CHAPTER 11

The Law of Property

Señorío es Poder que Ome ha en su Cosa de Fazer della e enella lo que Quisiere

At Alfonso X’s accession, the Castilian economy was largely agricultural and pastoral, but trade and commerce, spurred by the general European revival, became increasingly vital. Consequently, the law of property, whether real or personal, movable or immovable, public or private, assumed great importance. The royal jurists, drawing on Roman law, considered ownership and possession and the acquisition and disposal of property in the Third Partida, and in the Fifth, contractual obligations.

Ownership and Possession

Ownership (señorío) and possession (tenencia) had fundamental significance (E 5, 8, 1–36; SP 3, 28–32). Landed property was classified as realengo, abadengo, and solariego. Realengo meant the inalienable royal domain: castles, villages, towns, landed estates, forests, tolls, tributes, salt pits, mines, and fisheries. Property held by ecclesiastical institutions was abadengo, and lands controlled by secular lords, solariego.

Simplifying the definition in the Espéculo (5, 8, 4), the Third Partida (3, 28, 1) explained that “señorío es poder que ome ha en su cosa de fazer della e enella lo que quisiere segund Dios e segund fuero” (ownership is the power that a man has over his property to do with it and in it whatever he wishes according to God and the law).1 There were three forms of señorío: (1) the power of emperors and kings to punish evildoers and to render to everyone his right; (2) the power that one has over movable and immovable property transmissible to one’s heirs; and (3) usufruct or rental of property for life or a fixed term, or over property held as a fief (SP 3, 28, 1). In the first instance, señorío refers to governmental authority or sovereignty. The other two concern ownership and possession.

In explaining the acquisition of property, the royal jurists relied heavily on Justinian’s Institutes (2, 2, 1).² Natural elements such as air, rainwater, the sea, and its shores were common to all living creatures. Known as res nullius, they had no owner, but everyone could use them. Anything found on the shore below the high tide mark belonged to the finder. Fishermen and boatmen could also access river banks, even if someone owned the adjoining land. No one could impede free passage on a river.³ Fountains, squares, marketplaces, roads, woodland, and pastures in municipal districts were reserved for common use. Income derived from them was used to repair walls and bridges, but customs duties, tolls, revenue from salt pits, fisheries, and iron mines, and other tributes were earmarked for the sustenance of emperors and kings, defense of the realm, and war against enemies of the faith (E 5, 8, 1–2; SP 3, 28, 1–11). Lest individual claims to water sources cause conflict, Infante Manuel stipulated in 1268 that water in his town of Elche should be held in common by the town council.⁴ In disputes over the water supply in California and Texas, lawyers and courts referred to the Partidas for guidance.⁵

Churches and cemeteries were sacred spaces administered but not owned by the clergy and could not be alienated except in accordance with the First Partida (1, 14). No one, without royal authorization, could disinter a body, other than that of one who had committed treason. Relics and religious objects could only be sold according to the terms set down in the sixth book of the Espéculo, which is not extant. City walls and gates were also holy, and no one should ever try to enter a city by climbing over the walls (E 5, 8, 3; SP 3, 28, 12–16). Legend had it that Romulus, after killing his brother Remus who jumped over the half-finished walls of Rome, vowed to kill anyone else who did so.⁶

The royal jurists spoke at some length about the ownership of human beings, animals, birds, and fish. Although human beings were naturally free and could not be bought or sold, a captive could be reduced to slavery or held for ransom. However, if he escaped to his own country, his captor lost his right of ownership. A man would lose ownership of wild beasts, bees, peacocks, and other tamed animals that escaped out of sight, but ordinary fowl were always considered his. The owner of cows, ewes, and mares also owned their offspring. He could recover fruit that had fallen from his trees into a neighbor’s property, but he could not hunt there without permission. In rural areas, peasants hunted small game for food, but for the king and the nobles hunting was often a sport. The vagaries of rivers and streams at times altered the landscape in one’s favor or disfavor. Alluvial deposits fell to the man holding the land on which they were made. Islands in the midst of a river should be divided between the landowners on each side, but a man would not lose his property if a river created an island in it or if it were entirely covered by water. If an island arose in the sea (a rare occurrence) it would belong to the one who colonized it (E 5, 8, 3, 5–10; SP 3, 28, 17–33).7

Ownership of raw materials to make something new depended on whether the materials could be replaced and were used honestly. A man who, in good faith, used another’s grapes or olives to make wine or oil would own the finished product but should compensate the original owner. If the material was imperishable, the one using it had no right of ownership. A book written on parchment or a painting on a board, for example, belonged to the owner of the material used, but he owed the writer or painter a fair price. Similarly, stone or wood used in a building belonged to the building’s owner and not to the builder. Ownership of treasure or abandoned property was vested in the finder, though the king was entitled to half of any “very large” treasure—a vague term indeed (E 5, 8, 11–19; SP 3, 28, 34–50).⁸

Prescription was the right of ownership acquired by a man who, for a long time, without interruption, lawfully possessed property belonging to another. If he acted in good faith and the property was not stolen, he might gain ownership of movable property after holding it continuously for three years, or thirty years for immovable property. Nevertheless, property belonging to minors, married women, soldiers on military service, captives, pilgrims, and students was protected from loss in this way. Royal property was never subject to prescription, and church property was also sheltered, though immovable property owned by the church could be lost after forty years.⁹ Prescription did not confer on anyone the right to administer justice without royal consent, or ownership of the communal property of cities and towns. Ownership of animals, ships, or revenues pertaining to a city, however, could be acquired after possession over forty years. A freeman held as a slave, no matter how many years, could never lose his status, but a slave living openly as a freeman for thirty years and a fugitive remaining free for fifty years could not be enslaved again. A debt not collected within thirty years was canceled (E 5, 8, 21; SP 3, 29, 1–30; FR 2, 11, 1–10).

