Page 319 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SIX
the question whether a different liability regime applies to professional sellers.171 Grotius too contends in his Inleidinge that an ignorant seller had to answer for defects in a limited fashion. A professional lessor, however, had to compensate all loss the lessee had suffered.172
6.2.4 Liability for encumbrances on immovables
The liability regime in the Corpus iuris civilis for encumbered immovables differed from that for defective movables. Some defects in immovables such as additional taxes (capitatio) and servitudes could only be remedied with a price reduction, even if the seller knew of the land being encumbered.173 This differed from the liability regime for defective movables in which, generally speaking, an unknowing seller could be held liable for the price paid at most, whereas a knowing seller had to compensate all the buyer's losses.174 Humanists, Roman-Dutch and Roman-Frisian scholars, as well as the occasional scholar from the other Dutch provinces, had argued for a liability regime for immovables that either approached or deviated from this regime. The various efforts to do so had all in common that they were thought out against the background of Justinian's compilation and the interpretation of it as had come into being in medieval ius commune.175
Things were different in early modern Castilian legal scholarship. Influenced by age- old laws as the Siete Partidas and, most likely, natural law-based early modern scholasticism, it dismissed the view that there existed several liability regimes for different kinds of objects sold which appeared defect. To early modern Castilian theologians, all shortcomings constituted a breach of contractual fairness which in principle gave rise to one and the same liability, viz. to restore the contractual imbalance. This might have induced legal scholars to accept a general rule of liability for all encumbrances and defects in the thing sold according to which a knowing seller was liable for all damages and an unknowing seller for a reduction of price.176
The tendency signalled in early modern Castilian law persists in the writings of natural law scholars. Grotius in his Inleidinge states that the seller has to deliver a sold thing free from whatever defect, without further qualifications.177 Concerning servitudes, the seller had to ensure their absence. If the seller had not done so, he had to compensate for what the buyer would have paid less.178
171 Brunneman presents D. 19.1.6.4 only as an example of a seller who gives an explicit warranty. He further disregards the intriguing second half of the text. Commentarius, vol. 1, to D. 11.1, no. 29, p. 380; Lauterbach in his Collegium does not mention the text at all, nor do Struve in his Jurisprudentia romano- germanico, Stryk in his Usus modernus, and Schilter in his Praxi iuris romani. None of these works' titles on sales, the aedilician remedies, and lease discuss the increased liability rule for ignorant sellers or lessors of leaky barrels.
172 Grotius, Inleidinghe, 3.15.7; see 5.2.3.
173 C. 4.49.9 (capitatio); D. 21.1.61 (servitude); Hallebeek, 'The ignorant seller's liability', p. 188, 191.
174 D. 19.1.13pr.
175 See 4.2.4 (humanism) and 5.2.4 (early modern Dutch law).
176 See 3.3.4.
177 Grotius, Inleidinge, 3.15.7: ' eenig gebrek (whatever defect)'.
178 Grotius, Inleidinge, 3.15.5, p. 245: 'Want den verkooper moet de verkochte saeck den kooper leveren vrij
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