Page 260 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
bad faith liable for all the buyer's loss due to fraud.216
At first glance, Bronchorst seems to stretch the meaning of the relevant Digest texts
involved. In D. 19.1.41 it seems that the seller had not indicated the aqueduct for which the house-owner yearly owed a certain sum. This could be read in the word deceptus; the buyer is granted a remedy, because he was deceived by the seller. Thus, contrary to Bronchorst's interpretation, D. 19.1.41.1 seems to suggests that the seller was aware of the encumbrance and that this text, used by Bronchorst to construe a liability for both knowing and ignorant sellers for servitudes for price reduction, only deals with a knowing seller.217
However, it may be that Bronchorst's translation of deceptus is inspired by the medieval and Castilian interpretation of the Latin verb decipere. As observed in sections 2.3.2.1 and 3.2.2.4, in their discussion of the Roman adage 'it is by nature allowed to parties in sales to outwit each other'218 medieval and early modern Castilian scholars permitted that parties to a sales contract deceive each other to the limit of half the just price. In expressing this view, they used the verbs 'deceive' (decipere) and 'outwit' (circumvenire) interchangeably. It could be that Bronchorst reads D. 19.1.41 as dealing with a situation in which one of the parties had been outwitted (deceptus) within the margins of what was allowed in contemporary theory. Bronchorst might have understood the text as not being about a knowing seller and interpreted it as stipulating a limited liability in general for sellers of encumbered land.
Be that as it may, it is worthwhile to note that Bronchorst's view is one which is not encountered before. It deviates from Doneau's opinion that only knowing sellers could be held to account for burdens on the land they sold. Neither does Bronchorst adopt the medieval majority view that knowing sellers are liable for all damages and ignorant sellers for price reduction only. In the same vein, Grotius mentions that the buyer of encumbered land can only sue the seller for price reduction.
'... the seller has to deliver the sold thing free from all encumbrances or otherwise he is held to compensate for so much as the buyer would have been willing to pay less to keep the sale intact... '.219
Grotius does not make any explicit statements regarding the seller's knowledge of the
216 Bronchorst, Enantiophanon, vol. 1, 2.64, pp. 212-213: 'Resp. Non tenetur venditor ob servitutem emergentem emtori actione de evictione ad duplum, vel actione ex emto in id quod interest, sed aestimatoria actione tantum tenetur, quanto minoris emisset emptor, si servitutem hanc impositam scivisset, d.l. sed etsi, §1 \[D. 21.2.15.1\], l. in venditione 41, ff. de act. empt. \[D. 19.1.41\]. Excipiuntur duo casus. Primo si fundus venditus sit, uti optimus maximusque est, tunc enim de evictione actio competit, non quanti minoris, l. cum fundus 48 \[D. 21.2.48\]. Secundo si sciens dolo malo vendidit ignoranti, quo casu etiam est actio ex empto in omne id quod interest, ratione doli, l. 1, §1, ff. de acti. empt. \[D. 19.1.1\]... '.
217 Lokin e.a., Het Rooms-Friese recht. p. 147, 149.
218 D. 4.4.16.4: Idem Pomponius ait in pretio emptionis et venditionis naturaliter licere contrahentibus se
circumvenire.
219 Grotius, Inleidinge, 3.15.5, p. 245: '... den verkooper moet de verkochte saeck den kooper leveren vrij
van alle dienstbaarheden/ofte anderssints is ghehouden te vergoeden 't gunt de kooper daer aen was geleghen, blijvende den koop voorts in haer geheel...'.
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