Possession was the effective occupancy of physical property.10 Even if a man only occasionally resided on his property, he retained possession, provided that he did not abandon it. Workmen using another’s property did not have a right of possession. One could lose possession of real estate through abandonment, expulsion, seizure by another person, floods, or other natural disasters. Moreover, neighbors might demolish a collapsing house if the occupant refused to repair it. If movable objects, birds, and animals were lost, a man retained possession if he continued to search for them (E 5, 8, 22–27; SP 3, 30, 1–18).

An easement or servitude allowed one to use another’s land or buildings, without owning or possessing them.¹¹ For example, adjacent buildings might share gutters and supporting pillars and their height might be restricted so as not to impede the view or obstruct the light. A rural easement might be the right of way, or use of water from another’s irrigation channel, well, pond, or spring. A right of way had to be at least eight feet wide and where the road curved, seventeen feet, so that carts could pass. An easement remained in effect, even if the owner sold his property. An easement could not be placed on sacred property or municipal communal locations. Usufruct was an easement enabling someone to live in an owner’s house or land or use his animals or slaves and to reap the profits. The usufructuary had to maintain the property but would lose it if he did not use it over ten years. He could never acquire ownership or possession, and his right ended when the owner died. Usufruct of buildings or lands given to a city or municipality was limited to a hundred years (SP 3, 31, 1–27).¹²

The construction of new buildings oftentimes stirred opposition, as it does now. If a new structure intruded on another’s property or easements, the possessor could demand that the work be stopped. Essential repairs could not be halted, but if a building was in danger of collapse, a judge could order it to be demolished. He could also require that weak walls be strengthened and trees in danger of falling be cut down. No one could impede passage through the streets or a communal area by erecting a building. There should be at least fifteen feet between a building and the walls of a castle or a town. Nor should one build a house or shop next to a church, unless it was devoted to the works of mercy.¹³ As the king was ultimately responsible for maintaining castles, city walls, walkways, bridges, and gutters, he should appoint capable persons to oversee them (SP 3, 32, 1–26).

Contractual Obligations

Next, the royal jurists, first in the Fuero real, and then at greater length in the Fifth Partida, discussed an array of contracts or legal obligations binding both parties, namely, loans, deposits, donations, purchases, exchanges, leases, sureties, pledges, and partnerships. The influence of Roman law and the thirteenth-century glossators is evident throughout. The Espéculo examined some of these topics in the missing eighth book.14

There were two kinds of loans, namely, the empréstito (lat. mutuum) and the préstamo (lat. commodatum) (SP 5, 1, 1).¹⁵ The first was a consumptive loan of something that could be counted, weighed, or measured, and required the borrower to return to the lender something of comparable worth at a specified time and place. Everyone could borrow, and all had to repay loans made by their subordinates. The borrower was also responsible for the loss of property loaned and would suffer the penalty agreed upon if he neglected to repay the loan at the appointed time (SP 5, 1, 1–10; FR 3, 16, 1).¹⁶ For example, in 1268 Bishop Pedro Lorenzo of Cuenca and several Spanish scholars at the University of Bologna promised to repay Bartolomeo Ammanati for the loan of 1,725 Pisan libras parvas. Two years later, Archbishop Sancho II of Toledo directed Arnau de Ebrau to pay a debt owed to Sienese merchants at Mont-pellier. He also promised to compensate Arnau for various services at the fair of Brihuega at All Saints’ next. Peter Linehan indicated other instances when Spanish prelates borrowed money from Italian bankers.¹⁷

The most notable instance of an empréstito was the loan solicited by Fernando III from twenty-two Galician towns in 1248 for the siege of Seville.¹⁸ Six men from every parish were chosen to assess everyone’s property. As the rate of payment was 5 percent, anyone with holdings worth one thousand maravedís would lend fifty; worth five hundred maravedís, twenty-five; and worth three hundred maravedís, fifteen. Anything less than that was exempt. The king, asserting his need and not any right, promised to repay the loan when he next collected moneda forera. Alfonso X’s assurance to Burgos in 1255 and to other towns in 1255–56 that he would never require an empréstito against their will suggests that he had already done so.¹⁹ His demand, in 1258, that Oviedo, and perhaps other northern towns, give him an empréstito of twelve hundred maravedís to maintain his fleet indicates that he continued this practice.²⁰ In the chancery formula for an empréstito Garcí Pérez testified that he borrowed twenty maravedís from Gonzalo Vicente and, binding himself, his property, and his heirs, promised repayment within six months on penalty of paying double the amount. He authorized Gonzalo to sue him if he did not repay it on the designated date and place (SP 3, 18, 70; E 4, 12, 37).

