Introduction

Abstract

The introduction makes three points to frame this study. First, French legal-historical scholarship views warranty in terms of the garantie d’éviction, a contractual obligation that remains deeply indebted to terms and concepts drawn from Roman law. Second, warranty has also viewed largely as a thirteenth-century development, thought to reflect the emergence of the individual’s right to alienate property with relative freedom from restrictions imposed by kin and/or lords. Third, the role of lordship in giving shape to warranty has been severely neglected in French legal-historical scholarship, which differs sharply from how scholarship examining warranty in the Anglo-Norman realm has approached the subject. I lay out therefore the basic questions that run throughout the study, which ultimately concern how we understand the causality of legal change in the central Middle Ages.

This book examines the nature of warranty obligations in western France during the central Middle Ages, and uses them as a case-study to consider larger questions about custom, lordship, and legal change. Warranty refers to the commitments undertaken by an individual when alienating property to support the alienee against challenges to the transferred property. Evidence for such commitments first appears in western French charters from the 1040s and 1050s. Whilst the frequency with which warranty obligations were explicitly promised in the charters should not be overstated, we nevertheless have from the mid-eleventh century a more or less continuous documentary tradition that continues well into the thirteenth century and beyond. Added to this is an abundant corpus of case material, also surviving primarily in charters (and with a particular density for the period c.1050–c.1150), which shows how warranty could work in practice. Further case evidence is found in the records of the French royal court, the Parlement, which start from 1254 and help flesh out our view of thirteenth-century warranty. Finally, western France also supplies an early coutumier, the anonymous 1246 Coutumes d’Anjou et Maine, which stands at the head of a long tradition of producing vernacular legal literature of customary law in the region. Warranty unsurprisingly features in this literary tradition, thus rounding out our understanding of warranty obligations in western France.

Despite a wealth of evidence, the history of warranty in western France from the 1040s through to the 1270s has yet to be written. The immediate goal of the present study, therefore, is to provide an in-depth study of a neglected but important component of legal culture. In so doing, we shall reconsider some of the key themes of the legal history of France during the central Middle Ages. Chief among these are the nature of custom in this period, the relationship between political structures and legal culture, and the role played by Roman law as a key driver of legal change. The central contention of this book is that approaching warranty obligations from the idées reçues about custom, political structures, and the importance of Roman law have led to a fundamental misunderstanding of warranty, both in definitional terms and in terms of how we explain developments in the practice of warranty. In the argument that will unfold, we shall see that the history of warranty obligations, in western France at least, is inseparable from that of lordship, of the seigneurie. Teasing out how these two histories are intertwined, and reflecting on what this can tell us about law and custom during this period, constitute the main themes of this study.

Known in modern scholarship as garanties contre l’éviction, warranty in France has received only limited scholarly attention. Usually discussed in the context of sales, warranty has been approached as an obligation incurred by a vendor to protect his or her purchasers against lawful eviction by third parties.¹ Much of the commentary given to the subject remains descriptive, seeking to reconstruct the scope of warranty on the basis of the diplomatic formulas found in charters and which express such commitments—primarily those surviving from the thirteenth century onwards.² Far less comment has been directed towards interpretative questions about warranty’s origins or how it changed over time. Despite this, two larger narratives have nevertheless shaped historians’ understanding of warranty: (1) the influence of Roman law and (2) the growth of individual proprietary rights of alienation.

The terms and categories of Roman law have provided the basic analytical framework through which scholars have approached warranty. The foundations here centre on three terms: eviction (evictio), that is, when a third party claims and establishes in court ownership of something from a purchaser; stipulations (stipulationes), verbal commitments given by the vendor to protect the purchaser against eviction; and the actions and remedies available to the purchaser against the vendor (known in such circumstances as the auctor) in the case of eviction.³ Of the stipulations that sellers might make, these included, among others, the simple agreements to ensure the buyer’s peaceful enjoyment of the thing that had been sold (the stipulatio evictionis) or the agreement to repay double the payment price to the evicted purchasers (the stipulatio duplae). More broadly, based on the organisational schema of Roman law offered by the Corpus of Justinian, stipulationes are placed amidst discussion of obligations, which naturally includes contractual obligations linked to sale (emptio-venditio) and the risk of evictio. Warranty/garantie has, accordingly, been viewed through the above terms and categories, even though the word ‘warranty’ has no basis in the texts of Roman law. Even so, numerous jurists since at least the sixteenth century have assimilated garantie into this Romanist framework. In the influential Glossaire de droit français (1704), for example, Eusèbe de Laurière’s edition of François Ragueau’s 1583 Indice des droits royaux et seigneuriaux, the words for warranty were explicitly framed in terms from Roman law.⁴ Le garent (warrantor) was defined as the Roman law auctor; and under the entry for garantir (to warrant), the Glossaire quotes Jacques Cujas (Ragueau was Cujas’ student and succeeded him as professor of law at Bourges): ‘this ancient Germanic word, guarent, signifies the auctor who is liable against eviction, and who indemnifies the eviction’.⁵ The modern garantie d’éviction is itself a juristic portmanteau, the by-product of efforts at integrating warranty into the framework of Roman law.

