Page 455 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
law-texts of the Corpus iuris civilis indeed managed to bring defects in movables and encumbrances on immovables under the same legal regime. To both, the rule of D. 19.1.13 (14)pr. applied according to which unknowing sellers were liable for the price paid at most but knowing sellers could be sued for all the buyer's loss. Only burdens which were so common that no buyer could with a deadpan expression contend not to have been aware of them - e.g. provincial land tax - formed an exception as encumbrances for which debtors could not be held liable.
Accursius' view not only turned out as the medieval communis opinio but also dominated discussions about the topic in subsequent ages. Early modern Castilian civil law likewise aligned the liability for encumbered things with that for defects in movables.
However, wishing to interpret the Corpus iuris civilis more precisely, legal humanists became inextricably lost in its contradictory texts on the seller's liability for encumbrances on immovables and gave up efforts to explain it in terms of a liability for sellers of defective objects in general. Accursius' solution, clear though it was, was dismissed as unsubstantiated by texts in the Corpus iuris civilis by Doneau. The French humanist maintained the rule in the Corpus iuris civilis that sellers ignorant of encumbrances on the immovables they sold could not be sued. Doneau defended this rule with the somewhat puzzling remark that, 'the thing encumbered with a servitude or tax, we can possess no less'. Since buyers continue to enjoy the encumbered immovable a rigorous liability is not required, so Doneau seemed to mean.
In Roman-Dutch and Roman-Frisian law both Accursius' and Doneau's along with new views were defended. Similar to Accursius, a number of Roman-Dutch writers had no qualms in stretching texts of the Corpus iuris civilis which seemed to indicate another liability regime than the one they wanted it to indicate. Also Doneau's restrictive reading of the Corpus iuris civilis made headway both among legal scholars and in the case law of the Supreme Court. On the other hand, Bronchorst and Grotius formulated a liability regime which was unheard of before. According to them, both sellers aware and unaware of encumbrances on land were liable for price reduction. Voet held only knowing sellers liable and then for all loss.
Grotius seemed to reason that encumbrances should be considered as any other defect in a sold object. This approach is reminiscent of how Castilian scholastics framed the sale of a defective item in the more general terms of unjust enrichment, error or mistake. Natural law scholars of the 17th and 18th centuries carried this further. Domat defined a safeguarding duty applying to various troubles relating to immovables. This was a first step toward a legal approach in which not the kind of defect, but the seller's duties vis-à-vis the seller became the determining factor in defining liability. Domat's garantie would find its sequels in the Code civil's garantie, the BW 1838's vrijwaring and the Código's saneamiento. The ALR, ABGB and BGB all coined the term Gewährleistung for, roughly speaking, the same concept.
Other natural law scholars overruled Doneau's view that encumbrances should be 455