Page 258 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
We have already come across Dumoulin's invective against scholars who thought otherwise and contrary to what he called common sense and equitable uses and practices of men.203 Wissenbach gives the French scholar his full support and dismisses the alternative interpretations of the barrel-texts.
5.2.4 Liability for encumbrances on immovables
Justinian's Corpus iuris civilis is not very clear about the seller's liability for servitudes and taxes found on a sold plot of land. 204 There was a difference in liability depending on the kind of taxes the landowner was due which had troubled legal scholars since Justinian's time. A capitatio, an additional tax, that proved higher than expected, triggered a remedy irrespective of the seller's knowledge, whereas a tributum, a tax on provincial land, only gave a ground for action, if the seller knew about it.205
In medieval ius commune the wish to streamline the liability for encumbrances with that for defects in movables had already surfaced. early modern Castilian civil law had indeed done so.206 Yet, 16th -century humanists remained divided into those scholars who sought to understand the liability for encumbrances in relation with that of latent defects and those who persisted in a close reading of the Digest's content. Of the former, Mudaeus was the main representative. He streamlined the liability for encumbrances on land with the general principles of liability for latent defects in D. 19.1.13pr. Cujas was part of the second group of scholars who stuck to the conflicting rules in the Corpus iuris civilis. Standing somewhat alone in his approach to the matter, Doneau had explained the limited liability for servitudes and taxes207 by highlighting the fact that they did not impede the physical use of the bought immovables. What all humanist scholars had in common was that they considered the difference between capitatio and tributum no longer relevant to justify separate liability regimes.208 In this section the position of Roman-Dutch and Roman- Frisian scholars on the matter will be explored.
A first general thing to note is the humanists' disregard for any perceived difference in liability for an additional tax (capitatio) or land-tax (tributum). Roman-Dutch and Roman- Frisian scholars also believe that for determining liability the kind of burden is not relevant. Their discussion about liability for encumbrances focuses on whether the seller's liability answers to the rules formulated in D. 19.1.13pr. for latent defects.209 Is a knowing seller
Cur enim huiusmodi interpretationem persuadeas: si quis, i.e., si vietor? Hunc scrupulum ita eximere
laborat Molinaeus...'.
203 See 4.2.3.
204 D. 18.1.59: Celsus libro octavo digestorum: Cum venderes fundum, non dixisti "ita ut optimus maximusque": verum est, quod Quinto Mucio placebat, non liberum, sed qualis esset, fundum praestari oportere. Idem et in urbanis praediis dicendum est.
205 D. 19.1.21.1 and C. 4.49.9; cf. Hallebeek, 'The Ignorant Seller’s Liability', p. 206.
206 See 2.2.4 and 4.2.4.
207 Tributum that is. Doneau remained silent about the capitatio.
208 See 4.2.4.
209 Cf. Vinnius, Jurisprudentiae contractae, 2.15, p. 247: 'De servitutibus et tributis...'; Gudelinus, Commentariorum, 3.7, p. 108: 'Quid si servitutem, tributum, aliudve simile onus rei venditori reticuerit? Tenetur et eo nomine, scilicet sub scientiae et ignorantiae distinctione modo commemorata... ';
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