Approaching warranty/garantie through a Romanist lens has had practical consequences for how many scholars have dealt with medieval evidence of warranty commitments. In methodological terms, discussion has largely focused on the degree of convergence or divergence with Roman law by tracing the use of terms like auctor, evictio, or stipulatio. For example, the phrase stipulatio subnixa, found in the formularies from the early Middle Ages, such as the Formulary of Angers, Formulary of Marculf, and the Formulary of Tours, as well as in charters from France (and elsewhere) until (roughly) the late tenth century, has been taken by some as important evidence for the survival of Roman law stipulationes which sought to protect purchasers against eviction.⁶ Likewise, the resurgence of similar terminology in thirteenth-century documents has, unsurprisingly, been tied to the renewed influence of Roman law on legal culture, though opinions have differed over whether thirteenth-century stipulationes reflect genuine legal change in how obligations were conceptualised, or if such linguistic changes were mainly cosmetic.⁷ Roman law, and the garantie d’éviction that early modern and later jurists fabricated out of it, has nevertheless supplied the benchmark when assessing medieval evidence for warranty.⁸ One of the principal interpretative questions has centred on the extent of Roman law’s influence, or ‘penetration’, upon the ideas and practices of warranty during the central Middle Ages, an approach that often presupposes a sharp disjuncture between contract in customary law versus Roman contract law.⁹ In this respect, garanties d’éviction represent a microcosm of much larger (and acrimonious) debates over the relationship between Roman law and so-called ancien droit français or droit coutumier.¹⁰

Warranty has also been linked to another grand narrative, this one about the emergence of individual proprietary rights of alienation. Put simply, this narrative centres on the gradual liberation of the individual from restrictions upon the alienation of property imposed by kin and/or lords.¹¹ To take kin-based restrictions on alienation: familial interests in property required the individual to obtain the consent of his or her family members whenever making an alienation, a practice known as the laudatio parentum. The laudatio, so the argument goes, effectively retarded the development of warranty because alienors could not effectively warrant transfers of property against the rights of family members, particularly against their living and/or unborn heirs. The ambiguities surrounding questions of when and by whom was familial consent necessary at the occasion of property transfers meant that the rights of kin in practice often outweighed the capacity of the individual to undertake binding commitments to protect an alienee against such rights. Only with the apparent decline of the laudatio did people acquire the ability to impose binding obligations on their heirs that were henceforth enforceable in court. Growing out of the laudatio, moreover, were supposedly new legal rules designed to protect familial interests, providing greater clarity regarding the rights of individuals vis-à-vis their kin: the retrait lignager, or the right of family members to buy back (redeem) property alienated out of the patrimony; and the réserve coutumière, a set amount (quotité) of the patrimony destined for heirs and treated as inalienable.¹² Seigneurial restrictions on alienation, although far less studied, have been thought to follow a similar trajectory. Initially, property held from a lord could only be alienated with the lord’s express permission; over the twelfth and thirteenth centuries, seigneurial consents were gradually replaced with nominal payments made to the lord upon the act alienation (the quint denier and the lods et ventes), with explicit consent only required for certain types of alienation to ecclesiastical institutions.¹³ The development of warranty, for some scholars at least, thus signals the relaxation of earlier restrictions on alienation, with the turning point falling in the thirteenth century.

