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.
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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.Footnote 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.Footnote 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.Footnote 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.Footnote 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’.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.
Notes
- 1.
Paul Ourliac and Jehan de Malafosse, Histoire du droit privé, vol. 1, 2nd ed. (Paris, 1969 [orig. 1957]), p. 286 note that garanties affect all transfers of property, but most commentary has focused on sales.
- 2.
See, for example, Robert Floren, La vente immobilière en Provence au Moyen-Âge et sous l’ancien régime (Aix-en-Provence, 1956), pp. 71–3; François Pontenay de Fontette, Recherches sur la pratique de la vente immobilière dans la région parisienne au moyen âge (fin Xe–début XIVe siècle) (Paris, 1957), pp. 91–101; Mireille Castaing-Sicard, Les contrats dans le très ancien droit toulousain (Xe–XIIIe siècle) (Toulouse, 1959), esp. pp. 87–92; François Gilliard, ‘La garantie du chef d’éviction dans le pays de Vaud (du IXe au XVe siècle)’, MSHDB, 21 (1960), pp. 7–23; Jean Gay, ‘Remarques sur l’évolution de la pratique contractuelle en Champagne méridionale (XIIe–XIVe siècle)’, MSHDB, 54 (1997), esp. pp. 30–43.
- 3.
Adolf Berger, Encylopedic Dictionary of Roman Law (Philadelphia, 1953), s.vv. ‘auctor’, ‘evictio’, ‘stipulatio’. For useful overviews of the Roman law of contract (and sale, in particular), see, inter alia, Alan Watson, Roman Law and Comparative Law (Athens, GA, 1991), pp. 53–68; Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford, 1996 [orig. 1990]), pp. 293–300; George Mousourakis, Roman Law and the Origins of the Civil Law Tradition (Cham, 2015), pp. 131–8; and Paul du Plessis, Borkowski’s Textbook on Roman Law, 6th edn. (Oxford, 2020), pp. 253–320.
- 4.
On de Laurière, an enterprising editor of texts, see Jean-Louis Thireau, ‘Un historien du droit au grand siècle: Eusèbe-Jacob de Laurière’, in J. Poumarède (ed.), Histoire de l’histoire du droit (Toulouse, 2006), pp. 47–59.
- 5.
François Ragueau, Glossaire du droit français, ed. E. de Laurière (Geneva, 1969 [orig. 1704]), s.vv. ‘garent’, ‘garentir’; note also Claude-Joseph de Ferrière, Dictionnaire de droit et de pratique…, vol. 1, new edn (Paris, 1771), pp. 685–93, which discusses garant and garantie largely (though not exclusively) in connection with sales and evictions. De Ferrière’s Dictionnaire was an edited and retitled version of the Introduction à la pratique, written by his father (Claude de Ferrière) in 1674. On both figures, see Jacqueline Moreau-David, ‘Claude de Ferrière’ and ‘Claude-Joseph de Ferrière’, in DHJF, pp. 423–5. For a brief discussion of the genre of legal dictionaries, see Jean-Marie Carbasse, ‘De verborum significatione. Quelques jalons pour une histoire des vocabulaires juridiques’, Droits, 39, no. 1 (2004), pp. 3–16.
- 6.
For the formularies, see, inter alia: Angers, nos. 27 and 56; Marculf, II, nos. 1, 3, 4, 6, 19, 22, et al.; Tours, nos. 1b, 4, 7, 12, 14, et al. Note also the references in the formularies to the stipulatio duplae, the penalty to pay double the payment price if the warrantor fails to defend the purchaser’s title: Angers, nos. 38, 45, 60; Marculf, II, no. 20; Tours, no. 13. The essential starting point on the formularies is now Alice Rio, Legal Practice and the Written Word in the Early Middle Ages: Frankish Formulae, c. 500–1000 (Cambridge, 2009). For the stipulationes in charters, see, from varying perspectives, Jean-Marie Pardessus, ‘De la formule Cum stipulatione subnexa, qui se trouve dans un grand nombre de chartes’, BEC, 2 (1841), pp. 425–36; Jacques Flach, ‘Le droit romain dans le chartes du IXe au XIe siècle’, Mélanges Fitting, vol. I (1907), 3–39; Jean Gaudemet, ‘Le droit romain dans le pratique et chez les docteurs aux XIe et XIIe siècles’, Cahiers de civilisation médiévale 31–32 (1965), pp. 365–80; idem, ‘Survivances romaines dans le droit de la monarchie franque du Vème au Xème siècle’, Tijdschrift voor Rechtsgeschiedenis, 23, no. 2 (1955), pp. 149–206; Paul Ourliac, ‘La tradition romaine dans les actes toulousains des Xe et XIe siècles’, RHDFE, fourth ser., 60, no. 4 (1982), pp. 577–88; and Maurizio Lupoi, The Origins of the European Legal Order, trans. Adrian Belton (Cambridge, 2000), pp. 486–93. Note also Osamu Kano, ‘Procès fictif, droit romain et valeur de l’acte royal à l’époque mérovingienne’, BEC, 165, no. 2 (2007), pp. 329–53, for the argument that Merovingian fictive trials represented attempts on the part of transferees to get their auctor (i.e., warrantor) into court to acknowledge a transfer.
