Warranty in the Charters

Abstract

This chapter offers an overview of how warranty clauses appear in charters. It draws on Dominique Barthélemy’s influential model to outline the major documentary changes of the period covered in the study, the first occurring around the mid-eleventh century and the second in the early decades of the thirteenth. It discusses the language of warranty obligations throughout this period, and some of the ways it changed. It also considers the influence of Roman law upon the composition of thirteenth-century warranty clauses. Overall, it suggests that the influence of Roman law was minimal.

Let us turn now to charters and the warranty clauses they sometimes include that outline the commitments that an alienor (or others on the alienor’s behalf) made towards an alienee. Such clauses show us that the ideal-typical warranty of land was comprised of two fundamental commitments, and a possible third: (1) to defend an alienee from outside challenge; (2) to provide material redress if the warrantor should fail in his or her defence; and, possibly, (3) to not take back the alienated property. The first two commitments represent ‘positive’ obligations, whilst the last amounts to a ‘negative’ one.¹ The principles underlying each commitment are straightforward, although there was naturally scope for debate over the practical circumstances in which each might apply. Further, not all such commitments appeared in charters together, nor in equal measure. Commitments of defence thus appeared more frequently than those of redress, and both defence and redress featured more regularly than commitments of non-contravention—at least until c.1200 when clauses of non-contravention where an individual promised ‘not to come against’ (non veniret) his or her alienation became more common.² Whether this ‘negative’ aspect should be considered a part of warranty is less certain. It may be that the association between ‘positive’ promises of warranty and the ‘negative’ commitments of non-contravention that became marked after 1200 was the result of a serendipitous diplomatic relationship, rather than having any conceptual foundation within warranty ideas themselves. It is surely significant that early promises of non-contravention tend to survive in quitclaims, where securing an explicit promise that the quitclaimant would not act against an agreement that had just been hammered out makes practical sense.³

Warranty commitments were included in charters recording a wide range of transactions. Donations, sales, quitclaims, exchanges, confirmations, mortgages, enfeoffments: all could be and were warranted, though the ecclesiastical (primarily monastic) provenance of the charters during much of this period skews the evidence towards a high proportion of transactions recorded in the terms of donation. That churchmen preferred to register property exchanges in the languages of the gift should not however be taken to mean that individuals during this period were unfamiliar with other types of exchange. Similarly, alienors warranted a wide range of different types of property, including arable, vineyards, woodland, waterways, rents and/or customs (consuetudines), or serfs.⁴ Equally important, because warranty commitments were given in connection with any form of property transfer imaginable, their history should not be tied to the history of any one type of alienation: rather, the ideal-typical warranty may represent one of Professor Milsom’s ‘elementary legal ideas’, as opposed to any specific legal rule.⁵ Warranty may thus represent something that is foundational within any legal order, and which concerns the commitments arising between two or more parties during and after the exchange of goods, whether chattels or landed resources, and regardless of whatever juridical form that the transfer of goods might take.⁶

Elementary though they may be, warranty concepts in western France were of course historically contingent, and among the more immediate contingencies were the circumstances of documentary production that gave rise to our charters and the warranty clauses that they recorded. The diplomatic history of the period under consideration in this study can be characterised by two large-scale documentary transformations, or mutations documentaires in the words of Dominique Barthélemy’s influential analysis.⁷ The first of these occurred around the middle decades of the eleventh century, when monastic scriptoria became the principal centres of documentary production and archival preservation. The monastic writing takeover marked a rupture with older documentary forms—the main consequence of this rupture was the appearance of a relatively fluid diplomatic structure punctuated with detailed narrative descriptions of social practices.⁸ As we shall see in the following chapter, the development of warranty clauses is closely associated with descriptions of social practices like the oaths and verbal engagements alienors undertook as part of property transactions. It is highly improbable that such commitments—and the practice of making them verbally or securing them by oath—were new in the 1040s, suddenly emerging fully formed like Pallas Athene.⁹ Rather, the significance of this first mutation documentaire consists in the fact that the recording of such engagements in writing, sometimes even employing warranty terminology lifted directly from the vernacular (i.e., Latinised cognates of garant/garantir), was a new development from about the 1040s. The reasons for why scribes chose at this point to record warranty clauses will need to be understood, at least in part, in light of monastic documentary practices and the goals that monasteries sought to achieve through their archival practices.