The préstamo was the loan of an animal, a slave, or an object for a certain time, without expectation of recompense. If the lender failed to mention any defect, he would be liable for any loss incurred by the borrower. The latter was obliged to take care of the property and return it when asked. Should he lose it through no fault of his own, he would not have to pay for it, unless he placed it at risk. If, after reimbursing the owner, he found it, he could keep it. He had to pay the lender’s expense in suing for recovery if it was not returned on time (SP 5, 2, 1–9; FR 3, 16, 2–6).21 The chancery formula for a préstamo stated that Sancho received from Rodrigo a mule of a certain color valued at seventy maravedís to be ridden or driven with a load to a certain place. Within one month Sancho had to return it or its appraised value and to compensate any injury or loss. If he failed to return it on time, he would be penalized double the assessed amount (SP 3, 18, 71).

In 1254 the king gave the village of Caspuenes to his brother Sancho I, archbishop of Toledo, as a préstamo for life, but if Sancho received a higher ecclesiastical dignity, Caspuenes would revert to the king. When María Gutiérrez complained in 1277 that Alfonso Téllez promised to pay a debt owed to her father from his holdings in Córdoba, now in possession of the cathedral chapter, the king directed the chapter to pay her.²²

The imposition of penalties for late payment of loans was a common device for evading the church’s prohibition of interest or usury. Both parties knew that a penalty clause was interest in disguise.²³ In 1272, for example, three citizens of Burgos promised to pay the cathedral chapter 1,520 maravedís, half at Christmas, and the other half at Easter; but if they did not, they would be penalized ten maravedís for each day overdue. Three years later three clerics agreed to a daily penalty of four maravedís if they failed to repay loans of four thousand maravedís on the same feast days. Nicolás de Mazuela also pledged to pay a debt of 350 maravedís to the chapter of Burgos, with a daily penalty of two maravedís.²⁴ A borrower was not obliged to pay a penalty demanded by a known usurer, as any agreement involving the fraud of usury was not binding (SP 5, 11, 40). The right of Jews to lend money at interest was casually acknowledged and will be discussed in the following chapter (SP 5, 12, 22).

A deposit (condesijo) was a transaction whereby someone entrusted an object to another person or institution for safekeeping. Other than expenses incurred, the custodian received no compensation. He had to return the object when asked, but if he refused, he had to pay double its value and would be declared infamous. If he lost it, he would have to pay for it, but ordinarily not if the loss was accidental. However, he should not return a weapon to an insane owner who might use it to harm someone. If the object was stolen, he should retain it until true ownership was proved (SP 5, 3, 1–10; FR 3, 15, 1–11).²⁵ A chancery formula recorded that Velasco deposited one thousand gold maravedís with Domingo who promised to return them when asked (SP 3, 18, 72). In 1252, Fernando III’s widow, Jeanne of Ponthieu, deposited twenty-six royal privileges for safekeeping with the Order of Calatrava.26 Infante Enrique also consigned to Calatrava Fernando III’s privileges concerning Morón and Jerez, but in 1253 Alfonso X demanded their surrender and destroyed them.²⁷

A freeman over twenty-five could make a donation, but one made under compulsion was invalid.²⁸ Those who could not make a donation included an insane person, a spendthrift, a man forbidden by a judge to dispose of his property, anyone plotting to kill or injure the king or his counselors or divide his kingdom, a heretic, or a convicted criminal. A son subject to his father’s or grandfather’s authority could only make a donation with his consent, unless he wished to dispose of property gained by military service in accord with the Roman law relating to peculium castrense.²⁹ A man who would be impoverished by promising to make a donation would not have to do so. If a childless man donated any of his property and then married and had legitimate children, his initial donation would be nullified (SP 5, 4, 1–8; FR 3, 12, 1–11; FJ 5, 2, 1–7). The chancery formula required the donor to state that either for life or for a limited time, he willingly donated a house or other property, with its entrances, exits, and appurtenances, to be held by the recipient por iuro de heredad, that is, in full ownership with the right to bequeath it to his heirs (E 4, 12, 38; SP 3, 18, 67).

A donation by an emperor or king, whether written or not, was always valid, but sovereign rights, such as coinage and criminal justice, were never conceded. Donations could be made to ransom captives, rebuild churches or houses, or as a dowry or marriage gift. A gift worth more than five hundred gold maravedís to a church, monastery, or hospital should be reported to the local judge.³⁰ A donation could be revoked if the recipient verbally dishonored the donor, accused him of a crime punishable by death or loss of limb, caused him to be declared infamous, damaged his property, attacked him, or tried to kill him. An infirm donor in fear of death could rescind a donation if he recovered or changed his mind, or if the donee predeceased him (SP 5, 4, 9–11; FR 3, 12, 7).

