Page 107 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN CASTILAN LAW
However, again already king Alfonse X the Wise had decreed in his Siete Partidas that non-corporeal defects should be treated in the same manner as all other defects. The argument evolves around the sale of a slave inclined to flee or to steal. According to D. 19.1.13.1 and D. 21.1.4pr. no remedies lie against the seller for such purchases. The Siete Partidas, however, do provide possilibities to sue.
'... When a slave sold by one man to another has a defect or illness, also if he is a thief or is accustomed to fleeing from his master or \[has\] other similar defects, the seller, if he knew this but had not told the buyer so, is held to take back the slave. In addition, he must pay back the price paid to the buyer together with all damages the buyer incurred because of that fact. And if he had not known it, the slave must remain with the buyer. However, the seller is held to pay back so much of the price paid, as if it was known that the slave was worth less because of the defect \[my emphasis\]'.136
In this provision of the Siete Partidas slaves prone to stealing and fleeing are explicitly brought within the scope of one set of remedies applicable to all kinds of defects in slaves. Knowing sellers are liable for returning the price and full damages. Unknowing sellers have to reduce the price. This does not square with D. 21.1.1.2 which states that the actio redhibitoria can also be instituted against sellers who were not aware of the defects, which rule medieval legal scholars had accepted.137 Yet, the Siete Partidas opt for the rule of D. 19.1.13pr. about rotten beams and contagious cattle according to which unknowing sellers cannot be liable for more than a reduction of price. What is more, they apply this rule to all defects, regardless of whether they are corporeal or non-corporeal. Apparently, the compilers of the Siete Partidas wanted to get rid of the rather intricate ius commune interpretation of Roman law with its division between aedilician remedies for corporeal and civil remedies for non-corporeal defects.
Furthermore, the Siete Partidas dismiss the exception that sellers of slaves inclined to flee or to steal, though non-corporeal defects, could still be sued with an aedilician remedy. Finally, SP 5.5.64 explicitly seems to warn that the Roman law rule that sellers of slaves inclined to steal cannot be sued under any circumstances with the action on the sales contract no longer holds. To put an end to this intricate web of liability rules, the Siete Partidas instead only heed whether the seller knew of the defect or not. Any difference in scope between remedies of aedilician or civil origins has vanished and the kind of defect in the slave, whether corporeal or non-corporeal, no longer matters. SP 5.5.65 demonstrates the same lack of interest in these complexities of Roman law and ius commune with regard to draught animals. All of those suffering from 'any kind of serious illnes or defect'
136 SP 5.5.64: De la tacha, maldad que oviesse el siervo, que un ome vendiesse a otro. Tacha, o maldad aviendo el siervo, que un ome vendiesse a otro, assi como si fuesse ladron, o oviesse por costumbre de fuyrse a su señor, o otra maldad semejante destas: si el vendedor sabía esto e no lo dixesse al comprador, tenudo es de recebir el siervo, e deve al comprador tornar el precio, con todos los daños e los menoscabos que le vinieron ende. E si no lo sabia, devo fincar el siervo al comprador. Pero es tenudo el vendedor, de tornarle tanta parte del precio, quanto fuere fallado en verdad, que valia menos por razon de aquella tacha. Esso mismo dezimos que seria, si el siervo oviesse alguna enfermedad mala encubierta, in: Los códigos españoles, vol. 3, p. 631.
137 See 2.2.3.
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