Securing the Present and the Future: The Targets of Warranty

Abstract

This chapter looks at the people against whom protection was sought and for how long warranty was expected to be valid. It demonstrates that warranty was typically directed ‘against all people’ (contra omnes homines), and that family members were only rarely specifically signalled out as being of particular concern. Further, the tenants and agents of lords posed an especial threat, and I suggest therefore that warranty was in part orientated towards protection against the various claims for services and customs that the lord of an alienor (or his/her deputies) might make on transferred property. The chapter then discusses the temporal duration of warranty. I suggest that people generally expected warranty to be valid for perpetuity, and that an alienor’s heirs were also ordinarily expected to uphold the warranty commitments of their predecessors. In so arguing, I thus further decouple the history of warranty from existing historiographical explanations, and reinforce the associations between warranty and lordship.

The final subjects that require discussion concern the questions of against whom warrantors ordinarily directed their promises of protection, and for how long warrantors and/or their alienees expected the alienor’s warranty to last. The targets against whom alienors directed their warranty were usually expressed in characteristically broad yet imprecise formulas. Typical here were promises that so-and-so would warrant ‘against any challenge’ (de omni calumnia), a formula which may equally be framed in the plural (i.e., de omnibus calumniis) or against challengers (calumpniatoribus);¹ that the warranty would come into action ‘if anyone’ (si quis or si aliquis) brought a challenge;² or simply that the alienor’s warranty was valid ‘against all men’ (contra omnes homines)—sometimes glossed as all ‘mortal’ men (mortales)—or simply ‘against all’ (contra omnes).³ There is little chronological pattern to these formulas, except that thirteenth-century diplomatic seems to have, in general, settled on the contra omnes homines formula.⁴ This no doubt reflects the increasing diplomatic standardisation in drafting practices, a symptom of the coalescence of chanceries and officialités. Beyond this, however, all three principal expressions appear with the first warranty clauses from the 1040s and were henceforth used interchangeably (and sometimes in concert), along with a host minor stylistic variants.⁵

Beneath such expansive phrases, warranty clauses do nevertheless on occasion provide more details regarding the sorts of person against whom the warrantor’s protection was especially desirable. In general, the three main types of threat explicitly mentioned were: (1) the alienor’s kin, (2) the alienor’s tenants, and (3) the services for which the transferred property was liable.

Let us start with family. We sometimes find warrantors securing their alienations ‘from their whole kin-group [omni parentela]’, ‘against all men of his lineage [sue progenie]’, or ‘if any of their relatives [ex parentibus] should bring a challenge’.⁶ Two clauses from c.1115 and 1230 respectively framed the alienor’s warranty against his brothers-in-law; in 1236, one individual warranted against his brother; and a handful of clauses directed the warranty against the alienor’s heirs.⁷ Yet on the whole, references to warranty against the alienor’s living kin remain uncommon. One early clause even saw an individual tell the monks of Saint-Aubin that he would ‘defend them in court against all men’, but only if ‘none of his relatives made a challenge’.⁸ And there are remarkably few extant cases in which a warrantor was called upon to defend an alienation against a family member. Frequently in such cases, the conflict pitted brothers against each other, or an uncle against his nephew(s), suggesting the potential for tensions between lineal and collateral inheritance strategies. But it can be unclear how serious such disputes actually were. In 1115, for example, Pierre challenged the land that his uncle, Jean Pignon, had sold to Fontevraud. When the case was heard in the curia of the bishop of Angers, where Jean was prepared to testify on the nuns’ behalf, Pierre (and his father, Arnoul, because Pierre was too young to speak for himself) was asked the basis for his claim; Arnoul replied that there was none, but the boy’s ‘family’ (familia) had made him challenge ‘foolishly’ (pueriliter) by giving him a small white dog.⁹ This rather sweet vignette speaks as much to underlying intra-familial bickering as it does to legal matters of alienability and inheritance.

