Page 53 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

MEDIEVAL IUS COMMUNE
had been aware of it. If he was ignorant of the defect, he could not be held to account for it. This appears to be the gist of Placentinus' writings in his Cum essem Mantue.77
Accursius is of another opinion. In his gloss Quoties to D. 21.1.61, which holds a seller liable for price reduction, although his knowledge regarding the servitude is unclear, Accursius notes:
'In another place he \[the knowing seller\] is liable for all loss, as in D. 19.1.13(14).2, D. 19.1.35 and D. 18.1.59. Similarly, if he did not know the defect but assures that he sells the land in the best condition, he is liable for all loss \[if a defect comes to light\], as in D. 19.1.13(14).3'.78
This distinction between a knowing seller who pays all loss and an unknowing seller who has only a limited liability also appears in Accursius' gloss to D. 18.1.59. Contrary to the text's content, the gloss states that a seller who had not guaranteed the land's best condition, still has to deliver it free from encumbrances on pain of having to reduce the price.79
From the combination of the glosses mentioned above we can gather that Accursius favours the rule that knowing sellers and sellers who give an explicit guarantee account for all loss, if the land nevertheless turns out to be burdened. Moreover, he has no problems with stretching the wordings of the text, if that yields a more coherent law governing the liability for encumbrances as a whole. The result is that Accursius brings the liability for servitudes in line with that for other defects.
Concerning liability for an encumbrance with taxes, Accursius' gloss minus daret to C. 4.49.9 is of importance. The Codex text holds a seller liable for price reduction in the case of an unduly high additional tax (capitatio) irrespective of his knowledge. Accursius inevitably had to come to terms with D. 19.1.21(22).1 in which an ignorant seller contrariwise was not held to account for a tax (tributum). In the gloss Accursius proposes a number of solutions:
77 Placentinus, Cum essem, no. 235, p. 56: 'ignarus itaque venditor... alias tenetur in nichilum, ut in... servitute non dicta'.
78 Gloss Quoties to D. 21.1.61: 'Alioquin teneretur ad interesse, ut supra de act. em. Iulianus \[D. 19.1.13(14).2\] et l. quaero si quis fundum \[D. 19.1.35\] et supra de contrahen. emptio., l. cum venderes fundum \[D. 18.1.59\]. Item et si ignoravit et asseverasset eum optimum et maximum, teneretur ad interesse, ut supra de actio. em., Iulianus, § quid tamen \[D. 19.1.13(14).3\]...', in: De la Porte, Corpus iuris civilis, p. 1631.
79 Gloss Cum venderes to D. 18.1.59: 'Tu dic quod etiam si non dicatur uti optimus, tamen liber debet praestari, ut infra de acti. empt. in venditione \[D. 19.1.41\] et infra de evic. l. pen. no \[D. 21.2.75\], quod si non fiat, quanto minoris erat empturus agit, ut infra de aedil. edic. l. quoties \[D. 21.1.61\] , in: De la Porte, Corpus iuris civilis, p. 1426.
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