The interpretative frameworks just outlined, it must be stressed, do have foundations in the evidence. For a start, in quantitative terms, warranty clauses were included more regularly in thirteenth-century charters compared to earlier documents. Numbers alone can thus give the impression that the early decades of the thirteenth century constituted a watershed moment in warranty’s history, even though the relationship between earlier warranty clauses and their post-1200 counterparts remains largely unexplored.¹⁴ Likewise, it is from the mid-thirteenth century that the coutumiers start to survive, presenting an overview of property law within the so-called pays de droit coutumier against which the charter evidence can be evaluated and interpreted. The coutumiers do clarify what the individual can and cannot alienate, identifying the quotité and providing the rules to theoretically govern redemptions—the retrait lignager and the retrait féodal. Such texts reveal a delicate balance between individual alienatory rights and protections for the interests of others, whether family or lords. And of course the revival of Roman law and its importance in stimulating the emergence of the ius commune needs little comment nowadays: the influence of Roman law is conspicuous in thirteenth-century charters and coutumiers (even if the significance of this influence is less obvious), to say nothing of the juristic and exegetical works produced out of Paris and Orléans.

And yet, much remains left out of our current frameworks for understanding warranty in France, chief of which concerns the contribution made by the structures and practices of lordship to the subject’s history. In this respect, the history of garanties diverges sharply from the approach to warranty that has developed within the historiography of the early English Common Law. Here, warranty has been treated as an integral component of lordship, describing the relationship between lord and tenant from the tenant’s perspective.¹⁵ In return for the performance of services, a lord ‘seised’ the tenant, that is, put him in seisin with respect to the tenement concerned. The tenant duly seised thus enjoyed his lord’s warranty, which amounted to the lord’s promise to protect the tenant’s seisin from any outside challenge. If the lord’s protection failed, then the tenant acquired a claim to receive an exchange (the excambium) from the lord in compensation for lost tenement. The chronology whereby warranty and lordship had become so closely integrated remains tricky, not least because ideas and practices almost certainly antedate the appearance of those ideas in our evidence.¹⁶ The uncertainties of Stephen’s reign in England probably stimulated the writing down of more warranty clauses in charters, but the process of the coming together of lordship and warranty seems to harken back to the changes effected by the Norman Conquest and settlement.¹⁷ At any rate, by the end of the twelfth century, warranty had become the standard method for portraying tenant right. Much of the interest within English legal history has been on how to characterise the nature of such ‘rights’ and how to understand the transformations effected upon them by the increasing centralisation of royal justice, especially from the 1160s onwards. The debates surrounding these issues are very complex and of less immediate concern here; what matters is the close link between lordship and warranty of land within the English legal historiographical tradition.

The English approach to ‘warranty of land’ thus foregrounds the realities of lordship, and in this respect it diverges from the French garantie d’éviction, a concept indebted to Roman law, as we have seen. We should not, of course, exaggerate the differences. Warranty/garantie both represent protections given to someone from outside challenge, and both may entail some form of compensatory element. That said, the role of lordship in the history of warranty/garantie marks a serious point of contrast, and shapes how each historiographical tradition has dealt with matters of definition, chronology, and change. Warranty and garantie have each been approached with an eye to looking at very different types of social relationship: that between lord-tenant on the one hand, and vendor-purchaser on the other. Where the former imagines a world of personal relations of domination and subordination, the latter envisions the social interactions appropriate to the marketplace. Each type of relationship envisages varying degrees of intensity, of emotional value, and of duration, all of which come into play when assessing what exactly warranty was. Even though each tradition sets out to explain an ostensibly similar legal phenomenon sharing the common language of warranty, the end results are strikingly different: based on their historiographies, warranty of land and garanties d’éviction have very little in common.

This brief historiographical comparison can help us identify some of the underlying assumptions that have framed different approaches to a subject like warranty, and in so doing, help us explore new interpretative paths when looking at warranty in western France. These new paths, it must be stressed, complement and intersect with existing ones: they do not replace them. As noted, the ways in which the history of garanties d’éviction has been told have foundations in the evidence. Similarly, the type of seigneurial relationships described by Milsom (and others) has been subject to severe criticism, and we cannot apply such models unreservedly to our evidence.¹⁸ But we need not look for monocausal or unilinear explanations for the development of legal phenomena. Precisely because it stands at the intersection of two divergent legal-historiographical traditions, each resting on its own presuppositions, warranty represents an ideal case-study when examining the multiple causalities driving legal change in the central Middle Ages. Approaching warranty in search of either the garanties d’éviction of the Romanist tradition or warranty of land in the Common Law tradition risks sacrificing significant features of the evidence in service of the definition itself.¹⁹ In attempting to recapture something of what has been left out of the history of warranty in western France, at least, we can build a more composite, nuanced, and pluralistic account of legal development—at least for one specific topic. And underlying such a task will be a return to the simple but fundamental questions of what warranty is, how it develops, and why it develops the way it does.