More broadly, the heterogeneous contexts of eleventh- and earlier twelfth-century documentary production are important insofar as they go a long way towards accounting for the seemingly wide variety in the composition of warranty clauses and in the language that they used, which raises obvious questions as to whether all such phrases necessarily refer to warranty. An admittedly crude index of this compositional diversity lies in the number of different verbs used to convey these obligations.¹⁰ To take just a selection from some of the more frequent of these: warranty obligations could be expressed as ‘to acquit’ (adquietare),¹¹ ‘to make quit’ (facere quietum) or ‘to give back, quit’ (reddere quietum) or minor variants,¹² ‘to defend’ (defendere or defensare),¹³ ‘to protect’ (protegere or tueri),¹⁴ ‘to keep safe’ (tutari),¹⁵ ‘to guard’ (custodire),¹⁶ or ‘to aid’ (auxiliari or (ad)juvare).¹⁷ This is not to say that Latinised vernacular cognates for warranty (garant/garantir) are lacking in the charters, but they nevertheless remained less common than the terms just listed prior to c.1200.¹⁸

Quite what significance should be attached to this fact, as well as to the range of different possible verbs used to express warranty or warranty-like commitments, is less clear, however. The novelty of recording warranty clauses from the c.1040s must have presented a challenge for scribes who were tasked with writing down such clauses in an appropriate form.¹⁹ Scribes likely searched for models on which they could base their warranty clauses. The sanction clauses found in charters offered one such exemplar.²⁰ Further, verbs of defence and protection suggest that the composition of warranty clauses may have sometimes borrowed from the language of commendation and oaths of fidelity. For example, in 1140, Philip de Gouet issued a charter detailing the resolution of a dispute between himself and the men of Lavalé, who were under his protection (custodia), and which opened with the following statement: ‘I [Philip] have to guard (custodire) and warrant (garentire) the men of Lavalé, and to defend them everywhere and from everything to the best of my ability, as if they were my own men; in return for my protection, they pay me 40s. angevins each year at the feast of St Nicolas’.²¹ Likewise, some charters explicitly tell us that an alienor’s promise of warranty took the form of an oath of fidelity. In 1059, for instance, Hugh son of Theodolin sold a church to the monks of La Trinité de Vendôme for 27li., and agreed that he would ‘drive back’ any subsequent challenge; then, however, Hugh became the man (homo) of Abbot Oderic and swore ‘by the true purity of fidelity’ that he would free this church from any challenge, ‘just as he had promised’ he would.²²

While a complete diplomatic analysis is unfortunately beyond the scope of this study, it remains important to stress that scribes needed to create a diplomatic of warranty in the first place. That this proceeded in an apparently haphazard manner should not surprise us, because much of the linguistic diversity we see in the warranty clauses no doubt reflects genuine scribal experimentation. There are occasional chance survivals in which the same transaction and its warranty commitments were recorded in separate charters, in which one version used actual warranty language, whereas another version did not.²³ Added to such examples are questions concerning the locus of production for any individual charter, and whether a document was produced at an abbey’s dependent priory or within the scriptorium of the mother house. Possible differences between local and central documentary production may account for the usage or not of specific words and phrases. Related to this, if warranty clauses are approached on the basis of individual religious houses—that is, scriptorium by scriptorium—there may be far more internal consistency than a holistic snapshot implies. The abbey of Marmoutier, for example, is thought to have used formularies from the mid-eleventh century, and it is probable that other houses did too.²⁴ Teasing out the relationship between these possible in-house formularies and the warranty clauses of different ecclesiastical scriptoria would be a delicate task, but one that may reveal preferences for particular verbs and phrases that varied from house to house. And for comparative purposes, a similar linguistic diversity in the composition of warranty clauses also characterises charters produced in the Anglo-Norman realm during the eleventh and twelfth centuries.²⁵

