Page 90 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
pleitos and writs of execution which are quoted can be found in appendix A to this book. Finally, to enable a quick location of the Castilian words in the hard to decipher cadenada font, I indicated sentence endings with vertical bars ( | ).
3.2.2 Scholastic foundations of a natural law theory on remedies for defects in the thing sold
The centres of learning in 16th century Castile were not only the universities but also the cathedrals and convents dispersed all over Castilian territory from Salamanca to Alcalá de Henares. Above all, early modern scholastics grappled to conciliate practical questions, such as whether or not sellers had to declare latent defects, with the demands imposed by religion. At the same time confessors could not ignore more earthly considerations such as smooth and efficient trading in which penitents were involved.48 Confessional practice required that they formulated answers which did justice to catholic morals in a court-like setting. The confessor was likened to a judge and the penitent as defendant and plaintiff.49
The main source of inspiration for theologians who concerned themselves with 'the Church's claim to spiritual jurisdiction'50 was Saint Thomas Aquinas' natural law reasoning.51 Based on Aristotelian concepts of justice, Aquinas' view of justice reasoned from the idea that justice can either be distributive or commutative. The latter concerns voluntary transactions between individuals, such as concluding a sales contract. Such transactions had to answer to the requirement of fairness in exchange52: the value of the performances exchanged had to be in proportion. For sales, for example, this meant that the object sold corresponded with the price paid for it. This, of course, presupposes a reference point. The role of tertium comparationis would be performed by the just price early modern scholastics believed every thing or performance possesses.
A breach of contract amounts to a breach of commutative justice. For instance, delivery of a defective thing while receiving the price for a thing in good condition was qualified as a sin which had to be made good. Theological doctrine couched the penitent's duties to atone for his sins in terms of restitution. The penitent who had acted in breach of confessional rules had to restore the breach of commutative justice or contractual imbalance which his sinful behaviour had caused.53 Aquinas defines it as follows:
'... through restitution a restoration of commutative justice takes place, which consists in the balancing of performances, as I said before. This balancing of performances can only be realised, if he who has less than what is his, is compensated for what he lacks. To realise this compensation it is necessary that he who received restores to him'.54
48 Decock, Theologians, p. 82.
49 Ibidem, p. 70.
50 Ibidem, p. 88.
51 Ibidem, pp. 50-51; Gordley, Origins, pp. 14seq.
52 A term coined by Decock, Theologians, p. 508.
53 Decock, Theologians, pp. 514, 517.
54 Aquinas, Summa Theol., vol. 9, IIaIIae, q. 62, a. 5, resp., p. 51: '... per restitutionem fit reductio ad aequalitatem commutativae iustitiae quae consistit in rerum adaequatione, sicut dictum est. Huiusmodi
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