In repopulating Andalucía, Alfonso X made numerous donations of heri-table estates. Ordinarily he identified the property by its Arabic name or the name of the previous Muslim owner and often assigned a new one. He mentioned the entrances, exits, woods, streams, pastures, vineyards, and boundaries of a village or a town. If the donation included an oil press, he reserved a thirtieth of production for himself. When he granted Seville several water-mills, he stipulated that the flow of water through the pipes into the kitchens and gardens of the royal alcázar should be uninterrupted.³¹ In 1255, when granting several villages to Burgos, he reserved his rights and revenues. The royal merino would administer justice in the villages while municipal alcaldes whom he appointed would judge townspeople according to the municipal fuero. No familiar or officeholder in a religious order was permitted to hold a public office or be involved in the city’s affairs.32 Ceding several villages to the archdiocese of Seville in 1260, he similarly reserved the right to make war and peace, coin money, collect moneda forera, and administer justice. The royal adelantado could enter the villages, and the municipal alcaldes could hear appeals from the archiepiscopal court. A final appeal could be directed to the king himself.³³ Letters of grace were a form of donation whereby the king rewarded a special service or recognized a recipient’s outstanding qualities (SP 3, 18, 49–51). For instance, in 1256 he gave his brother Archbishop Sancho I of Toledo six thousand maravedís annually.³⁴

Buying and selling personal and real property was known in Roman law as emptio venditio or compraventa in Castilian.³⁵ A sale was a contract whereby an owner transferred ownership of movable or immovable property for a fixed price to a purchaser. No one, other than a man who abused his slave, could be compelled to sell his property. As guardians were forbidden to purchase property belonging to their charges, so also royal officials could not acquire property in districts under their jurisdiction. A written bill of sale should name the seller, the purchaser, the asset being sold, and the price and should be witnessed. A buyer who made a down payment and then changed his mind or failed to pay the price on time would lose his money; a seller who reneged on the sale would have to return twice the amount (FR 3, 10, 2–3, 15). One could also sell futures, for example, the future yield of a crop, the offspring of a pregnant slave or animal, or the profits of an expected inheritance. One could not sell a free man, a sacred thing, a public place, rivers, or fountains. The sale of toxic substances was forbidden, but a poisonous drug such as scammony, which could be neutralized by mixing it with other ingredients, could be sold for medicinal purposes. No one should sell weapons to enemies of the faith, or another’s property, or fraudulently substitute one property for another. The sale of a house included all its essential parts, though the seller retained movable goods, livestock, wine and oil presses, and wine cellars, unless they were specifically included in the sale (SP 5, 5, 1–31; FR 3, 10, 8–9). The buyer only acquired ownership after paying the full purchase price (E 5, 8, 20; SP 3, 28, 46).³⁶ When repopulating Seville and Murcia, Alfonso X authorized Christians to purchase lands from the Moors.³⁷

The chancery formula for a bill of sale required the seller to identify himself, the purchaser, the property sold, its location, boundaries, entrances, exits, and appurtenances. The scribe recorded that the price was just and that the transaction was properly witnessed. Yielding his rights and transferring possession to the buyer, the seller declared that he had not sold the property to anyone else; nor had he given it in pledge or encumbered it in any way (SP 3, 18, 56; E 4, 12, 35). Bills of sale of holdings in Seville followed the chancery formula.38 Among them was the sale of an orchard in Seville by Jacobo de las leyes in 1274.³⁹ Other forms had to be used by sureties guaranteeing a sale, by a wife consenting to a sale by her husband, for sales by a minor or his guardian, a personero representing a client, or the executor of a deceased person, or by a church or monastery (SP 3, 18, 56–65).

Once a sale was finalized, the buyer, though not yet in possession of the property, was entitled to any increase in value, but provided that the seller was not responsible, he also had to absorb losses. Should the value of goods sold in bulk and on sight increase or decrease, he would reap the benefit or suffer the loss. The seller guaranteed the integrity of the property being sold, but if it deteriorated while in his possession he had to bear the cost. I f he neglected to notify the buyer of an encumbrance, or a slave’s defect, or an animal’s unpleasant trait, disease, or blemish, he had to return the purchase price and compensate the buyer. If a third party claimed ownership of the property being sold, the seller had to make good the loss if a court nullified the sale. When a seller agreed to sell for a certain price but received a better offer, he had to allow the original buyer to meet the higher price. If property given as security was not redeemed on the assigned date, the surety could purchase it. The seller could recover property sold by refunding the sale price (SP 5, 5, 23–27, 32–43; FR 3, 10, 7).

A buyer or an agent using his own money could purchase property on behalf of another but had to deliver it to him. A buyer could retain property purchased with another’s money, except a knight in royal service, a minor, a church or prelate, or a husband using part of his wife’s dowry with her consent. When property was sold to two men on different occasions, the one taking possession could keep it, but the seller had to refund the purchase price to the buyer who lost out. If the king sold or donated someone else’s property, the owner should be reimbursed for the appraised value. A fraudulent sale should be nullified and the purchase price returned. For example, a seller might deceive a buyer by selling the expected issue of a female slave or an animal known to be sterile, or the yield of a vineyard that he knew would not bear fruit, or a building that he knew had been torn down, or trees that were uprooted. A sale could also be canceled if the seller falsely alleged that he was compelled to sell his property at less than its true value, or if the buyer failed to fulfill his side of the bargain, or if a taxpayer secretly sold his property so as to evade payment of taxes, or if a slave sold his deceased master’s property (SP 5, 5, 48–67; FR 3, 10, 5–6, 13–14, 16).

