Page 51 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
Differently, De Castro's explanation of the barrel text shows that he attaches consequences to the seller's capacity. In his comments on the text about the sale of a barrel, De Castro imputes a full liability to the ignorant seller, 'because he is always held to act as delivering intact, unless there are signs to the contrary'.70 Consequently, a seller who feigns to offer only things of good quality, has to live up to not doing so. The step that this is generally so in the event of professional sellers, however, still was a long time coming and not yet taken in medieval legal doctrine.
The interpretation of D. 19.1.6.4 would remain one of the moot points in the ages to come. In due time, the text would be used as an argument by legal scholars to justify a stricter liability for sellers who acted in pursuance of their profession.
Conversely, that buyers were not allowed to take sellers to court when the defects were obvious is acknowledged in the Summa Trecensis, Lo Codi, by Placentinus, Accursius, De Revigny, Cinus, De Belleperche, Jacobus, Bartolus, Baldus, Salicetus, De Castro, and Aretinus.71 Moreover, in later ages too, certain capacities with regard to discovering defects and the power of bargaining would be ascribed to professional buyers, which made granting them the same rights as the average buyer less self-evident72
2.2.4 Liability for encumbrances on immovables
The Corpus iuris civilis contains various texts dealing with the liability of a seller of encumbered land. The entirety presents a complicated and jumbled picture. First, to determine the seller's liability it is inconsistently important whether or not the seller knows about the encumbrances. Sometimes the seller's knowledge matters, sometimes it does not. Secondly, the texts differ regarding the impact of whether or not the seller indicated the state of the land sold. Thirdly, the Corpus iuris civilis appears to apply differing rules for provincial taxes (tributum).
More in particular, D. 21.1.61 holds a seller of burdened land liable for price reduction, if the sold land proved burdened with a servitude. The text however, does not make it clear whether there is a difference in liability between knowing and unknowing
70 Paulo de Castro, Commentaria, vol. 2, to D. 19.1.6.4, fo. 119v: 'sed si non est integrum sive dixerit ipsum integrum sive non, tenetur ad omne damnum et interesse contingens emptori propter hoc quia semper videtur actum ut integrum praestetur nisi contrarium appareat. h.d.'; Dilcher, Leistungsstörungen, p. 238.
71 Accursian gloss habuisse to D. 21.1.55; for references to the other works mentioned see Dilcher, Leistungsstörungen, p. 221-222, p. 232, 235, 237-239.
72 See the sections throughout this book titled 'Increased liability'. 37