Several features of the evidence make clear that an alienor’s tenants posed especial problems for warrantors and/or their alienees. Consider the following two clauses, for example: between 1056 and 1082, one Lisois restored property to the monks of Marmoutier, and promised ‘to warrant it against those [tenants] who hold something from it’; while nearly two centuries later, in 1232/3, Jean d’Alluyes abandoned tithes to La Trinité de Vendôme, and promised to warrant if any of his men (hominum) should disturb the monks.¹⁰ Implicit in such promises is the idea that the alienee, in theory at least, acquired an exclusive proprietary interest in the transferred property. I use exclusive here in a physical sense, meaning that access to the property was limited to the alienee and those individuals allowed to enter by the alienee’s licence. One clause from c.1090 makes the point explicit: Simon de Nouâtre gave the monks of Noyers some land, promising to offer them all aid lest that land be worked by anyone other than monks.¹¹ The implication that follows from such a statement is that the transfer of property during our period might involve the dispossession of current occupants. Such a suggestion is certainly supported by a provision in the 1246 Coutumes that if a lord wishes to take some land from his tenant in order to build upon it, then he must beforehand give the tenant an exchange (change)—a provision that could without much imagination have been extended to the lord’s taking land for the purposes of pious benefaction.¹²

The case material, in particular, showcases the problems that an alienor’s tenants could pose. Between 1096 and 1102, for example, Renaud de Craon gave the then fledgling community of La Roë sylvan rights in his forests; but one day, two of his foresters seized an axe from Humbert, a hermit, who then proceeded to complain to Renaud that unless he defend his earlier gift, he would cease developing a religious community in the region, and leave it altogether.¹³ Renaud replied that ‘he was unable to give [dare] the fief of his foresters’, so he instead fixed a date for them at which Renaud asked his men: ‘O, you foresters—my friends—just as I need to give this alms for myself, my ancestors and my heirs, so too do you need to make [a gift of] alms from what is in your right [jure]’, which seems to have convinced the men.¹⁴ The story opens a window onto the sorts of cajoling that must have been fairly common in land transactions as all the parties involved worked out how best to reconfigure the various rights and easements created by the alienation. Such concerns must have been especially pronounced in the alienation of landed resources that by necessity were used by a large number of people, like woodland, waterways, or meadows. In a case from 1231, Robert de Chavernay claimed a meadow from the monks of La Trinité de Vendôme that had been given to them by Urso de Fréteval. Robert claimed to hold this from Urso’s fief and therefore, Urso ought to warrant him; in the settlement arranged by Urso, Robert was allowed to hold the contested meadow from La Trinité, and Urso, in compensation to the abbey, gave them another batch of meadows, relinquishing all usage and right in them.¹⁵

This last case also illustrates one of the solutions to the problems posed by an alienor’s tenants: to transfer lordship over them to the new alienee.¹⁶ Yet such a strategy, known by the thirteenth century as attornment, was not without risk.¹⁷ In the early twelfth century, for example, a lord claimed a fief from the nuns of Fontevraud that his father had given them: he did so because the occupant of the fief did not want to hold his said fief from Robert d’Arbrissel, the colourfully eccentric founder of Fontevraud.¹⁸ Another potential solution, therefore, was for warrantors to exclude certain of their men from their alienations and their warranty. Thus in 1265/6 Bernard de la Ferté and his wife sold the abbey of Tiron whatever they had at a specific village ‘except for the men who have been given a fief and hold [those fiefs] from us in return for a pledge of faith (ad fidem)’, perhaps in the hopes of convincing them at a later date to abandon their shares.¹⁹ Finally, the practice whereby alienors handed out an exchange (excambium) to one or more of their tenants when making an alienation represents yet another possible strategy. Though this too entailed risks, as tenants sometimes disturbed alienees when their lords failed to deliver long-awaited exchanges. Thus between 1038 and 1055 Aimery, the prévôt of Thouars (not to be confused with the vicomte of the same name), claimed a toll from the monks of Saint-Aubin which Renaud Cabot had given to them: the basis of Aimery’s challenge was that because Renaud had given this toll to him in fief (in fevo), he had been promised an exchange when Renaud made his gift to the monks, but had yet to receive it.²⁰ Situations where the alienor’s tenants were seigneurial agents, such as Aimery the prévôt, and whose main income may have come from the various customs that they collected for their lord, may have presented especially tricky situations. Not only could the lord’s alienation represent a material loss to the agent concerned (at least if the lord’s alienation allowed his or her new alienee the right to collect said customs, instead of the agent as before), but may also have represented a diminution in social status for the agent, who could no longer tangibly display his lordship over the local inhabitants with respect to the particular property concerned.