Teofilo Ruiz pointed out that most of the documentation relating to real estate transactions in northern Castile comes from ecclesiastical institutions. The property sold was usually a freehold. Sellers were individual laymen, married couples, widows with children, or brothers and sisters. The boundaries of fields, vineyards, and orchards were usually recorded, but the extent of the property was seldom specified. The cost is no guide as to size, as the price might vary depending on quality or location.40 Purchases and sales made by the monastery of San Salvador de Oña and the bishopric of Burgos follow that pattern. Plots of indeterminate size, wheat fields, vineyards, pastures, woodlands, springs, and mills were sold for varying amounts. Boundaries were specified, and the seller confirmed that he had received the entire purchase price and transferred all rights to the purchaser. Violation of the agreement was fined double the amount of the sale price.⁴¹

The exchange of an animal or an object for another was known as permutatio in Roman law (FR 3, 11, 1–5). A contract for an exchange, whether verbal or written, required the consent of both parties and was bound by the same rules as a sale.⁴² The chancery formula required each person to declare that he lawfully possessed the property he wished to exchange and to specify its boundaries and appurtenances (SP 3, 18, 66; E 4, 12, 36). Also similar to an exchange were the four kinds of contractus innominati or unnamed contracts, each requiring certain actions (SP 5, 6, 1–5).⁴³ In 1257, for example, the king induced the bishop and chapter of Cuenca, in exchange for three salt pits, to abandon a toll on transhumant sheep. A year later, he gave Córdoba the fortress of Cabra in exchange for Poley, known later as Aguilar de la Frontera.⁴⁴ The monks of San Salvador de Oña also participated in several exchanges of meadows, wheat fields, and other lands.⁴⁵

In discussing the hiring of services or rental of property, the royal jurists explained the Roman process of locatio conductio (location conduction in modern law), whereby a locator hired a conductor to perform a service or pay rent.⁴⁶ A chancery formula stated that Pedro Martínez pledged to copy a book for the dean of Toledo for thirty maravedís, and not to copy another book until he finished this one. In another formula Remón rented Guillén a pair of mules worth one hundred maravedís to carry a load to a certain place within a certain time. In addition to paying a monthly charge, Guillén would feed them and return them or their equivalent value at the appointed time and place (SP 3, 18, 75–76).

Among other instances of contracted services were these. If a judge, a royal official, or a master of sciences receiving an annual salary died during the year, his heirs were entitled to his full stipend because his work was interrupted involuntarily. However, an advocate who failed to complete his client’s suit would not receive his fee; if he died during the proceedings, his heirs would receive only a portion of his fee. Artisans, physicians, surgeons, farriers, and others were accountable for mistakes caused by negligence or lack of knowledge. Teachers or master craftsmen who accidentally killed or maimed their students or apprentices had to compensate the victims’ families. Owners had to be reimbursed by dyers who damaged cloth, or by men who rented leaky casks or knowingly rented contaminated pasturage. Careless shepherds were responsible for lost or injured sheep, as builders were for performing shoddy workmanship. However, if the owner falsely alleged that the structure was ill made, a judge could compel him to pay the builder what he owed (SP 5, 8, 9–17).

An inattentive renter who lost goods being transported had to make good the loss. If a slave or animal died, or a ship was destroyed by a storm, or a house burned down, or a mill was swept away by a flood, the renter would not be accountable unless he was at fault. However, he would have to pay damages if he promised to do so in his rental agreement, or if he delayed returning the property and it was damaged, or if he caused an accident. A man who rented a warehouse would not be responsible for loss of a product stored there unless he promised to care for it or if he were negligent. Inn-keepers and sailors had to safeguard the property of pilgrims and travelers and could be charged for any loss or theft, unless they previously disclaimed responsibility (SP 5, 8, 8, 25–29).

Anyone who could buy and sell real estate could also rent it, but knights and royal officials ought not to rent lands from others because that would interfere with their service to the king. Rental contracts made in accordance with “the laws of this our book” might be for a limited time or for life and could be continued by the heirs of both parties. Usually rent was payable either at the beginning of the lease or at the end of the year. A tenant who was in arrears or neglected to take proper care of a house or allowed unsavory men or women to use it could be evicted. If the owner needed a place to live, or if the rented house was collapsing, he could evict an honest tenant but had to provide him with another dwelling. If the owner sold the house before the lease expired, the buyer could evict the tenant, unless the owner permitted him to remain until expiration of the lease or granted him a perpetual lease. A tenant in possession for three days after the end of the lease had to pay an additional year’s rent. Just as the tenant was liable for damages, so the owner had to reimburse the tenant for improvements (SP 5, 8, 1–7, 18–24; FR 3, 17, 1–9; FV 4, 3, 1–5).

The contract known as emphyteusis differed from a sale or ordinary lease.47 It was a long-term lease either for the life of the lessee and his descendants or for a fixed term. Although the lessee paid an annual rent to the lessor who retained ownership, the lessee could sell, alienate, or give the property as security or transmit it to his heirs. If he wished to sell it, he should offer it first to the owner. That seems to undercut the owner’s right of ownership, but if he did not buy it back he could not prevent its sale to a new lessee. The owner would be responsible for damage caused by a natural disaster, and the lessee would not have to pay rent unless an eighth of the property remained. The owner would recover possession if the lessee died without heirs or failed to pay rent for three years or if the lease expired (SP 5, 8, 28–29).