- 7.
Gilliard, ‘La garantie du chef d’éviction’, esp. pp. 19–20 and Gay, ‘Remarques sur l’évolution de la pratique contactuelle’, p. 31 are cautious on this point; cf. Bernard Vigneron, ‘La vente dans le mâconnais du IXe au XIIIe siècle’, RHDFE, fourth ser., 36 (1959), esp. p. 47, for whom the ‘résurrection du droit romain’ is vital.
- 8.
Note Guy Chevrier, ‘Les étapes de la pénétration du droit romain dans le comté de Bourgogne’, MSDHB, 19 (1957), pp. 38, 41 for comments that the appearance of terms like garantia and garentire in earlier thirteenth-century Burgundian charters signalled only an approximation of the ‘Roman mechanism of the garantie contre l’éviction’ (p. 39), as if the language of warranty/garantie itself was a Roman institution; Chevrier further notes that by 1290, ‘la garantie en matière de vente est appelée correctement garantie d’éviction’ (p. 43, emphasis added).
- 9.
For example, Henri Beaune, Droit coutumier français. Les contrats (Paris and Lyon, 1889), pp. 187–8 made a substantive distinction between the garanties of the ‘la période féodale’, that is, the ‘simple exception’ in cases where an individual was accused of stealing moveables, on the one hand, and the garantie du vendeur, that is, ‘ce que le Romains appelaient l’auctor, qui de evictione tenetur’, on the other. The former, according to Beaune, ‘ne rentre pas précisément dans notre sujet [of garantie d’éviction]’. The differentiation between contract in customary law versus Roman law has remained a theme in much scholarship from Beaune and Adhémar Esmein onwards: see, for example, Adhémar Esmein, Études sur les contrats dans le très-ancien droit français (Paris, 1883); Gabriel Lepointe and Robert Monier, Les obligations en droit romain et dans l’ancien droit français (Paris, 1954); and A.E.V. Giffard and Robert Villers, Droit romain et ancien droit français: les obligations, 4th edn. (Paris, 1976).
- 10.
See here, with extensive references, André Castaldo, ‘Pouvoir royal, droit savant et droit commun coutumier dans la France du moyen âge. À propos de vues nouvelles I: Le roi est-il le maître du droit privé, via le droit romain?’, Droits, 46, no. 2 (2007), 117–58 and idem, ‘Pouvoir royal, droit savant et droit commun coutumier dans la France du moyen âge. À propos de vues nouvelles II: Le droit romain est-il le droit commun’, Droits, 47, no. 1 (2008), 173–248; see the recent review of this debate in Nicolas Warembourg, ‘La notion de “droit commun” dans l’Ancienne France coutumière: Point d’étape’, Glossae. European Journal of Legal History, 13 (2016), 670–84.
- 11.
Note François Olivier-Martin’s comment on the emergence of thirteenth-century warranties made ‘according to the usages and customs of France’ in the Paris region: ‘La pratique de début du XIIIe siècle, qui vient en somme d’obtenir la liberté des aliénations, aussi bien à l’encontre des seigneurs que de la famille, s’empresse de consacrer cette liberté par une formule de garantie qui émerge ainsi tout naturellement la première, comme coutume générale, et que l’on répète à satiété’, in his Histoire de la coutume de la prévôté et vicomté de Paris, vol. 1 (Paris, 1922), pp. 27–8. Philippe Godding, Le droit privé dans les Pays-Bas méridionaux du XIIe au XVIIIe siècle (Brussels, 1987), p. 456 viewed warranty of sales primarily as a protection against claims from the vendor’s kin.
- 12.
