Page 86 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
applied in practice, the following contain provisions about the law of latent defects and lesion beyond moiety. The Fuero Real (ca. 1250), the Siete Partidas (1254-1265), the Ordenamiento de Alcalá (1348), the Nueva Recopilación (1567), and the Novísima Recopilación (1805).22 The 'model' fuero, the Fuero Real, accepts the remedy in sales, albeit for sellers only.23 It was not before the Siete Partidas (SP), that ius commune fully found its way into Castilians statutory law. This statute contains both remedies for latent defects as well as the remedy for lesion beyond moiety in an extended version.24 In Castile, all these remedies were there to stay, either in the Nueva Recopilación (1506) and the Novísima Recopilación (1805) – as far as it concerns the remedy for lesion beyond moiety – , or as provisions in the Siete Partidas which kept their force as subsidiary law until the promulgation of Spain's Código civil in 1889.25 As a result, buyers of defective slaves and cattle could under circumstances bring both the remedies for defects and the remedy for lesion beyond moiety. One of the topics in this chapter will consequently be how Castilian law coped with this seeming concurrence of remedies.26
The doctrinal writings the reader versed in legal history will encounter in this part of the book are of a somewhat different character than might have been expected. In keeping with the view that theological thinking exercised significant influence on how Castilian sales law eventually took shape, not only the works of writers on legal doctrine but also of those writing on theologically just behaviour will be discussed. Next to the legal works by, amongst others, Antonio Gómez (ca. 1500-1561)27 and Diego de Covarrubias y Leyva (1512-1577)28 the moral views expounded by, to name a few significant authors, Vitoria, Juan de Medina (1490-1546)29 and Soto are explored for their content on the law of latent defects and lesion beyond moiety.
3.2.1.1 Case law from the Royal Chancery of Valladolid
The third legal source studied in this chapter is Castilian case law. Throughout the various sections, it will be investigated how and to what extent legal doctrine was put into practice by means of manuscript records of Castile's highest appellate Court in the early modern
22 The Fuero Juzgo (ca. 1200) was based on the Visigoth Liber iudiciorum. It favours a sales law in which a contract of sale can only be rescinded in the event of a limited number of latent defects. Furthermore, it rules out the possibility to rescind a sale because of lesion beyond moiety. See FJ 5.4.7, in: Los códigos españoles, vol. 1, p. 143; See Tomas y Valiente, Manual, p. 162
23 FR 3.10.5seq., in: Los códigos españoles, vol. 1, p. 388: Ningun home no pueda desfacer vendida que haga \[my emphasis\].
24 SP 5.5.56, (lesion) 63-65 (latent defects), in: Los códigos, vol. 3, pp. 631-632; The remedies for latent defects are later in Castilian legal doctrine applied to all things, movables as well as immovables. See Hevia Bolaño, Laberinto, 1.13.9, p. 146: '... tambien por bienes muebles o semovientes, como esclavos, animales, mercaderias, paños, libros y otras cosas semejantes...'.
25 Novísima Recopilación 10.1.2 ( = Nueva Recopilacíon 5.11.1, 6), in: Los códigos,vol. 9, p. 304; these statutes do not contain remedies for latent defects.
26 See 3.5.
27 For biographical details see S. De Dios de Dios, 'Gómez, Antonio', in: DBE, vol. 23, p. 279.
28 For biographical details see L. Pereña Vicente, 'Covarrubias y Leyva, Diego de', in: DBE, vol. 15, p. 106-
112.
29 Surprisingly, the DBE does not have an entry for this scholar. For biographical details and references see
Decock, Theologians, p. 54.
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