In the first of three rental formulas, Abbot Fulan (So-and-So)48 and his monks rented a house with all its appurtenances to Fulan (So-and-So) and his descendants to the third generation, subject to an annual quitrent of so many maravedís. If the tenant wished to sell the property, he had to inform the abbot, who would give the new occupant the keys in return for a pound of wax or a gold meaja, a coin worth about half a maravedí. The second formula stated that Gonzalo rented houses to Pedro for one year beginning at Michaelmas for thirty maravedís, half payable at the outset and the remainder at the end of the year. In another instance, Álvaro rented a vineyard to Diego for one hundred maravedís and a pair of capons at Michaelmas (SP 3, 18, 69, 73–74).

As examples of the process, in 1251 the monks of Oña rented a house to Pedro López for life at an annual rent of twenty-nine maravedís payable at Martinmas. He had to maintain it and was forbidden to sell, lease, or transfer it. The monastery would own any willow or elm trees that he planted. If he lost half the yield or more due to hail, snow, or drought, and could not pay the rent, the monks would provide help with the harvest, to be divided equally between them. Three years later they leased land for life to Miguel Domínguez, who agreed to pay four maravedís at Easter for the first two years and thereafter six maravedís. He was required to build good houses and dwell there and to fulfill other obligations as set forth in the previous document. The monks also rented houses, wheat fields, vineyards, and mills, usually for life, for money or bushels of wheat or barley, or even wax, payable in March or on the Assumption or Martinmas.⁴⁹

The diverse forms of contract recognized by Roman law included stipulations, or verbal promises to perform a certain act or to observe certain conditions.⁵⁰ The language had to be precise, lest there be any confusion. Those who could not make a binding promise included a deaf mute, a wastrel, an insane or retarded person, a child under seven, a ward between seven and fourteen, and a minor under twenty-five without his guardian’s consent; but a minor between fourteen and twenty-five lacking a guardian could do so. Neither a father nor a son could compel the other to satisfy a promise, except with respect to the son’s profits from military service.51 One could not make a promise in the name of someone over whom one had no control, but a personero could do so in the name of his principal. Promises were of three kinds: (1) a simple promise to give something to another or to perform a service; (2) a promise to be carried out on a certain day; and (3) a conditional promise. The parties had to be present, the object had to be clearly identified, and the schedule for completion and any conditions spelled out. Should one making a promise die before executing it, his heirs had to fulfill it. If an animal died or was injured, the one promising it would not have to pay for it unless the event occurred after the agreed date of delivery. One could promise the fruit of a vineyard or the child of a female slave, but not something that would never exist or a service that could never be performed. One could not promise sacred property or the enslavement of a freeman. A Jew or a Muslim could promise a Christian slave to another Christian, but a Christian could not promise to enslave another Christian. A promise made under duress or not to prosecute a criminal was invalid. The parties could not promise to inherit each other’s estate lest that encourage one to cause the other’s death. A promise to kill someone, to commit a crime, or to collect usury could not be enforced. For example, a promise to pay thirty or forty maravedís for a loan of twenty (a rate of interest of 50 percent to 100 percent) was usurious and would be invalid. Penalties might be imposed for failure to fulfill a promise, unless a legal impediment such as illness or a flood prevented it (SP 5, 11, 1–40).

Fulfillment of Contracts

As assurance that a contract would be fulfilled, one might name a surety or trustee (fiador; lat. fidejussor).⁵² If his principal defaulted, the surety’s person and property would be at risk, as chancery formulas stated (SP 3, 18, 57, 70). Barred from acting as sureties were knights in royal service, bishops, clergy, monks, slaves, minors, and women “because it is not proper for women to be involved in litigation” and “to go to places where many men gather and to do things contrary to chastity or the good customs that women ought to observe” (SP 5 12, 2). Though exempt because of her natural simplicity and weakness, a woman could act as surety for money paid for freeing a slave, for a dowry, when she renounced her right not to serve as surety, when she was assumed to be the principal for whom she acted as surety, when she was paid to be a surety, when, by dressing as a man, she deceived others into believing that she was a surety, when she was surety for her own acts, and as surety for another whose property she would inherit. A minor and his surety who were defrauded would not be accountable for any sum involved (SP 5, 12, 1–4; FR 3, 18, 6; FV 3, 6, 1–7).

There were two kinds of suretyship: an obligation according to law and nature, whereby one, though unwilling, could be compelled to fulfill a contract;53 and a natural obligation that a human being should carry out, but which could not be enforced in court. A surety’s obligation might be conditional or limited in time. If a debtor defaulted, his surety could be sued for the amount owed. The surety could be released from his obligation if his principal failed to pay his debt on time or wasted his property. A surety who, as promised, neglected to produce in court a person accused of an offense incurred a penalty. A surety’s heirs inherited his responsibility. Several obligations were similar to suretyship. For example, a man, whether orally or in writing, might order another to perform an act on a specific day or under certain conditions. Somewhat different was an obligation willingly assumed. For example, friends might take care of an absent owner’s property; if so, he should cover their expenses. An abandoned child, when grown, was not obliged to reimburse a man who reared him, but he should honor him for the rest of his life. However, a mother, grandmother, or step-father could recover expenses for caring for their children (SP 5, 12, 5–37; FR 3, 18, 1–14).