The points of departure for this larger narrative are: Louis Falletti, Le retrait lignager en droit coutumier français (Paris, 1923) and Jean de Laplanche, La réserve coutumière dans l’ancien droit français (Paris, 1925). The essential study on the laudatio parentum is Stephen D. White, Custom, Kinship, and Gifts to Saints: The Laudatio parentum in Western France, 1050-1150 (Chapel Hill, 1988), who critiques much earlier writing on the purposes and significance of the laudatio, but who largely follows these authors in viewing warranty as a thirteenth-century development: see ibid., pp. 202–3; and see too Charles Donahue Jr., ‘What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century’, Michigan Law Review, 78, no. 1 (1979), pp. 59–88, esp. pp. 75–8. For a convincing recent critique of Falletti and Laplanche, see Jean-Louis Thireau, ‘Faculté de disposer et protection de la famille dans le très ancien droit coutumier français (Xe–XIIIe siècles)’, RHDFE, 87, no. 3 (2009), pp. 337–63. Thireau’s critique effectively demolishes the evolutionary schema whereby the laudatio is treated as the fons and origo of the retrait and réserve: there is evidence for all three practices co-existing from as early as the eleventh century, and the laudatio continued to be practised well into the thirteenth century. See also Jean-Louis Thireau, ‘Les origines de la réserve héréditaire dans les coutumes du groupe angevin’, RHDFE, 64, no. 3 (1986), pp. 351–88, and, for important comparative evidence, Paul Ourliac, ‘Le retrait lignager dans le Sud-Ouest de la France’, RHDFE, 30 (1952), pp. 328–55.
- 13.
For the quint denier, traditionally seen as payable to the lord upon the sale of a fief, see François Olivier-Martin, Histoire du droit français des origines à la Révolution (Paris, 1948), p. 265; for the lods et ventes, payable to the lord upon the sale of censive (i.e., a tenement owing rent (the cens), but not a fief), see ibid., p. 267.
- 14.
White, Custom, Kinship, and Gifts to Saints, pp. 53, 203 and Thireau, ‘Faculté de disposer’, p. 358 have both acknowledged this earlier evidence, though have not explored its relationship to later warranty clauses.
- 15.
The seigneurial dimension of warranty was central to S.F.C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976), esp. pp. 42–4, 126–32; the seminal discussion remains Paul Hyams, ‘Warranty and Good Lordship in Twelfth-Century England’, Law and History Review, 5, no. 2 (1987), pp. 437–503; see also John Hudson, Land, Law, and Lordship in Anglo-Norman England (Oxford, 1994), pp. 51–8; idem, The Oxford History of the Laws of England, Volume II: 871–1216 (Oxford, 2012), pp. 594–8; and Jonathan Rose, Maintenance in Medieval England (Cambridge, 2017), esp. pp. 13–29. The diplomatic of later English warranty clauses in the twelfth and thirteenth centuries is covered in J.M. Kaye, Medieval English Conveyances (Cambridge, 2009), pp. 46–58.
- 16.
Hyams, ‘Warranty and Good Lordship’, p. 445 emphasises that warranty was not born out of seigneurial relationships, and its origins may lie in chattel markets.
- 17.
On the potential impetus provided by Stephen’s reign, see Hudson, Land, Law, and Lordship, p. 55; and David Postles, ‘Gifts in Frankalmoign, Warranty of Land, and Feudal Society’, The Cambridge Law Journal, 50, no. 2 (1991), 330–46.
- 18.
On a European scale, see Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford, 1994); for critiques of Milsom’s view of lordship in particular, see John Hudson, ‘Milsom’s Legal Structure: Interpreting Twelfth-Century Law’, Legal History Review, 59 (1991), pp. 47–66 and idem, Land, Law, and Lordhsip. For discussion of Milsom’s approach in the context of western France, see Stephen D. White, ‘Inheritances and Legal Arguments in Western France, 1050-1150’, Traditio, vol. 43 (1987), pp. 55–103.
- 19.
Note here the apposite comments in David Deroussin, ‘Penser l’ancien droit des contrats’, in Xavier Prévost and Nicolas Laurent-Bonne (eds.), Penser l’ancien droit privé. Regards croisés sur les méthodes des juristes (II) (Paris, 2018), pp. 133–56.
- 20.
