Page 81 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Three. Early modern Castilian law on the remedies for defects in a thing exchanged for money
3.1 Introduction
The 16th century marked a period of Spanish military and cultural dominance on the European continent.1 New worlds, inland conquests and lucrative marriages had forged a powerful imperium reigned over by the descendants of Castillian and Aragonese noblemen. The joint kingdoms under Charles V (reigned: 1520-1558) and his son Philip II (reigned: 1556-1598) and grandson Philip III (reigned: 1598-1621) offered an environment in which academic learning and fine arts rose to brilliant heights. This also applied to the legal sciences which knew important hubs in Salamanca, Coimbra and Alcalá de Henares. However, with the peace of Westphalia (1648), Spain had to cede its pre-eminent position as European superpower to France, England and the Dutch Republic. The decline which had set in under the reign of Philip IV (reigned: 1621-1665) had its repercussions for Spain's intellectual position as well. From now on, the scholars of the Dutch Republic chose their own path, as had the English done already at an earlier stage. Accordingly, this chapter will follow in the wake of Spain's rise and decline and focus on the jurists who lived and worked from the era of los Reyes Católicos (1479-1516) until, roughly, 1648. Works that appeared after 1648 will only be discussed marginally, if necessary.
In addition to an investigation into Castilian legal scholarship on the law about latent defects and lesion beyond moiety, this chapter contains a discussion of theological thought as it developed in what is later referred to as the 'school of Salamanca'. In answer to the protestant reformation, catholic theologians used the work of Thomas of Aquinas (1225- 1274) and medieval ius commune to define rules to which the penitents should answer in order to salvage their souls in the afterlife.2 For instance, if it happened that a seller sold things for more than what was considered their just price, when and how should he as penitent restore this breach of the moral requirement of fairness in exchange?3 These and similar questions were imagined to be dealt with, via the confessor, in the forum internum, or the 'court of conscience', 'a jurisdiction over man as a spiritual being'.4
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2 3 4
The Spanish golden age is, arbitrarily, said to have begun with the conquest of Granada in 1492 and to have ended with the peace of Westphalia in 1648. F. Piétri, La España del siglo de oro, pp. 413–419; for an overview of Spain's legal history see Masferrer, Legal Traditions, passim.
Notably after the Council of Trent (1545-1563). Decock, Theologians, p. 50.
A term coined by Decock which will be fully explained in 3.2.2.2. Decock, Theologians, pp. 27.
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