Page 261 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
encumbrance. It can be defended that Grotius also holds an ignorant seller liable for servitudes or taxes on land, because he considers it an implied condition that the thing is delivered free from latent servitudes.220 Stating thus, Grotius describes a law which is at odds with Justinian's compilation, since nowhere in the Corpus iuris civilis can an obligation to deliver sold land free from servitudes and taxes be found.221
Van Leeuwen also explains that there exists a limited liability for servitudes for sellers who had warranted the land to be free of them. He is aware that this is contrary to the general rule that sellers who make false warranties can face a rescission of the contract.
'Otherwise, if the seller proclaimed the thing free from burdens, while it is later found to be liable for servitudes, the buyer cannot sue for rescission, as some think. Nevertheless, he can start proceedings for returning for how much less it is worth, D. 21.1.61. Once a sale has been completed, it is not allowed to recede from it against the will of the other party, C. 4.44.3 and C. 4.10.5. See De Groot, Inleidinge, 3.15.5'.222
Vinnius, however, does not follow the path set out by Bronchorst and Grotius. Contrariwise, he seems to adhere to Doneau's interpretation of the Corpus iuris civilis, according to which there was only limited liability for servitudes and taxes when the seller had been aware of those. Doneau justified this less strict liability by reasoning that servitudes and taxes do not impede the buyer to continue to use the land. Only if in bad faith could the seller be held responsible for price reduction.223 Vinnius almost literally restates what had already been put forward by Doneau.
Voet also argues for liability for the knowing seller exclusively, but then for all the buyer's loss. Similar to Vinnius and Van Leeuwen he dismisses the view that sellers who were not aware of any encumbrances in sold immovables can be held accountable. The seller must have concealed the burdens on the land knowingly before he can be sued.224 Again, Voet takes D. 21.1.61 as a text in which the seller was in bad faith. Since D. 19.1.41, in Voet's interpretation, also ties a seller's liability for servitudes to bad faith, Voet considers bad faith a prerequisite. He props up the argument that the knowing seller is liable not only for price reduction, but for all loss, with Grotius, who stated that it was a rule in sales law that the knowing seller had to answer for all loss the defect had caused. 225
220 Lokin e.a., Het Rooms-Friese recht, p. 150.
221 D. 18.1.59; Lokin e.a., Het Rooms-Friese recht, p. 146.
222 Van Leeuwen, Censura forensis, 4.19.15, p. 550: 'Alias si liberam dixerit venditor, quae servitutibus
obnoxia postea reperitur, non ad rescindendam emptionem, ut quidam putant, sed ad redhibitionem quanti minoris agere potest emptor, l. 61, ff. De aedilit. edict. ab emptione semel perfecta invito altero recedere non licet, l. 3, Cod. De rescind. vend. et l. 5, Cod. De obligat. et actionib. Vide Grot. Introd. lib.3, cap. 15, vers. Onder waeren',
223 Vinnius, Jurisprudentiae contractae, 2.15, p. 247: 'De servitutibus et tributis quia haec onera usum rei non impediunt, hoc observatur, ut si venditor ea ignoravit, eo nomine non (l. sterilis 21. § I. de act. empt. \[D. 19.1.21.1\] recte igitur facturus est emtor, si de his in re gerenda sibi caveat) teneatur'.
224 Voet, Commentarius, vol. 3, to D. 21.2, no. 16, p. 761: 'Sed magis actioni ex emto vel quanti minoris ex aedilitio edicto locus est, ubi servitutis onus invenitur impositum, quod a venditore sciente dissimulatum erat, l. Quotiens, 61, ff. de aedil. edicto \[D. 21.1.61\], arg, l. In venditione, 41, ff, de act. emti.' \[D. 19.1.41\].
225 D. 19.1.13pr. Grotius copied this Digest text in the passage of his Inleidinge Voet refers to, viz. Grotius, 253