Approaches to lordship, especially in the eleventh century, have often been tied into larger, highly polarised debates about a so-called feudal transformation or mutation féodale, a period of supposedly rapid and violent social change in the decades around the year 1000. The literature is vast, but for recent contributions, all partisan of course, see: Dominique Barthélemy, La mutation féodale de l’an mil a-t-elle eu lieu? Servage et chevalerie dans la France des Xe et XIe siècles (Paris, 1997); Thomas N. Bisson, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton, 2009), which expands on this same author’s earlier article, ‘The “Feudal Revolution”’, P&P, 142, no. 1 (1994), pp. 6–42; Charles West, Reframing the Feudal Revolution: Political and Social Transformation between Marne and Moselle, c.800–c.1100 (Cambridge, 2013); Alessio Fiore, The Seigneurial Transformation: Power Structures and Political Communication in the Countryside of Central and Northern Italy, 1080–1130, trans. Sergio Knipe (Oxford, 2020); Laura Viaut, Quand le vent se lève. Essai sur la crise institutionnelle et juridique de l’an mille (Dijon, 2021). As with any such debate, both sides have merit. Equally important when thinking about lordship, both as a set of practices and within different national historiographical traditions, are the essays collected in Monique Bourin and Pascual Martínez Sopena (eds.), Pour une anthropologie du prélèvement seigneurial dans les campagnes médiévales (XIe–XIVe siècles). Réalités et représentations paysannes (Paris, 2004). Particularly helpful for my own thinking on the subject are: the essays collected in Stephen D. White, Re-Thinking Kinship and Feudalism in Early Medieval Europe (Aldershot, 2005); Simon Teuscher, Lord’s Rights and Peasant Stories: Writing and the Formation of Tradition in the Later Middle Ages, trans. Philip Grace (Philadelphia, 2012 [orig. 2007]); Otto Brunner, Land and Lordship: Structures of Governance in Medieval Austria, trans. from 4th ed. by Howard Kaminsky and James Van Horn Melton (Philadelphia, 1992); and from a different disciplinary perspective, James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven and London, 1985) and idem, Domination and the Arts of Resistance: Hidden Transcripts (New Haven, 1990).
- 21.
A good, recent starting point for the history of the region can be found in Jean-Michel Matz and Noël-Yves Tonnerre, L’Anjou des princes, fin IXe–fin XVe siècle (Paris, 2017), with further references; Olivier Guillot, Le comte d’Anjou et son entourage au XIe siècle, 2 vols. (Paris, 1972) remains essential for the early period.
- 22.
For studies looking at disputing in western France specifically, see Stephen D. White, Feuding and Peace-Making in Eleventh-Century France (Aldershot, 2005), which collects many of White’s pioneering essays in this field; Dominique Barthélemy, La société dans le comté de Vendôme de l’an mil au XIVe siècle (Paris, 1993), pp. 652–80; Richard E. Barton, Lordship in the County of Maine, c.890–1160 (Woodbridge, 2004), pp. 175–96; Henk Teunis, The Appeal to the Original Status: Social Justice in Anjou in the Eleventh Century (Hilversum, 2006). Bruno Lemesle, Conflits et justice au Moyen Âge. Normes, loi et résolution des conflits en Anjou aux XIe et XIIe siècles (Paris, 2008) provides an important and balanced interpretation of disputing in the region.
- 23.
See, for example, Jean Yver, ‘Les caractères originaux du groupe de coutumes de l’ouest de la France’, RHDFE, 29 (1952), pp. 18–79; Olivier Guillot, ‘Sur la naissance de la coutume en Anjou au XIe siècle’, in Droit romain, jus civile, et droit français, ed. Jacques Krynen (Toulouse, 1999), pp. 273–96; note too Jean-Louis Thireau, ‘La territorialité des coutumes au Moyen Âge’, in Auctoritas. Mélanges offerts au Pr. Olivier Guillot (Paris, 2006), pp. 453–65, who suggests (less convincingly, in my view) that the formation of regional custom may have occurred in western France even earlier than the eleventh century. One of the key questions here centres on how far the formation of regional customs depends on more or less strong structures of central political authority (like the counts of Anjou, dukes of Normandy, etc.). For an excellent, recent exploration of such issues in the context of the vicomtes of Thouars, see Luc Guéraud, Contribution à l’étude du processus coutumier au Moyen Âge: le viage en Poitou (Clermont-Ferrand, 2008).
- 24.
See the brief overview in Xavier Martin, ‘Note sur la “littérature” coutumière angevine au Moyen Âge’, in La littérature angevine médiévale. Actes du colloque du samedi 22 mars 1980 (Angers, 1981), pp. 41–9.
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McHaffie, M.W. (2023). Introduction. In: Warranty Obligations in Western France, 1040–1270. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-14517-9_1
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