Of particular concern for warrantors and alienees regarding tenants were the tenants’ heirs. Take the following two cases. Between 1060 and 1067, Thibaud de Jarzé made a gift to the monks of Saint-Aubin of an expanse of woodland, but because Thibaud’s vicarius held rights in the woodland ‘from Thibaud himself, as his own’, the monks offered the vicarius payments in money and kind, whereupon he relinquished his share to the abbey.²¹ Some years later, however, the vicarius’ son made a claim upon this same woodland whence the late Thibaud’s widow, Adenor, confronted the claimant in her efforts to warrant the monks, and in the ensuing confrontation, several men were injured, and others slain.²² And second: sometime before 1100 an unnamed man (homo) held a half arpent of vineyards from two lords at rent, but he failed to pay his rents, whence the lords took the vineyard back into their control (proprietas) and made a gift of it to the monks of Saint-Serge. Later, though, Goscelin Britellus, the son of the erstwhile tenant, reclaimed this half arpent, whereupon the monks vouched their warrantors (warantos), but they were unable to acquit the vineyard, and so gave the monks the rents and renders from that vineyard.²³

The position of an alienor’s tenants leads neatly into the third main type of threat warrantor’s sought to protect their alienees from: burdensome or excessive services. Explicit statements that the warrantor would acquit the transferred property of all services appear from the mid-twelfth century, though concerns over the quantum of services, and who was responsible for them, antedate these express statements. For example, between 1156 and 1162, an alienor protected against ‘all customs and services’; in c.1178, another alienor promised defence ‘from any service’; while between 1191 and 1220, defence was given ‘from any violence and exaction’.²⁴ For ecclesiastical alienees, at least, especially important here was that alienors undertake the military services owed to the lord of the land.²⁵ Alienors could thus promise to perform such services specifically, like one alienor to La Roë who promised the canons that he and his heirs would defend them ‘in perpetuity’ from the ‘military service’, and ‘if not with monies, then by horse and arms’.²⁶ The acquittance of services, or the defence from excessive services, was naturally directed both upwards and downwards. Alienors would commit to perform the services owed to the superior lords of such-and-such a property, or, as we have seen, alienors’ warranty would extend downwards to protect the transferred property from the lord’s own men. By the thirteenth century, when warranty clauses included formulas that the alienor’s lord warranted tanquam or ut dominus feodi, often at the principal’s request, all of the parties involved likely had in mind concerns over the services due from the land.

The issues of service are important for our understanding of warranty during this period. Negotiations between alienor and alienee over the performance of services likely accounts for the reservations that alienors sometimes made that sought to limit certain of their obligations. For example, when a husband and wife made a donation to Fontevraud of a censive that they had purchased from Fulk V, count of Anjou (r. 1109–1129), they wholly warranted their gift, ‘except against the count and the violence [violencia] of the count’.²⁷ The oblique reference to violentia here likely alludes to exactions and/or customs. And some thirteenth-century clauses explicitly preclude the rights of the French king from their warranties: in 1236, a miles warranted against all, ‘saving the right of our lord the king’; and in 1265/6, a husband and wife warranted their sale against everyone ‘except for the king of France’, and except for the heirs of Pertico.²⁸ Thirteenth-century diplomatic also witnessed the emergence of a new formula inserted into clauses, namely that the warranty was valid against all men, but only ‘as much as law dictates’ (quantum jus dictabit).²⁹ Since the formula almost invariably immediately follows the contra omnes formula, it is plausible that it was designed to qualify the scope of the warrantor’s commitments, acknowledging that there were some matters against which one simply could not warrant.

