Page 129 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILAN LAW
rescission allowed for a compensation for all damages and, secondly, that his Castilian colleagues only granted such a rescission in the event of bad faith on the side of the seller. However, Villadiego's impreciseness may also be due to the tendency in Castilian law to disregard Roman law subtleties. The actio quanto minoris might have gained a much broader meaning in the Castilian context in which Villadiego worked. A buyer suing for quanto minoris might simply indicate that the suit is for the loss of value of the land plus damages the buyer incurred because of the burden, consisting, for example, in reduced profits because of the land's diminished produce.
Villadiego's seemingly confounded interpretation of the ius commune-remedies for latent defects perhaps tells something about contemporary Castilian practice. After all, as a lawyer in Madrid and commentator of Castilian law224, Villadiego was steeped in the legal practice of his time, so that it is difficult to believe that his mixing up of the aedilician remedies and the amount of damages one can sue for is the result of inexperience or lack of knowledge. It might be that the ius commune-doctrine made place for a more flexible approach in practice to the question how to remedy defects in which the plaintiff was free to sue as he saw fit. E.g. in the event of bad faith at the seller's side, the plaintiff was no longer tied to a remedy for rescission and full damages, but could alternatively sue for price reduction and damages. Again, Castilian legal theory is more preoccupied with whether the seller had acted fraudulently or not than with technicalities of Roman law.
3.3.4.1 Legal practice
As observed above, Castilian legal doctrine has discarded the particular liability regime for immovables encumbered with servitudes or taxes. It applied the regime for sales of defective movables also to sales of encumbered land. Moreover, it holds both the seller in good faith and in bad faith liable in accordance with the principle that the first had to compensate less than the second.225 It is to be seen how this worked out in the rough and tumble of litigation.
The pleitos dealing with the same matter which were brought before the Royal Chancery demonstrate that legal practice followed Castilian doctrine. A party who had been bamboozled with regard to a tax or servitude on the land bought could claim more damages from the seller in bad faith than would have been possible according to ius commune-sources. In a case between María López de Albarado and Juan de Mesonery and Catalina Sánchez the initial claim of López, plaintiff, is put as follows:
'and as it is so that having sold to my party and to her said husband the said goods as being free from census and taxes and encumbrances, they turned out to be encumbered contrariwise, as is also declared by the same party of the other side, by reason of which confession I entreat to order the sale to be null and the adversary
224 Santana Molina, 'Villadiego Bascuñana y Montoya, Alonso de?', in: DBE, vol. 50, p. 20; cf. the prologue to Villadiego's Instrucción, n.p.: 'Y lo que en resolucion contiene este libro es una pratica civil y criminal, conforme al estilo comun de los tribunales de Corte y Chancillerías y otros ordinarios del Reyno, fundada en derecho y leyes Reales'.
225 See section 3.3.3.
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