Warranty in the Coutumes d’Anjou et Maine

Abstract

This chapter provides an overview of how warranty is treated in the 1246 vernacular lawbook, the Coutumes d’Anjou et Maine, which was later incorporated into the 1272/3 Établissement de Saint Louis. The methodology examines usage of the vernacular terms guarant and guarantir within the coutumiers. The main argument of this chapter is that usage of warranty language in the coutumiers is difficult to associate with either of the main narratives historians have used to explain warranty’s development. The most detailed provisions on warranty concern the procedural aspects of summoning a warrantor when accused of the theft of movables. Numerous provisions in the coutumiers also associate warranty with the protection of others from whatever claims for services a lord might make.

The earliest coutumier from western France is the Coutumes d’Anjou et Maine. This anonymous text was written in 1246, and it was later included, with minor modifications and under the new title of the Coutume de Touraine-Anjou, in the text known as the Établissements de Saint Louis, compiled in 1272/3.¹ Though warranty itself is seldom discussed at length in the 1246 coutumier, the language of warranty nevertheless recurs throughout its various provisions. The most detailed concern chattel warranty and accusations of theft. Following such an accusation, the accused can vouch a warrantor (gariseors) to come to a later court date.² At the subsequent term, the warrantor should then ask to see the object he was asked to warrant, otherwise the warranty would be invalid.³ If, following the viewing, the warrantor agreed to warrant the object, then the original accused was dismissed from the suit and the warrantor became solely responsible (and liable) for the case. A warrantor may in turn vouch a warrantor of his own, up to the seventh warrantor. Once the warrantor agrees to warrant, the judge of the case can order a judicial battle between the warrantor and accuser (or their proxies), with the defendant also swearing an oath prior to the duel. If the warrantor should be defeated, he should not lose life or limb because, as the Coutumes explains, he was not accused directly (en chief) of theft (larrecin).⁴ Whichever party lost, though, must pay the costs of the battle, the lawyers’ costs from the day of battle, and a 60s. fine to the court-holder, but nothing else. Crucial in these provisions is that the warrantor takes the place of the original defendant: this type of warranty would come to be identified by the seventeenth century at the latest, in the language of the 1667 Ordonnance civil, as ‘formal warranty’, thereby distinguished from ‘simple warranty’ where the warrantor merely supported the defendant’s case with testimony.⁵ Yet efforts to protect a warrantor from corporeal punishments already evident in the Coutumes d’Anjou et Maine speak to early attention directed towards the logical procedural consequences of warranty in what we would identify as criminal cases. Perceptions of possible differences between ‘criminal’ and ‘civil’ cases may indeed have stimulated sharper conceptual differentiation between ‘formal’ and ‘simple’ warranty—though such is only a hypothesis requiring further research.

Other passages in 1246 text mention warranty in connection with parage, which was a method of preserving the indivisibility of a fief or honor whereby younger siblings held their share of the family property (i.e., the fief) from the eldest sibling, who alone did homage to the overlord of the property and undertook the services that the fief owed.⁶ There were regional variations in the workings of parage. In some regions, younger siblings did homage themselves to their eldest sibling, but in Anjou and Touraine there was not normally any homage between family members: the only homage arising from parage in these regions was that owed to the overlord by the eldest sibling. In the rather oblique passages mentioning warranty in association with parage, the eldest ‘warrants’ his or her siblings. To take an example: ‘If a nobleman has only daughters, each will take as much [from the inheritance] as the others, but the eldest will have the dwelling in addition, along with the vassal (home de foy) if there is one, or, if not, 5s. in rent; and [the eldest] will warrant (garra) the others in parage’.⁷ The implication here is that the eldest provides the services to the overlord, and the younger siblings will be exempt from any disciplinary action that the lord might take should there be a dispute over those services.⁸ A 1254 case brought before the Parlement, concerning Normandy, draws out the relationship between parage and services explicitly. Louis IX (r. 1226–1270) seized land belonging to a man (homo) of the Valliscaulian church of Saint-Michel de Béthencourt, who had absconded to England without royal licence, which raised the question of how the monks were to obtain the services that their man owed. The man’s younger siblings, ‘whom that knight ought to warrant against the church with respect to the services’, refused to do the services ‘which they owed the knight’ to the church instead; this led to the ruling in the Parlement that, ‘according to common usage of Normandy’, the king would see that the services were done (faciet fieri). The important point for our present purposes is the recognition that the monks’ man ought to warrant his siblings specifically with respect to the services: and this presumably served as the basis for those siblings’ refusal to deal directly with the church.⁹