A surety guaranteeing a sale was described variously as “fiador de sanar e de redrar a fuero de la tierra,” “fiador de redrar e de otorgar a fuero de tierra,” “fiador de riedra,” “fiador de anno e dia,” or “fiador por siempre.” Those phrases might be translated as “surety to make good and confirm [the sale] according to the fuero of the land,” “surety to confirm and grant [the sale] according to the fuero of the land,” “surety for a year and a day,” “surety forever.”⁵⁴ Aside from the last two phrases, no time limit was imposed. In 1254, for example, when the monks of Oña purchased a plot, two sureties assumed responsibility, one in general terms and the other for a year and a day. Three years later Roy Díaz sold a mill to the monastery for one hundred maravedís, payable in two installments on All Saints’ Day and 1 March, and named two sureties, one for a year and day and the other forever.⁵⁵

Whereas a surety personally guaranteed a certain action, a pledge (peño, lat. pignus) was movable property delivered to another for the same purpose.⁵⁶ A chancery example noted that Garcí Pérez, as security for repayment of a loan, pledged a house to Gonzalo Vicente, giving him full power to take possession and dispose of it if Garcí did not pay the debt on time (SP 3, 18, 70). In 1256 Alfonso X declared that one could only take a pledge from a citizen of Burgos for his personal debts, and not to guarantee payment of tribute owed to the king.⁵⁷ In the previous year, perhaps intent on excluding the application of canon law, he required religious orders giving pledges in Burgos to observe the municipal fuero.⁵⁸

A pledge might be voluntary or mandated by a judge. Whether conditional or for a specified time, a pledge should be clearly identified. One could pledge the expected yield of a vineyard or debts owed to the one making the pledge. A freeman could not pledge himself, except to secure the release of a captive, or when, suffering from hunger, he pledged his son. Farm animals and implements could not be pledged; nor could sacred property, a concubine and her children, personal servants and slaves, one’s personal effects, and a man’s horse and weapons. The pledger retained his rights if the pledgee altered or improved the pledge and was entitled to compensation if he removed, lost, or caused it to depreciate. In order to recover it, the pledger had to satisfy the debt it secured and pay the pledgee’s expenses for maintaining it. In case of a silent pledge, it was understood that certain property secured an obligation. For example, a husband’s property secured his wife’s dowry; a guardian’s property secured his administration of his ward’s estate; and a father’s property secured his use of his son’s property. The property of a royal tax collector or of a taxpayer was security that taxes owed to the king would be paid (SP 5, 13, 1–50; FR 3, 19, 1–10; FJ 5, 6, 1–4; FV 3, 7, 1–5).

Payment of Debts

Once a final payment was made or a release was obtained, the debtor, his sureties, pledges, and heirs were no longer bound by any obligation. There were as many types of payments and releases as there were debts and obligations. For example, in a chancery formula Aparicio acknowledged receipt of one hundred maravedís as payment of a debt, tore up the instrument recording it, and released his debtor and his heirs from any further demand. Similarly, Pero Ruyz affirmed that he received one hundred maravedís alfonsís from Juan Pérez in payment of a loan or purchase, and returned to him the cancelled document detailing it (SP 3, 18, 81).

A debt should be paid in the form originally agreed upon, or in a manner approved by a judge.59 Similarly, if a man could not do something as promised, a judge could order him to do something else and reimburse the other party for damages. Lest he have to make a payment a second time, a debtor owing a minor, or an insane person, or one suffering dementia, or a wastrel, with a judge’s consent should pay him directly or his guardian. Should the creditor be unwilling to accept payment on the due date, the debtor should entrust the money to a good man or to a church sacristy and thereby be free of the debt. Unless he was negligent or committed fraud, a debtor was not liable if an animal or other property died or was lost before the date for its return. When paying one of several debts, he should designate the one to which it should be credited; otherwise, the money would be apportioned equally among all his debts, provided that none were usurious. When he had multiple creditors, the first to win a judgment against him should be paid. When contracts were renewed or extended, previous obligations were annulled. For example, a debtor who, with the consent of his creditor, transferred his debt to a third person would be released from his obligation to pay. If the conditions in a new contract were not met, the debtor could be sued under the terms of the previous contract. A man who inadvertently believed that he owed a debt to another and then assumed an obligation due to a third party was required to pay it, though he could ask his creditor to release him (SP 5, 14, pr., 1–19; FJ 5, 6, 5).

The Roman process of compensatio enabled men who were creditors and debtors to one another to settle their obligations by counterbalancing their debts.60 That could easily be decided if the debts could be weighed, measured, or counted and were equivalent. Partners could counterbalance damages and losses incurred through each one’s fault or fraudulent acts. Sureties could offset debts that they secured, and a son, on his father’s behalf, could offset the debts of his father and his creditor if they were of equal amount. No one, by asserting that the king or town council owed him an offsetting debt, could claim exemption from taxation to maintain property set aside for public purposes (SP 5, 14, 20–27).

