Page 264 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
5.2.4.1 Roman-Dutch legal practice
An early modern Roman-Utrecht handbook on procedural law teaches that sellers must deliver the land they sell free from servitudes.236 Naeranus in his Sententien mentions a legal opinion given on 16 January 1611 which holds an ignorant seller of a plot of land answerable for price reduction when the land turns out to be encumbered with a servitude.237 In the writer's opinion, the seller would only have escaped liability, if he had explicitly mentioned in which encumbrances resting on the land the buyer would succeed.238
However, Bijnkershoek reports another approach adopted by the Supreme Court in case number 1727, decided in 1721. Titius239 had bought three salt pans, under the general clause that the sale comprised all encumbrances which the pans were subjected to, and a share of 2/19 in a small harbour to use as operating base for the exploitation of the salt pans. On top of that, he had agreed to pay 2/19 of the taxes and other burdens resting on the harbour. However, when push came to shove, Titius was ordered to pay 3/20 of the harbour's taxes instead of the 2/19 agreed, due to extraordinary encumbrances.240 He accordingly sued the seller, Maevius, for price reduction, acccusing Maevius of having acted in bad faith by not having correctly indicated which encumbrances attached to the share in the harbour and by not having exonerated himself from liability for those.241
Maevius' defense is revealing: 'he brought the defense that he had sold 2/19 of the property but without expressly mentioning the defect other than in a general clause'.242 Maevius hoped to avoid liability by stating that the burdens were not expressly stated in the contract and that for that reason he was not accountable for the unexpectedly higher sum due. This agrees with the doctrine stemming from Doneau and Vinnius that the buyer should bargain a warranty against overlooked burdens on immovables.243
Yet, the Supreme Court dismissed this defence. It agreed with the buyer that he had bargained the full use of the harbour. If a deal was made for 2/19 of the burdens, 2/19 was what the seller had warranted to cover the costs for the harbour's use, unless he had explicitly agreed otherwise.244 Hence, the Supreme Court granted a price reduction, even
236 Zutphen, Nederlandsche practycque, p. 124: 'Hoewel den vercooper het erf simpelijck vercoopt, is \[hij\] evenwel gehouden het selve te presteren vrij van alle servituten'.
237 Naeranus, Sententien, vol. 4, cons. 54, p. 91:'Sed quod manente venditione venditor ignorans emptori ignoranti teneatur quanti minoris , vel ex empto, et non ad interesse totale, vel evictionis nomine',
238 Naeranus, Sententien , vol. 1, cons. 224, p. 373.
239 Names are anonymized to Titius, Maevius and Semproni(a)/(us).
240 Bijnkershoek, Observationes, vol. 2, no. 1727, p. 490: 'et aliis oneribus extra ordinem esset subjectus'.
241 Bijnkershoek, Observationes, vol. 2, no. 1727, p. 490: 'Sed vero emptor:... neminem esse, qui non sit
conjecturus, partes dominii sequi partes onerum; si secus eset, id venditorem oportuisse excipere, ne fide mala emptorem deciperet; Brom, Urteilsbegründungen, pp. 199-200. The case has no corresponding resolution.
242 Bijnkershoek, Observationes, vol. 2, no. 1727, p. 490: 'excipit dat hij 2/19 van den eigendom verkogt had, sed onera expressa non esse, nisi sub generali clausula,...'.
243 See 4.2.4.
244 Bijnkershoek, Observationes, vol. 2, no. 1727, p. 490: '...cum utique ius navigandi et haerendi in portu
comparatum sit, id autem subsistere pro quacunque demum parte quis sit dominus, at partes non alia mente esse expressas, quam ut secundam eas ineatur ratio sumptuum et onerum...'.
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