Additional uses of warranty in the Coutumes fall into one of two categories. The first centres on fiscal liabilities. A lord may, for example, ‘warrant’ his sergeant or man from various tolls or services, with warranty here meaning something akin to ‘acquit’ or to ‘exempt’ the individual concerned from any obligation to render such tolls or services.¹⁰ Conversely, lords were prohibited from ‘warranting’ a man from royal obligations of the host or chevauchée, or from payment of a 60s. fine if his man defaulted from the host. Here again warranty has the sense of ‘acquittal’ or ‘exemption’, but in these instances the lord could not protect such an individual from the liabilities concerned.¹¹ The second category involves situations in which a person is required to warrant what he had earlier said or that he had earlier done something, such as deliver a summons.¹² Warranty in such usage amounts to the affirmation of some previous statement or action.

With the exception of its provisions on theft, the 1246 Coutumes does not describe the procedure surrounding warranty, nor does it provide an abstract normative statement as to the scope or content of warranty obligations. Warranty instead—at least based on the usage of warranty language—looks like a rather protean concept, oscillating in meaning between something like protection or ‘backing’ on the one hand, and something broadly like witnessing on the other. In part, this reflects the etymological roots of ‘warranty’. The word, both as verb and noun, comes from Old French (= OF) g(u)arantir and g(u)arant, meaning ‘to protect’ and/or ‘to guarantee the truth of something’.¹³ Warranty has then a double sense, referring to notions of defence and protection, as well as to those of affirming the truth.¹⁴ The word’s semantic breadth gives the language of warranty a flexibility that made it easily adaptable to different concrete situations. This breadth is paralleled in other sources too. For example, warranty language was sometimes used in charters in the sense of affirming something to be true.¹⁵ And in a case heard before the Parlement in 1265, the bishop of Beauvais offered to ‘warrant’ a number of men who had ridden in his cavalcade after those who had suffered losses from the said cavalcade sought restitution from the culprits.¹⁶

There is an underlying root that deserves emphasis from the 1246 Coutumes’ treatment of warranty, however, and that is the association between warranty and practices of lordship. This is particularly apparent when thinking about parage. But equally, the capacity of a lord to exempt certain of his followers from tolls and payments forms part of the same broad nexus of seigneurial relations. From this branches another common root in the Coutumes: warranty was connected to situations in which an individual could incur liabilities for acts of wrong-doing. The point is most obvious in the act of naming and summoning a warrantor (i.e., ‘to vouch a warrantor’) when faced with an accusation of theft. Yet even in situations of parage, for example, liabilities for the potential non-performance of services were concentrated in the person of the eldest who incurred said liabilities on behalf of his siblings. Exemptions from tolls similarly carried an implicit protection from any liabilities arising from a failure to deliver those tolls in the first place. And the fact that lords could not warrant their hommes coutumiers from royal fines of 60s. for the failure to march in the royal host speaks equally to a connection between warranty and wrong-doing. How we characterise the various liabilities against which a warrantor sought to protect those under his/her warranty is a delicate task: there is a clear delictual element to some of them, but more broadly, these all look like situations in which an individual could be subject to disciplinary action but for which modern labels of delict or crime seem inappropriate.

The final point to mention about the 1246 Coutumes is what it does not say about warranty. We do not find warranty discussed specifically in connection with sales or the alienatory powers of the individual vis-à-vis his or her kin. After the 1246 Coutumes had been incorporated into the Établissements de Saint Louis in 1272/3, during which it was embellished with various allusions and references to ‘written law’ (i.e., Roman law), it is equally telling that we do not find any such allusions in those passages where warranty refers to either a relationship (as in parage) or an obligation (as in chattel warranty). The association between warranty/garantie and concepts found in Roman law had yet to be made in this particular corpus of vernacular legal literature. Even by the time of the 1437 Coutumes d’Anjou et Maine selon les rubriques du Code, the integration of warranty into the framework of Roman law still seems rather tenuous. Although the lengthy provision on theft and chattel warranty from the 1246 Coutumes was placed some two centuries later in 1437 under the rubric ‘De evictions’, the only Romanist elements of the ensuing discussion spread over sixteen chapters are the rubric itself and the first chapter of the section which provides a definition of ‘eviction’.¹⁷ In short, the evidence of Angevin coutumiers raises questions about wider explanations for both the meaning and development of warranty as found in the historiography. As we move now to the charters, we shall have further occasion to raise similar questions.