Keywords

In looking in toto at warranty commitments in western France from c.1040 into the 1270s, we have seen that warranty comprised two fundamental obligations. First, the warrantor ought to defend the alienee against outside challenge. Defence was typically orientated towards court settings, with the warrantor providing testimony either in support of or in place of the alienee whose title was under challenge. This primary obligation could be undertaken by the principal alienor and by third parties, such as family members and lords who warranted either alongside or in lieu of the alienor. This defence was generally directed ‘against all’ (contra omnes), committed the warrantor to defend to the best of his or her ability (pro posse suo), and was typically conceived of as a trans-generational commitment, to be assumed by the warrantor’s heir(s) when the time came. Second, the alienee acquired a claim for compensation if the warrantor’s defence proved to be unsuccessful. Forms of compensation varied, though generally took one or more of three types: monetary reimbursement of any payments made at the time of the original transaction (whether sale price or counter-gifts); an excambium of equivalent value; or reimbursement of the costs and damages that the alienee incurred as a result of the challenge. We have found warranty commitments attached to all manner of property transfers, including sales, gifts, hybrid transactions, quitclaims, and so on. And we have seen that courts throughout our period allowed defendants the right to summon their warrantors, and heard and judged on claims about compensation and the excambium.

One of the aims of this study has been to demystify warranty and understand it as an ‘elementary legal idea’ throughout our period. Thus, warranty has emerged as a simple yet expansive concept, whose core consisted of a basic idea of protection. We have seen this protective core both in the etymology of g(u)arant/ir, and in scribes’ usage of such verbs as custodire, defendere, protegere, tueri, or tutari when expressing warranty commitments in writing. Protection was necessarily abstract, and what it meant in any given situation was highly conditioned by the context in which it was sought and/or promised. The pairing of warranty and protection appears in a wide range of sources and scenarios not limited to the transfer of property. The Chanson de Roland, for example, contains a scene in which Roland tells his compatriots: ‘French barons, I see you dying for me/I cannot protect nor warrant you’.Footnote 1 Such examples serve as useful reminders of the capaciousness of warranty ideas, and that its meaning in specific contexts was never far from this elementary sense of protection. In this regard, warranty expressed a relationship between two (or more) individuals in which one assumed responsibility for the protection of the other.

Simple as it might have been, warranty was not without ambiguity in the context of property transactions. Within such contexts, alienees expected that the alienor, or others on his/her behalf, would protect them in court and sometimes out of it, and that this protection was aimed both at preserving the alienee’s title against third-party challenge and protecting the alienee against any liabilities that might be incurred as a result of defective title. The ambiguities arose when attempting to determine just how far the warrantor was expected to go in defence of an alienation, and what happened if that protection was unsuccessful. As to the former, we have seen debate focus on questions of the forms of proof a warrantor would be expected to undergo, and the extent of the warrantor’s extra-curial commitment to the defence of a transaction—up to and including waging a guerra on the alienee’s behalf. With the latter, questions inevitably focused on the types of loss for which the warrantor was liable to provide compensation, along with the form(s) that the said compensation would take. These sorts of question represent the grey areas of interpretation that were the natural consequence of such a basic underlying idea of warranty centred on protection. In the case of property transactions, alienors and alienees shared in the expectation that a transfer of property entailed some degree of protection against others and that the alienee acquired some sort of claim for compensation if the warranty failed.

An appreciation of warranty’s elegant simplicity helps us make sense of the surviving evidence, particularly the variable diplomatic of eleventh- and twelfth-century warranty clauses. The range of words used to express warranty commitments invites the question of whether such disparate clauses reflect a common phenomenon, or if they signify different types of commitments that only slowly coalesced into the warranty clauses of the thirteenth century. In part, this is an epistemological issue; any answer will be conditioned by where one falls on a broad spectrum with universalism at one end and a sort of hyper-nominalism at the other. Yet the approach adopted in this study, which defines warranty as protection, allows us to recognise that the range of warranty expressions we find in the charters represent variations on a common theme. None of the vocabulary used to express warranty commitments was a term of art, whose definition could be tied to any specific set of juristic texts. In this regard—and unsurprisingly—warranty differed markedly from the Roman concept of evictio or stipulatio; warranty, as stated above, was a relationship centred on protection, and how that relationship was expressed was adaptable depending on the circumstances and needs of the parties and/or scribes responsible for a charter. What seems to have been more important to contemporaries were the basic parameters of warranty commitments when transferring property, rather than the precise form in which those commitments were expressed. The relative standardisation of warranty clauses in the thirteenth century, accordingly, is a phenomenon that owes more to transformations in the circumstances of documentary production, instead of any substantive development in the idea of warranty itself.