More consistent linguistic usage and more clearly standardised diplomatic forms, both of which contribute to an image of greater conceptual cohesiveness, nevertheless become especially marked following the second documentary transformation, which took place in the decades on either side of 1200.²⁶ One of its essential characteristics was the ‘advent of the learned style’: that is, evidence for the influence of new forms of Roman legal learning and expertise upon the composition of western French charters (as opposed to the wider spread of such learning which antedates the demonstrable influence that such learning had upon charter composition).²⁷ As with the first transformation, this second one too was associated with a change in the principal forums of documentary production. Thus the changes around 1200 remain closely tied to the emergence of the so-called juridictions gracieuses: that is, the forums of non-contentious jurisdiction by whose ‘public’ authority an individual’s property transaction might be ratified.²⁸ Chief here was the officialité, an ecclesiastical institution staffed by an officialis curiae of a bishop or archdeacon and to which was delegated much ecclesiastical business, including the production of charters recording property transactions.²⁹ Documents produced in the officialités often took the following form: N. appeared in the presence of the officialis and confessed or recognised (the confessio in jure) that she/he had made such-and-such a sale, or donation, etc. These documents were fairly consistent in their broad outlines: this partly reflects the use of formularies within the officialités, and partly reflects the officials’ roughly shared pedagogical formation that could exercise a standardising influence on charter formulas. A background of expertise and learning helps account for the increasing standardisation of documentary forms produced by lay chanceries as well. While the documentary authority of lay figures—and to a degree the officialités of the northern and western France—resided primarily in the seals attached to charters (as opposed to the public notaries of southern France), the consolidation of lay juridictions gracieuses nevertheless also exerted a standardising influence on documentary forms.

The key development for warranty flowing from this second documentary transformation was the integration of warranty clauses into formulas and clauses increasingly reflective of the influence of legal learning and the nascent ius commune. Roman law’s effect upon the composition of warranty clauses can be traced in part through new vocabulary.³⁰ From the 1240s, for example, we find the first mentions whereby the alienor guaranteed the alienee against eviction (evincere); though extremely rare, the choice of the language of ‘eviction’ framed warranty in the terms of the Code, 8, 44 (De evictionibus).³¹ It is also from the 1250s that we find a warranty clause introduced with the Romanist phrase ‘by lawful stipulation’ (per stipulationem legitimam),³² while a charter from 1239/40 refers to the ‘penalty of double’ (i.e., double the payment price) in connection with a warranty clause, an allusion to the stipulatio duplae of Roman law.³³ Clauses after c.1200, moreover, tended increasingly to frame provisions for the alienee’s material redress through Roman-inspired ideas of hypothecation, whereby a debtor committed his entire substance—but retained control over it—as a real surety to cover a creditor’s potential loss. Within warranty clauses, such ideas came in the form of the obligatio bonorum.³⁴ In an example from 1255, Oliver de Rivarennes obligated himself and ‘all his goods wherever they may be’ to the monks of Saint-Julien as a commitment to hold fast to his agreement.³⁵ These clauses typically obligated the alienor, the alienor’s heirs, and all their movables and immovables (mobilia et immobilia), sometimes explicitly given in contraplegium. While such language implicitly framed the warrantor-alienee relationship as one of debtor-creditor, the degree to which this language entailed any fundamental shift in how contemporaries understood warranty is less certain.

