Page 195 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FOUR
particulars of the present text by alluding to the kind of object that is leased out or sold. In this, he differs from Cujas, who provides historical grounds to explain the exception the barrel-case poses to the general rule on liability under sales. According to the latter, a duty of care existed for sellers of barrels and similarly fragile items. Thus, the liability the text imposes is not so much a result of the particulars of the thing sold, but of the behaviour of the seller before conclusion of the sale. Doneau on the other hand, attaches meaning to the kind of object that had been sold.
Somewhat surprisingly, Doneau's explanation is the result of casuistic reasoning which does not chime well with his wish to come to a systematic overview of Roman law suitable for deductive reasoning. Cujas, on the other hand, moves in the direction of a general duty of care, an approach that one would not expect from a jurist more prone to litteral a close-text interpretations of the Corpus iuris civilis.
4.2.4 Liability for encumbrances on immovables
Accursius and later medieval scholars had interpreted the seller's liability for encumbered immovables in the Corpus iuris civilis largely in keeping with the rule of D. 19.1.13pr. An ignorant seller could only be liable for price reduction and a knowing seller had to compensate for all the buyer's loss. Yet, a significant amount of texts in the Corpus iuris civilis do not fit properly with that rule and had to be brought in line with it by stretching their content. This resulted in rather strained interpretations of texts D. 18.1.59, D. 19.1.41, D. 19.1.21 and D. 21.1.61, which one would not expect when reading them. As a result, the medieval rules governing liability for servitudes and taxes on land made a complicated system which was difficult to fathom.153
Unsurprisingly, the opaque medieval interpretations engendered equal obscurity in the ages that followed. Some 16th century humanists likewise interpreted the seller's liability for servitudes in keeping with the principle spelled out in D. 19.1.13pr. Others chose a different path.
An example of the first is Balduinus in his interpretation of D. 21.1.61. This text holds the seller liable for price reduction without giving clues about his knowledge of the servitude on the sold land.154 According to Balduinus, however, the seller in the text must have been unfamiliar with the servitude's existence. Otherwise, he could have been sued for all loss on the grounds of fraud (dolus). Balduinus' reading cannot be sustained by the text's literal wordings, which do not say anything about the seller's state of mind. They only mention that the seller is liable for price reduction in the event a buyer of his land has been evicted because of a servitude. Perhaps the seller knew about it, perhaps not. Balduinus' interpretation seems to have been inspired by a wish to streamline the liability for latent defects and encumbrances. This feeling is corroborated by his reference to D. 19.1.13pr.
153 See 2.2.4.
154 D. 21.1.61: 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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