Page 94 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
his right not to reveal the hidden defect \[my emphasis\]'.72
In sum, Aquinas' rule that only a knowing seller can fraudulently sell a defective item seems to rule out a liability for unknowing sellers of defective objects, if the defect did not produce a lesion beyond moiety. At the same time, the rule that the only thing that should be taken into account is whether or not someone might incur harm on the one side leaves room even for the seller aware of the defect to escape liability, for example, by asking a lower price. In this context it is not surprising that Castilian scholars who write for the forum internum focus on the knowing seller's liability for defects and the liability for lesion beyond moiety. They pay little attention to the seller who sold defective things in good faith.
The fact that the seller in good faith scarcely appears in the works of Castile's moral theologians is a remarkable paradigmatic shift. As observed in the second chapter of this book, medieval legal scholars contrariwise focussed on Roman law texts which dealt with the liability of sellers who were unaware of the defect in the object they had sold. Indeed, Roman law and medieval ius commune do not require knowledge of the seller in order to hold him liable for latent defects.73
The changed line of approach taken by early modern Castilian theologians had its consequence for contemporary civil law doctrine and practice as well. In the following sections it will appear that scholars who write for the forum externum similarly neglect the situation in which both buyer and seller are unaware of any defect. Neither have I been able to discover a lawsuit against an unknowing seller in the cases brought before the Royal Chancery of Valladolid, other than those about lesion beyond moiety.74 To conclude, the theological idea that sellers in good faith cannot be held to account for defects in the things they sell percolated into the heart of Castilian civil law. It is likely that we here touch upon the Verschuldensprinzip as it developed in the later natural law doctrine of Grotius and others.
3.2.2.2 Fairness in exchange
In the previous section we encountered Molina mentioning that a contract should observe equality (aequalitas). This concept of equality in contract would play a major role in the development of sales law concerning latent defects. As we will see in subsequent chapters, natural law scholars such as Grotius, Pufendorf and Thomasius frequently discuss the idea that a certain balance between the parties' performances should be achieved in order to consider a contract just. For that reason, contractual balance or fairness in exchange is dealt with here somewhat more at length. What does this
72 Molina, Opera omnia, vol. 2, disp. 353, no. 19, p. 247: 'Nititur D\[ivus\]. Thom\[as\]. quoniam, cum ex vitio nullum damnum emptori sequatur et contractus aequalis sit, utitur iure suo venditor, non manifestando vitium rei occultum...'
73 D. 19.1.13pr; D. 21.1.1.2: ...neque enim interest emptoris, cur fallatur, ignorantia venditoris an calliditate...; for ius commune views on this issue see 2.2.3.
74 See this chapter's sections on the legal practice concerning remedies for defects in the thing exchanged (3.3.1.1-4.1).
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