The influence of Roman legal language and ideas is especially apparent in an additional type of clause in thirteenth-century charters that became common after 1250, to which an alienor’s warranty was sometimes attached: the renunciation clause.³⁶ Let us take an example. In 1263/4, Bernard de la Ferté and his wife Joanna made a gift to the abbey of Tiron which they warranted, included the obligatio bonorum, and then made the following renunciation: ‘we renounce for ourselves and our heirs in this act any exception and deception, any usage and custom, and any aid both in deed and law, canon or civil, and any statute already made or to be made, any privilege of the cross already granted or to be granted, and generally all forms of support or benefit pertinent to us or our heirs, now or in the future, by which we or our heirs might contravene the aforesaid, in whole or in part’.³⁷ Renunciation clauses varied in length and detail. Some mention that an alienor renounced specific exceptions by which she/he might at some later date try to nullify whatever the transaction in question, the most common of which was the exceptio pecuniae non numeratae.³⁸ The exceptio pecuniae non numeratae referred to the argument that a vendor could extricate himself or herself from a sale on the grounds that the payment price had yet to be delivered; this exceptio came, it seems, from the Code, 4, 30 (De non numerata pecunia). Other renunciations were more general, cataloguing any source of law by which a transaction might be undone, whether that be canon or civil law, statute or privilege (papal, royal, princely), or the usage and custom of lay courts.³⁹ And although renunciation clauses were more common than warranty clauses—many charters include renunciations, but no warranties, for example—the association between renunciation and warranty found in some charters provides a tantalising glimpse of the legal world in which thirteenth-century warrantors found themselves. Renouncing the benefits of any jurisdiction and law points towards the threats posed by legal professionals in helping clients wangle out of their agreements. The shift we witness here concerns the dangers to which warranty was orientated, rather than a shift in the substantive ideas of warranty.

Indeed, amidst the background of legal learning and Roman law, it is important to underline that the core of thirteenth-century warranty clauses centred on the verb garantizare (and its orthographical variants), which was patently not a Roman legal term or concept. Although warranty terminology derived from the vernacular is found in charters from the eleventh and twelfth centuries, such terms only became common in thirteenth-century documents.⁴⁰ In the published charters of La Madeleine de Châteaudun, for instance, nearly 82% of sixty warranty clauses dating between 1200 and 1270 used garantire, garantizare, etc.; and nearly all of the clauses without vernacular-based terms of warranty were promises of non-contravention, rather than those of defence or protection.⁴¹ Equally, within the Liber Albus of Saint-Julien du Mans, of the ninety clauses over the same period, vernacular-based warranty language appears in a staggering 95.5% of them.⁴² Amidst, therefore, a background of scribal professionalisation and increasing erudition, the conceptual nucleus of warranty was not translated into the language of Roman law: warranty itself continued to be expressed in the Latinised language of vernacular law. Whether this implies that OF g(u)arantir and its Latin equivalent of garantizare were in a sense untranslatable into the language of Roman law is difficult to know. What does seem clear is that the semantic breadth of OF g(u)arantir best suited thirteenth-century scribes’ efforts at expressing warranty obligations.

