the remedy in the event the party who had disproportionately benefited from a contract had not acted in bad faith with a rather opaque theory of 'fraud in the situation itself' (dolus in re ipsa), the remedy's long period of limitation, its straightforward objective method of price assessment, its applicability to lease, and its procedural clarity made it a formidable competitor to the remedies for defects in the thing sold. As already noted, the latter remedies suffered from ambiguities regarding their limitation, the calculation of price
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