Men occasionally regretted paying a debt and tried to obtain a refund. Excepted from this were minors, women, simple laborers, and knights. Anyone who proved that he mistakenly paid a debt that he did not owe could recover his money; but someone, other than a minor, who knowingly paid a debt that he did not owe could not recover it because it was presumed to be a gift. A man who paid a debt but was unsure whether he owed it could obtain a refund. An heir or executor could not recover bequests on the grounds that a will was improperly drafted or because he was unaware that the law did not require him to pay the bequests. The fault was his because the king expected everyone, other than knights, women, minors, and simple laborers, to know his laws. Money advanced under a condition that might never be fulfilled could not be recouped. Anyone ordered to pay a debt could not later claim that as the judge was in error, the money should be returned, unless he proved that the judge was deceived by false witnesses and forged documents. A man who discounted a portion of a debt or agreed to less advantageous terms could not overturn that contract unless he could prove that he was defrauded (SP 5, 14, 28–34).

Numerous other situations involved recovery or nonrecovery of questionable payments. A marriage gift, once given, could not be reclaimed, nor could the cost of rearing someone in one’s home. A person could recoup money spent to pay the debts of a deceased person whose heir he mistakenly believed he was, or to pay debts that he did not owe. If he freed a slave that he received in payment of a debt that he did not owe, he had to pay the slave’s estimated value. Should he give two things to another person, though he owed only one, he could ask for return of the one he preferred. He was also entitled to payment for work that he mistakenly thought he had to do. In exchange for releasing a man from a contract, he could demand performance of another service. He had to return property accepted on condition of doing a service if he neglected to do it. A rightful heir could demand return of legacies wrongly distributed under a defective will. No one could keep property accepted for committing a crime or an immoral act. A captive could recover money paid to gain his freedom if no action was taken on his behalf. Someone induced by fraud or threats to promise money could not recoup it because no one was bound to abide by a promise unwillingly made. A woman, knowing that she could not marry, could not reclaim money that she gave to a prospective husband. Whatever a prospective husband and wife, knowing they could not marry, gave to one another was forfeited to the king, as was a bribe given to a judge. Money given to a woman to commit sexual acts could not be recovered if she refused to do what she promised. A criminal could recover money paid to silence someone threatening to expose him, because everyone should protect his reputation (SP 5, 14, 35–54).

As one might expect, not every debtor could meet his obligations. Unable to do so, and retaining only the clothes on his back, he had to surrender his property to a judge for distribution among his creditors. First, however, the judge should allot certain portions to various persons for their comfort: the debtor’s direct descendant or immediate ancestor; his or her spouse; a freedman; a partner; or to settle a suit concerning a gift. The remainder should be sold at auction and the proceeds allocated to the creditors. A debtor who refused to pay his debts or yield his property to the court should be imprisoned until he did so. If a debtor attempted to thwart a court order to surrender his property by alienating everything, no one should purchase it. Property transferred by a debtor to evade payment had to be returned, and his creditors could sue within a year to revoke a fraudulent transfer (SP 5, 15, pr., 1–12).

Honrras Señaladas Dio Nuestro Señor Dios al Ome sobre Todas Las Otras Criaturas

The influence of Roman law on Alfonso X’s exposition of the law of property is readily apparent. The Third Partida distinguished between public property that could be used by everyone and private property, whether movable or immovable, that the owner could use as he wished, provided that he did not intrude on his neighbor. In contrast to ownership, possession referred to the tenancy of property owned by someone else, though a possessor, by virtue of prescription, might acquire full ownership after a term of years. Easements facilitated movement through another’s property, and usufruct, a type of easement, allowed one to use another’s property for a fixed term or for life, but without ever gaining ownership. The Fifth Partida further developed the law of property by considering various contracts with their attendant legal obligations. They included deposits, whereby one temporarily entrusted something to another without offering remuneration, and donations, sales, and exchanges, which conferred ownership of property. A landowner, without ceding ownership, might profit by renting his property for a limited time or for life. Emphyteusis was a long-term lease allowing the lessee and his descendants to utilize the property as though it were their own.

The two types of loans were also notable contracts: the empréstito requiring the borrower to return something of equal value; and the préstamo allowing the borrower to use something for a limited time without cost. Penalties imposed if the terms of the loan were not observed often screened interest or usury. One could also contract for the services of workers who could be held accountable for errors or damages. Also having the binding force of contracts, whether oral or written, were promises to give something to another or to perform a service at a specified time or subject to a condition. Sureties risked their persons and property to guarantee fulfillment of a contract. Pledges of movable property served the same purpose. Once a person satisfactorily performed a service, or paid a required sum of money or rent, he was released from his contractual obligations. So too were his sureties and pledges.

From the earliest times human beings have claimed ownership of land and the animals that populate the earth. Christians and Jews found justification for that in the book of Genesis (1:28–29) wherein God commanded Adam and Eve to “fill the earth and subdue it.” The royal jurists who explained the complexities of the law of property were surely familiar with that biblical passage. As they remarked: “Honrras señaladas dio nuestro Señor Dios al ome sobre todas las otras criaturas” (Our Lord God gave man special honors over all other creatures) (SP 4, pr.). However, thirteenth-century Castile was not the idyllic world of the Garden of Eden. The Alfonsine laws clearly reveal that human beings, having lost their primitive innocence, were prepared to practice fraud and deception, to commit violence to enforce their claims, and to renege on contractual obligations freely entered into.