This book therefore reconsiders our stories of legal change during the central Middle Ages by using warranty as a case-study. Our story begins in the 1040s, with the first appearance of warranty clauses in the charters from western France; we shall follow this storyline into the 1270s, with the redaction of the immensely popular Établissements de Saint Louis, which included a version of the earlier 1246 Coutumes d’Anjou et Maine. This chronology lets us transcend the boundaries of traditional periodisation and encourages us to search for a narrative—or narratives—that can take us from the 1040s into the later thirteenth century. In so doing, we shall need to evaluate the capacity of existing interpretations to make sense of our evidence. Of particular interest will be the influence of Roman law and whether the framework of garanties d’éviction, and its Romanist roots, remains the most appropriate one when studying warranty. Equally, we shall question how far the development of warranty can or should be associated with the emergence of individual alienatory powers, especially those thought to develop out of changes in family structure. By reconsidering our current explanatory frameworks, this book will emphasise the structures and practices of lordship: within the history of warranty, questions of definition and causality are inseparable from those of lordship. Notoriously difficult to define, I shall take lordship in a broad sense, meaning relations of domination and subordination, along with the practices to which such relations gave rise.²⁰ Such an approach emphasises the multivalence of lordship, reflecting the fact that it meant different things to different people at different times. A large part of our story will address this multivalence and its role in legal change. Equally, it is only through embracing a wide perspective that looks at lordship in its manifold guises that we can start to unpick historiographical assumptions and identify a set of practices and vocabulary that speak to the coherence of warranty as concept. Whether the grand political stage of a count or duke attempting to warrant gifts made to his followers, or the small-scale landholder attempting to secure the permanence of his or her alienations, the range of practices around warranty all reflect a fundamental legal idea whose evolution owes much to the sheer breadth of social contexts in which it was applied.

The regional focus of this study falls on western France, with particular attention given to the counties of Anjou, Maine, Touraine, and the Vendômois, along with occasional ventures into the Chartrain, the Dunois, the Perche, and the Thouarsais.²¹ A wide geographical scope is justified in part by the need to gather a sufficient quantity of evidence with which to study warranty. But it is further justified by the fact that many of the major landholders and religious houses appearing throughout this study had proprietary interests and personal and/or familial relationships that paid little respect for the precise geographical boundaries of individual counties. Furthermore, the region of western France is served by an immensely rich source base. Part of this evidentiary base comprises the thousands of charters produced largely by ecclesiastics, many of which record conflicts and court cases and have, accordingly, been well studied by scholars interested in the formal and informal aspects of disputing.²² Moreover, western France in general, and Anjou in particular, are thought to have developed a relatively precocious shared legal identity from at least the mid-eleventh century that was centred on regional customs.²³ By the mid-thirteenth century, authors from this region were producing some of the earliest surviving vernacular law books (the coutumiers). The Coutumes d’Anjou et Maine can be traced from its first redaction in c.1246 through to its many subsequent modifications and commentaries well into the fifteenth century.²⁴ The richness of this evidence makes it possible to reconstruct a more or less continuous history of warranty that transcends traditional historiographical barriers of periodisation and of different genres of source.

From this evidence, warranty will emerge as a broad constellation of practices that orbit a fundamental concept based on protection and the consequences for when protection fails. We shall encounter warranty as a series of promises and verbal commitments individuals made; equally, we shall see warranty in the guise of a series of legal rules. Warranty sometimes concerns procedure, and might form the basis of arguments deployed by disputants in legal conflict aimed at putting additional pressure on an adversary. Alternatively, warranty might form part of the language through which an individual makes a claim for compensation if he or she is the victim of some wrong, often though not exclusively concerning property. The breadth of warranty as it emerges from the evidence remains impressive, and its practices cut across divisions of class and gender. Yet underpinning—and indeed unifying—this breadth is the fundamental idea of protection. And as such, warranty provides an especially clear lens through which to examine some of our core assumptions about law, legal change, and society during the central Middle Ages.

The organisation of this book is as follows: Chaps. 2 and 3 provide an overview of the general shape of our evidence, looking at the coutumiers and charters respectively. Chapter 4 then examines the practices associated with the actual promising and giving of warranty. We next look in Chap. 5 at how warranty worked in the context of litigation, as well as what happened if a warrantor failed to discharge his or her obligations successfully. Chapter 6 proceeds towards an examination of the targets against whom warranty was ordinarily directed, and for how long an alienor’s warranty was typically valid. A final and brief Chap. 7 will summarise the main findings of this study, and serve as its conclusion.