The topic of services invites us, yet again, to consider the relationship between word and concept when thinking about warranty. To what extent can the acquittance of services be included within the umbrella term of ‘warranty’, as opposed to a related, but nevertheless separate set of commitments? Answering such a question is never straightforward, though there are several reasons to justify the view that the concept of ‘warranty’ in our period ordinarily included protection from services. For a start, the acquittance of services resonates well with the association in the Coutumes between warranty and parage, where the eldest sibling’s warranty obligations towards the younger siblings were explicitly with regard to the services owed to the superior lord.³⁰ Further, the verb adquietare, which as we have seen was commonly employed by scribes when recording the promises made by alienors, was widely associated with the acquittance of payments and liabilities, of which services and customs would have constituted a particularly familiar type of liability for contemporaries.³¹ Most importantly, however, an early charter from 1111 explicitly used the language of warranty when discussing the matter of services due from a property with a colourful history.³² The monks had acquired some land so that one Giraud could receive his daily victuals from them and later become a monk. The monks were to hold this property from the lords of Marenz—Guicher and his son Philip—who, in their turn, held it from William de Vernée, the capitalis dominus. The charter went on to stipulate that if the lords of Marenz should default in their service to William de Vernée, then William would inform the monks’ prior at Thorigné and give him a fixed court-date at which the prior ‘could have his warrantor [guarent]’ present; and if he was unable to obtain his warrantor, then the prior would henceforth pay the 7s. of service directly to lord of Vernée, instead of to the lords of Marenz.³³

Warranty clauses seldom offer any insight as to the length of time for which one’s warranty ordinarily remained valid. Typically, warrantors seem to have intended that their promises last ‘in perpetuity’ (in perpetuum) or for ‘all the days of their life’ (omnibus diebus vitae)—though most examples of both phrases fall after c.1100.³⁴ Such statements thus contributed to the notion that warranty was an absolute commitment, and may be comparable to pro posse suo or contra omnes formulas. Given the practice of associating heirs and other family members with the actual warranty commitments, moreover, it is probable that the parties involved in such arrangements expected warranty to extend some distance into the future.³⁵ That warranty commitments possessed a sort of eternal quality when dealing with religious houses is perhaps unsurprising, not least because the principals sometimes concluded their transactions with the alienee’s patron saint who was, by definition, undying and eternal. But projections of warranty obligations into the future were also likely a feature of lay warranty. Though rare, such examples also sometimes explicitly stated that the warranty covered the alienee and his/her heirs, occasionally even ‘in perpetuity’.³⁶

Assessing the practical importance of these grandiose expressions of warranty’s temporal duration—ideally in perpetuity—poses familiar problems concerning the interpretation of diplomatic formulas. Yet a handful of clauses in which the warranty’s validity was fixed to a limited period of time may offer us a way forward.³⁷ Several charters from the mid-thirteenth century onwards recording sales of properties or revenues from holdings located primarily in rural parishes expressly stated that the warranty would last for the time span of a year and a day.³⁸ While none of the western French clauses limit warranty to a fixed duration of time prior to 1250, there is fortunately some earlier comparative evidence from neighbouring regions. In 1211, Eudes III, the duke of Burgundy, issued a charter stating that one Goscelin d’Avallon would warrant his sale to Countess Blanche of Champagne (and her heirs) ‘for a year and a day, according to law’.³⁹ And in a particularly early example, dating between 1101 and 1124, Raoul gave a carucate (carrucatam) of land to the monks of Saint-Père de Chartres, whereupon his two sons and his brother promised ‘by their faith’ that ‘if they were unable to acquit that land for the monks of Saint-Père for the next two years, then they would give an exchange of equal value in either land or money, whichever the abbot and the monks would prefer’.⁴⁰ Differing only insofar as it refers to a two-year time limit, as opposed to a year and a day,⁴¹ the Saint-Père charter stands as important evidence from the first quarter of the twelfth century illustrating that in some circumstances, at least, warranty might be framed in terms of a fixed period of time.

