Page 198 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

LEGAL HUMANISM
Cujas, he is most concerned with systematising the seller's duties and forging Justinian's text into a coherent framework. To him, both the duty to safeguard from latent defects and from encumbrances are part of the overarching duty of the seller to deliver the object in such a manner that the buyer can enjoy its peaceful possession (eam recte habere licere).164 Doneau further divides this duty in i) safeguarding from defects and ii) safeguarding from servitudes and taxes. In his own words: 'the seller's obligation arising from defects in the item sold is one thing, that from servitudes and taxes quite another'.165
The content Doneau ascribes to the duty to safeguard from servitudes and taxes does not correspond with that of the duty to safeguard from latent defects. First of all, the seller who is unaware of servitudes or taxes on the land he sold can never be held liable.166 Secondly, the knowing seller who had not revealed the servitude or tax on the land is liable for a price reduction only.167 In the event of latent defects, Doneau accepts different liability rules. In the first case he holds the seller liable for price reduction and in the second case for all loss.168
Concerning the knowing seller's liability for servitudes and taxes, it is worth noticing that Doneau goes against the view of Accursius. The latter had interpreted the texts in which the knowing seller was liable ex empto as indicating a liability for all of the buyer's loss, and not only for reduction of price.169 De Revigny had even applied the rule of D. 19.1.13pr. to sellers of encumbered land, viz. that knowing sellers are always liable for all loss and unknowing sellers only for price reduction in its fullest sense. The reason Doneau gives for deviating from these views is the following:
'But why is this observed differently in servitudes and taxes, which no less diminish the thing's value than diseases and defects, for which we said the seller has to account, even if he was ignorant? The different rationale is that which is given for a sold slave who fled and one inclined to steal in D. 19.1.13.1. The diseased or defective thing we can not, so to speak, possess unhampered, whereas the thing encumbered with a servitude or tax, we can possess no less. After all, diseases and defects impede the sold thing's use, whereas servitudes and taxes do not in the same fashion'.170
164 Donellus, Commentarii, vol. 7, ch. 3, §1, p. 390: 'Tertium caput praestationum huius generis de re vendita est, non solum ut res ita tradatur, quo eam habere liceat, sed etiam quo eam recte habere liceat, id est, ut tradatur incorrupta et ab omni onere rei ius minuente libera, quoad eius ex bona fide fieri oportet'.
165 Donellus, Commentarii, vol. 7, ch. 3, §2, p. 390: 'Alia de morbis et vitiis rei venditae venditoris obligatio est, alia de servitutibus et tributis'; note that Doneau too no longer heeds the distinction between servitudes and taxes. Accursius held that the latter only give ground for a remedy when the seller had knowingly concealed them.
166 Donellus, Commentarii, vol. 7, ch. 3, §17, p. 400: 'Primum, quamvis res servitutem debeat aut tributo vel pensitatione sit onerata, nec de his rebus quidquam commemoratum sit in venditione, nunquam tenetur earum rerum nomine venditor, si servitutem aut tributum deberi ignoraverit'.
167 Donellus, Commentarii, vol. 7, ch. 3, §17, p. 401: 'Quod si cum sciret venditor servitutem aut tributum deberi, non aperte certiorem fecit emtorem, quid servitutis aut tributi esset, place quidem eum, quia decepit emtorem, ex emto teneri; non tamen ad rem redhibendam, sed quanto minoris emtor emturus esset, si de his factus esset certior, ut sic improvisum onus aestimetur'.
168 Donellus, Commentarii, vol. 7, ch. 3, §12, pp. 396-397.
169 See 2.2.4.
170 Donellus, Commentarii, vol. 7, ch. 3, §17, pp. 401-402: 'Sed cur hoc aliter in servitutibus et tributis
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