Page 83 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILIAN LAW
scholastics.13 Consequently, if one wants to trace the history of how buyers were legally defended against defects in the things they bought in European continental law, knowledge of legal and theological developments in 16th century Castile is indispensable. As there do not exist, to my knowledge, studies of substantial depth in which it is investigated how issues concerning latent defects were dealt with in early modern Castilian doctrine and practice such will be explored here.
That the day's moral theology not only ordained how the civil law should be but actually influenced how civil law was administered in practice follows from the study of early modern reports of case law. First of all, the cases studied for this book demonstrate that theological concepts of justice determine which remedies were available in the event one had bought a defective thing.14 Moreover, the common man in Castile too defined his behaviour outside the confessor's bench in the moral terms which were used in front of a confessor. We hear Francisco de Castañero, who had allegedly sold an orchard for more than the just price, bring the defence that 'I am a good Christian, fearful of God, and by my conscience I am not prone nor used to sell... for more than the just price'.15 Hence, men tuned their behaviour in the forum externum to the demands formulated to keep a clear conscience in the forum internum.
The particular aim of this chapter is to provide insight into how the confessor's morality influenced the day's civil law both in legal doctrine as well as practice. Beside the works of legal scholars, manuscript records from cases brought before la Chancillería Real de Valladolid (the Royal Chancery of Valladolid)16, Castile's highest appellate tribunal in early modern times, offer a rare possibility to see to what extent Castilian legal doctrine and, particularly, concepts and rules formulated for the forum internum found their expression in the day's practice.
The structure of the chapter is as follows. In section 3.2, the reader not so acquainted with the legal situation in early modern Castile, is introduced to its legal sources. Section 3.2.2 focuses on theological doctrine as concerns the rules which were formulated for the forum internum. First, the scholastic foundations of these rules will be discussed. There subsequently follows a treatment of the concepts of fairness in exchange and the just price. Both are key concepts necessary for the correct understanding of the rules of liability theologians formulated for the sale of defective things or the sale of things for more than their just price.
After these preliminary sections about the context in which Castilian law developed, the following are devoted to Castilian secular law regarding latent defects (3.3) and lesion beyond moiety (3.4). In the treatment of these topics, frequent recourse will be taken to the
13 Feenstra, 'L’influence de la Scolastique', pp. 377-402; Decock, Theologians, xvii, 103, 598-600; more references in Decock&Birr, Recht und Moral, p. 80.
14 See 3.5.
15 Pl. civ., F. Alonso (f), caja 971, 7, fo. 25 (sc. 49): 'soy buen | christiano temeroso de dios y de mi con- |
sciencia y no suelo ni acostumbro | vender... | ... mas de por el justo prescio'.
16 See on this and other Castilian tribunals Kagan, Lawsuits and litigants, p. 32seq.
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