The emphasis on its simplicity should not be taken to mean that warranty remained unchanged during the period covered in this study: far from it. But the lingering question has been how to identify elements of change, and how to explain the causality behind them. Running through this study has been a critique of the two major grand narratives that have traditionally been invoked to explain the development of warranty: the influence of Roman law, and the emergence of individual powers of alienation. Neither narrative appears wholly satisfactory when examining warranty. The influence of Roman law seems to have been minimal, and the range of people involved in warranting transactions makes it difficult to associate warranty’s development to the growth of the individual’s alienatory powers. More fundamentally, each of the grand narratives remains teleological, searching for the origins of the garanties d’éviction as they were articulated in early modern droit coutumier and later French law. To be clear, I am not saying that larger narratives about the capacity of Roman law to transform contract and the law of obligations, or a wider shift over the longue durée from greater to lesser restrictions on the individual’s right to alienate property are wrong; rather, I question how far warranty, as based on the surviving evidence, should be seen as a part of these larger narratives. Our evidence, from the first appearance of warranty clauses in the 1040s until the coutumiers and charters of the 1270s, seems to tell a rather different story altogether.

The common thread woven into that story has been lordship, which we have encountered in numerous guises throughout the preceding pages. Perhaps most directly, we have seen lords stepping in to warrant the property transactions of others, often at the request of the alienor(s). Evidence for these seigneurial warranties appears from the mid-eleventh century, before becoming especially prevalent after c.1200. We have also seen individuals in court name and summon their lords as warrantors, alleging to have received contested property from their lord or to have held it in fief. Warranties, moreover, were sometimes explicitly directed against the agents and tenants of a lord—either the alienor himself/herself, or the alienor’s lord. Such examples have all shone a light onto the vertical dimensions of landholding. These dimensions cannot be reduced to the model of a fief granted in return for services in the spirit of Milsom, but neither can lordship be written out of the picture when it was a dominating force weighing on how contemporaries thought about warranty and the dangers for which it provided (in theory at least) a measure of protection. And the story of lordship continues into the coutumiers of the region as well. As we have seen, warranty was mentioned in the 1246 Coutumes in contexts of parage, where an elder sibling warrants the younger siblings against a lord’s demands; and we have noted the curious passages where a lord was allowed to ‘warrant’ one of his agents against various liabilities owed to the king. Lordship thus represents a key line of continuity that takes us from the earliest warranty clauses into the coutumiers. By the thirteenth century, when lords warranted property transfers made within their fiefs (tamquam dominus feodi) and sometimes did so ‘according to the usages and customs’ of the region, we are witnessing the culmination of processes that go back at least to the eleventh century, and which amount to the gradual orientation of warranty ideas towards the structures and practices of the seigneurie.

A neglected topic like warranty thus helps us apprehend the very broad questions of what we mean by law during the central Middle Ages, and how we might understand the complexities and vagaries of its development. The core issues come back to history and narrative: what is legal change, and is it possible to think about processes of change without utilising the internal logics of later legal systems? Even though our period saw early attempts towards systematisation and of systemic legal thinking—the thirteenth-century development of the ius commune is a case in point—the systems that jurists began to articulate and that would be revised over the centuries did not encompass the entirety of legal experience, nor, crucially, the totality of legal change. Legal development was multidirectional and multifaceted: some lines of development had long lives indeed, whereas others look now like dead ends. But these dead ends are as important to our historical understanding as are the grand lines of continuity that can bring us, however indirectly, from the central Middle Ages to the present. The examination of warranty has forced us to confront questions of definition and causality simply because the narratives that have been invoked to explain what it was and why it developed seem to be so unsatisfactory when set against the evidence. This is not to sever any relationship between the evidence and existing explanatory frameworks; my aim has been to question whether these are the most useful frameworks for getting the most of our evidence. And the answer to that question is a simple one: existing interpretative frameworks leave too much out. I have thus emphasised the structures of lordship, suggesting that the formalisation of those structures can account for much of the dynamism we see in the evidence for warranty from western France. Whether this argument holds weight is, of course, not for me to say. If nothing else, however, I hope that the argument shows something of the value in a narrow legal subject like warranty and the much larger questions that it implicitly raises. And more importantly, I hope to have shown that the questions are worth asking.