One final point needs to be made on the diplomatic contexts of warranty clauses. Such clauses sometimes included phrases that pointed towards regional customs. From the 1230s, for example, alienors sometimes warranted their transactions ‘according to the general custom’ (secundum consuetudinem patrie generalem) or ‘according to the usages and customs’ (ad usus et consuetudines) of such-and-such a territory. Often the envisaged territory was described simply with the generic term patria, a difficult word to translate but which, in the present contexts, probably meant little more than ‘region’.⁴³ Sometimes the references to regional customs were far more specific. Thus we find warranty clauses given according to the usages and customs of Anjou in the 1280s, of Bellême in the 1260s and 1270s, of Châteaudun in the late 1240s and 1250s, and of Normandy in the early 1240s.⁴⁴ References to regional customs in charters were of course not limited to warranty clauses.⁴⁵ Formulas such as consuetudo patrie or ad usus et consuetudines developed within France from the later twelfth century onwards, particularly during the reign of Philip Augustus (r. 1180–1223).⁴⁶ Such phrases are thought to reflect the symbiotic combination of the growth of territorial principalities, including that of the kingdom of France, on the one hand, and the developing awareness of distinctive regional customary identities appropriate to each political unit on the other.⁴⁷ Yet as Olivier-Martin had long ago noted in his study on the custom of Paris, the formula ad usus et consuetudines appeared with particular frequency in warranty clauses.⁴⁸ The point applies equally to western France. Consider, for example, the published charters of La Maison-Dieu of Châteaudun: out of all instances of the phrase ad usus et consuetudines found in thirteenth-century charters, a staggering 94% of them are found in connection with warranty clauses specifically.⁴⁹ Moreover, the formula finds occasional echoes in the coutumiers specifically in the context of warranty. Pierre de Fontaines, for example, in his 1253 Conseil à un ami, imagined a situation whereby N. sold his inheritance (éritage) and agreed to warrant the purchasers selonc les us et les costumes du païs.⁵⁰

Interpreting the phrase ad usus et consuetudines is far from straightforward, however. It may indeed refer to differences in how separate jurisdictions dealt with the procedural and, perhaps, the substantive rules around warranty. To take an obvious example, one may think of different provisions for the chain of warranty: within Anjou-Maine, for instance, warrantors could vouch subsequent warrantors up to a seventh individual; in Normandy, in contrast, the chain of warranty was extended only to the third individual.⁵¹ Yet the phrase ad usus et consuetudines may also have acquired meaning in the context of growing legal professionalisation, whose influence upon the drafting of thirteenth-century charters we have already hinted at. Since warranty remained a concept deeply embedded, linguistically at least, in the world of vernacular customary law, anchoring warranty concepts to the ‘usages and customs’ of such-and-such a region may have been a way of explaining and identifying the provenance of this particular rule and its associated ideas. The phrase may be compared to statements found in some renunciation clauses that so-and-so renounced any recourse to civil and canon law on the one hand, and any recourse to the usage or custom of lay courts on the other. Ad usus et consuetudines, following this line of reasoning, may refer less to regional variations in procedural or substantive rules, and refer instead to the legal foundations of a particular concept that was not located easily in the texts of civil law, but which could be identified as a customary legal rule—taking ‘custom’ as defined within Roman law and the ius commune—and thus brought into an integrated vision of legal order. Put differently, the phrase can perhaps be taken in a more literal sense: warranty forms a set of rules and practices whose normative foundations are found in the custom of lay courts specifically, rather than in the texts of written law.

Reconstructing the history of warranty in western France largely relies on the evidence provided by charters. Any interpretation of that evidence necessarily requires a solid understanding of the documentary contexts in which charters were produced, and how such contexts shape the interpretative possibilities allowed by the evidence. Towards the start of our period when warranty clauses begin to survive, the 1030s and 1040s, charter production in western France had become firmly embedded in the monastic scriptorium. We thus see warranty through the varied eyes of the beneficiaries of property transactions and the warranty promises sometimes made to accompany them. Although we find commonalities in their expression, there was no set diplomatic of warranty clauses; instead, the written expressions of warranty reflect the local circumstances of charter production, with all the variability such a statement implies. Only in the decades around 1200 with the emergence of increasingly professional secretariats—the officialités of ecclesiastical jurisdictions and their lay equivalents—do we begin to see the development of a standardised diplomatic of warranty clauses. This diplomatic displays obvious signs of the influence of learned law in the composition of warranty clauses, but it remains vital to emphasise that diplomatic standardisation also witnessed the triumph of the vernacular-derived garantizare as the primary and often exclusive verb of warranty. Coupled with the increasing prominence of references to regional customs, the charter context of thirteenth-century warranty may well demonstrate the maturation of warranty as a distinctive set of concepts and practices of ‘customary’ law, as this latter became more and more sharply differentiated from the frameworks of Roman (and canon) law.