Although clauses that explicitly limit the warrantor’s commitment to a fixed length of time remain uncommon, the above examples nevertheless focus our attention upon the conceptual relationship between warranty on the one hand, and the lapse of time (or prescription) on the other. Recognising just such an association advances our understanding both of warranty’s practical and ideational aspects. In the practical contexts of litigation, warranty thus needs to be set alongside how courts and litigants approached questions of temporality: temporality both in the sense of for how long was a warrantor’s commitment valid, and for how long did someone need to hold onto property securely before it was considered to be his or hers? For instance, when their property fell under challenge, monks or canons during our period sometimes responded with the argument that they had held the contested property for a particular length of time, often without challenge (sine calumnia). The lapse of time, known as prescription, serves both as a bar to legal challenge following the passage of a set time (extinctive prescription) and as a means to acquire title in the absence of legal challenge within a set duration (acquisitive prescription). The length of prescription periods in western France during the central Middle Ages varied from anywhere between the Romano-canonical thirty- to forty-year durations—early evidence for which appears in Anjou, for example, from 1074—to twenty- or ten-year lengths.⁴² Not surprisingly, we also find references to prescription periods of a year and a day (i.e., la prescription annale). Thus, in a case dated between c.1050 and c.1055, the nuns of Le Ronceray claimed to have held (tenere) a disputed mill for ‘a year and a day without challenge’.⁴³ Regardless, beneath the different prescription periods lies a fundamental assumption on the part of those individuals or communities defending property with arguments based on prescription: the lapse of time barred any subsequent challenges upon property.⁴⁴ Indeed, in one admittedly unusual example, William de Montsoreau stated that after the lapse of the prescription period—in this instance limited to just eight days—the nuns of Fontevraud, need not respond to any future challenge.⁴⁵

The relationship between warranty and prescription periods adds yet another layer of complexity to our understanding of how ideas of warranty worked in practice, and how they interacted with other elementary legal ideas, such as the lapse of time. To claim property through a warrantor, based on an earlier transaction between claimant and the person identified as the warrantor, differed in its logic from claiming title on the basis of a prescription period after which the title-holder need not respond to any challenge: the two represented substantively different types of argument. When the curia of Chinon in the 1050s or 1060s, for example, told a claimant that he had no basis for his challenge against the monks of Saint-Florent de Saumur, ‘neither by inheritance, nor by warranty’, it was explicitly contrasting two separate ways of constructing a claim to proprietary right—to ius.⁴⁶ The normative weight of general principles of heritability must often, for laymen at least, have held a certain lustre as the first pillar of any legal argument they developed when litigating with ecclesiastical opponents; and regular recourse to the norms of heritability by laymen in their claims may have mitigated their reliance on arguments whereby they claimed property on the basis of title guaranteed by a warrantor. In this light, it is surely significant that much of the surviving case material for laymen seeking proprietary title through a warrantor specifically concerns men alleging that so-and-so was their lord, and had given the contested property to them in fief.⁴⁷ Equally, when churchmen constructed arguments as to their own basis of title, they may also have placed greater store in arguments based on a prescription period of thirty or forty years, as opposed to arguments based on the warranty obligations alienors owed to them.

The preceding discussion thus brings us into the orbit of prescription periods, and invites us to consider how ideas and practices of warranty related to the temporal benchmarks of prescription. On the one hand, the lapse of a prescription period would, theoretically at least, extinguish the obligation to warrant. What is not known is whether courts during our period treated arguments based on prescription and appeals to a warrantor as mutually exclusive legal strategies: certainly in the eleventh century, there is evidence that litigants might try each type of claim in succession. Regardless, whatever the normative weight of acquisitive prescription was, it needs to be balanced by the evidence discussed earlier of alienor’s heirs, family members, and lords joining in on the act of warranting property transactions. Such evidence implies that the obligation to warrant was understood to cross generational divides. In part, there is an element of prudence to this, especially when prescription periods could be rather fluid depending upon which measure was adopted: warranting for a prescription period of thirty or forty years necessarily involved a significantly greater investment of time—one that could conceivably require at least two generations—than extending warranty for a year and a day. Yet the possible tension-point here between multi-generational warranty and limitations of prescription may also point towards two subtly different goals to which warranty obligations were orientated. Fixing warranty commitments to a prescription period ties the obligation to the defence of title, whereas multi-generational warranty might better be conceived of as defence of tenure, especially the protection from undue services and claims for customs that tended to be renegotiated fairly often within any lordship. That warranty could be orientated to one or both of these goals should not be surprising; but it sounds a clarion call to be alert to the complex ways in which property, lordship, and warranty interacted during our period.