Page 126 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER THREE
price prevails.
López interprets the provision in a similar manner with an explicit reference to the
remedy for price reduction:
'It seems that one must say that in both cases the seller is liable, also if he is ignorant, in the sense that the word callando means that he knowingly or unknowingly kept silent... Yet, in this regard there shall be a difference between a knowing and unknowing seller, because if the seller knows, he will be liable for all damages. If he is unaware of it, he will only be liable for how much less the buyer would have bought the land for because of the servitude or land tax.'213
Moreover, López remarks that the rule that provincial taxes should be known to the buyer does not hold in Castile.214 Taken with his denial of a different regime for corporeal and non-corporeal defects, it becomes clear that in López' view the same liability regime applies to defects in movables as to encumbrances on immovables. In both instances the seller's liability depends on his good or bad faith. The knowing seller is liable for all losses suffered, whereas the liability of the unknowing seller is limited to the paid price.
Gómez too treats the issue extensively. He starts from D. 21.1.61215 in which the buyer is granted a price reduction, though it is not clear whether or not the seller was aware of the servitude. Gómez' argument is a bit hard to follow, but he seems to explain that D. 21.1.61 is in contradiction with the rule that according to civil law a knowing seller is liable for all damages and an unknowing seller only for a reduction of price. As we have seen, the Siete Partidas corrected this. It made a seller's liability for servitudes subject to the same rules as his liability for latent defects. All had to be solved in keeping with the general rule that the seller in bad faith has to compensate for extrinsic damages whereas the seller in good faith could be held liable for a price reduction not exceeding the price paid at best. Gómez:
'In the second place, limit and understand that if the seller knew about the servitude and kept silent and did not reveal it to the buyer, he is then liable for the action on the sales contract for all damages, though not for the double. This is written down in D. 19.1.1.1. Yet, if the seller was not aware of it, the buyer does not sue for eviction with all damages, but can only sue for how much less he would have bought the land, had he known that the land was encumbered with a servitude, as in D. 21.1.61. This text is as follows: 'Whenever one litigates because of a servitude, the one who loses only has to compensate for how much less the buyer would have bought, had he known that the land was encumbered with a servitude'... See there all learned doctors and explicitly Azo who have this doctrine. See his comments to C. 8.44.30 in his Summa.
213 Note 3 to SP 5.5.63, in: Los códigos, vol. 3, p. 631: 'in hoc tamen erit differentia inter scientem et ignorantem, quia si venditor sciat tenebitur ad totale interesse. Si vero ignoret, tenebitur quanto minoris propter servitutem vel tributum emisset'.
214 Note 3 to SP 5.5.63, in: Los códigos, vol. 3, p. 631: 'ratio quam assignant Gloss. et Doctores de praedio provinciali, non militat in hoc Regno'.
215 'Ulpianus libro 80 ad edictum. Quotiens de servitute agitur, victus tantum debet praestare, quanti minoris emisset emptor, si scisset hanc servitutem impositam'.
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