Page 54 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
'...but surely he \[the seller\] does not appear to be liable, if he was ignorant, as in D. 19.1.21(22).1, the words of which go against that. Solution: here the seller could have known the defect, there he could not, since the land was hereditary... Or say... that here he gave a warranty... or it does not matter whether he was aware or ignorant when one sues for how much less he would have bought, as is the case here and in D. 21.1.61'.80
In his gloss to D. 21.1.61 Accursius again emphasises the distinct liability of knowing and unknowing sellers.
''Evinced': that is, the seller has to compensate by means of the civil remedy for price reduction for how much etc. and that because the seller did not know that the servitude was due. Otherwise, he would have been liable for all loss'.81
Thus, by interpreting the seller as ignorant82, Accursius handsomely explains D. 21.1.61 in conformity with the more common rule that an ignorant seller is liable for price reduction and the knowing seller for all the buyer's loss.83 Consequently, he solves a seeming contradiction in the law about latent defects by bringing servitudes and other defects under the same liability regime. Baldus interprets C. 4.49.9 in the same
80 Gloss Minus daret to C. 4.49.9: '... Sed certe imo non videri teneri \[venditor\], quando ignoravit, ut ff. e. l. si sterilis, §i, quae est contra. Solutio. Hic scire potuit venditor, ibi non, quia hereditarium fuit...Vel dic...quod hic asseveraverit... Vel non refert utrum fuerit sciens an ignorans, quantum ad hoc ut agatur, quanto minoris emisset emptor, ut hic et ff. de aedil. edict. l. quoties', in: De la Porte, Corpus iuris civilis, p. 730.
81 Gloss Victus to D. 21.1.61, in: De la Porte, Corpus iuris civilis, p. 1631: 'Sc. venditor per actionem quanto minoris civilem, praestat tamen quantum etc. et hoc quoniam ignorbat \[sic\] venditor servitutem deberi: alioqui teneretur ad interesse...',
82 Accursius' assertion regarding the seller's knowledge is doubtful because the text can be read in two distinct ways. Depending on how one reads it, it is possible to defend either that the seller was aware of the servitude or ignorant. Taking the victus as the subject of the sentence si scisset hanc servitutum impositam turns the seller, who had to come to aid the buyer in a case of eviction but lost, into a seller who was aware of the servitude. However, the text can also be read as if the victus has to compensate for quanto minoris emisset emptor, si scisset hanc servitutem impositam, i.e. 'for how much the buyer would have bought, had he \[the buyer\] known about the servitude'.
83 Accursius interpretes D. 21.2.75 in a like manner in his gloss si tacitae: '...et hoc cum venditor ignorabat servitutes. Nam non ad interesse tenetur tunc, sed quanto minoris empturus esset, agitur. Alioquin ad interesse ut supra titulum I. quotiens \[D. 21.1.61\]', in: De la Porte, Corpus iuris civilis, p. 1666; likewise in the gloss Cum venderes to D. 18.1.59, in: De la Porte, Corpus iuris civilis, p. 1426: '...tu dic quod etiam si non dicatur uti optimus, tamen liber debet praestari, ut infra de act. empti. in venditione \[D. 19.1.41\] et infra de evic., l., pe. no \[D. 21.2.75\], quia si non fiat, quanto minoris erat empturus agit, ut infra de aedil. edic., l., quoties \[D. 21.1.61\]'.
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