Page 56 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER TWO
text D. 19.1.21(22).1. It states that an unknowing seller of taxed land is not liable at all.90 In De Revigny's view, the seller really should be liable for price reduction in accordance with the Digest text in which an ignorant seller of infected cattle or of a dilapidated house can be sued for price reduction.91 De Castro is of the same opinion.
'... there is a distinction between him who knows... and him who is unaware and then he is not liable in any way. Yet, against the latter opinion goes that he should be held liable, even if he was unaware of the defect, but then for price reduction only, although I have to admit that he is not liable for all the buyer's loss going beyond the damage to the thing'.92
This somewhat loose interpretation brings the text back in line with the liability rules of D. 19.1.13(14)pr.
In his discussion of C. 4.58.4.1, De Revigny underscores that there is only a possibility to rescind in the event of a seller who is aware of the defect. In this text a buyer of land on which weeds appear to grow is granted this remedy, even though it is not clear whether the seller knew about the weeds. De Revigny adds that the rule applies 'in case of a knowing seller'.93 Doing so, he again emphasises the distinction in liability between knowing and ignorant sellers of encumbered land.
On the other hand, we find medieval scholars who clearly deny the right to sue a seller who was ignorant of encumbrances on the land he sold. Fulgosius takes as a ground rule that only a seller who guarantees the absence of encumbrances is held to deliver the land free from burdens. Though the texts D. 19.1.21(22).1, D. 19.1.41 and also D. 21.1.61 indicate that a knowing seller has to compensate for all damages, they do not say anything about the liability of an ignorant seller, according to Fulgosius. Unlike De Revigny, he does not stretch the Roman law texts to fit the rule that a knowing seller is liable for all loss and an unknowing seller for price reduction. He interprets the texts about provincial taxes as follows. First, he refutes Accursius' theory that buyers do not
90 ... quod si ignorans non praedixerit, quod forte hereditarium praedium erat, non tenetur.
91 De Revigny, Lectura super codice, to C. 4.49.9, no. 1, fo. 203v: 'Dicendum lex contraria \[sc. D. 19.1.21(22).1\] loquitur ubi vendidit simpliciter, nec affirmaverit aliquid. Unde tunc habet locum
distinctio scientiae et ignorantiae, ut ff. e. l. Iul. \[D. 19.1.13(14)pr.\]'.
92 Paulus de Castro, Commentaria, vol. 7, to C. 4.49.9, no. 3, 5, fo. 121: '... distinguitur an scivit... an
ignoravit et tunc non teneatur in aliquo, sed contra hoc ultimum, quod imo teneatur etiam quoniam ignoravit, saltem actione quanto minoris, licet non ad omne interesse extinsecum \[sic\], ut d.l. Jul. circa princ. \[D. 19.1.13(14)pr.\]'; similarly, De Saliceto, In secundam, to D. 21.1.61, p. 690.
93 De Revigny, Lectura super codice, to C. 4.58.4.1, fo. 207v (top left): 'In sciendo casu agitur redhibitoria proprie, ut ff. e. l. etiam \[D. 21.1.49\]'.
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