Warranty Of Title:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

The Hebrew term for warranty of title is (= "future"), the same word denoting the force of an attested deed which served as a mortgage on all lands owned by the debtor at the time of its delivery. Whenever lands or slaves were sold by deed, it was customary to insert a clause by which the seller bound himself to reimburse the buyer for any loss arising from a bad or defective title. The custom must have been very ancient; for similar clauses, which were frequently quite elaborate, are found in some of the oldest deeds of conveyance among the Assyrians and Babylonians. Warranty of title was implied, however, in every sale, whether of slaves, land, or chattels (Maimonides, "Yad," Mekirah, xix. 3; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 225), thus agreeing with the Talmudic saying (B. M. 15b) that an omission of the warranty was regarded as a mere oversight of the draftsman and was supplied by the courts. The parties to the sale were accordinglyrequired to make a special agreement to exempt the seller from all responsibility, such a document releasing him from every claim against him, even if goods had been sold him which were later claimed by the true owner, who had been deprived of them by robbery. The most dangerous flaw in the title seems to have been an outstanding bond against the seller, or against his grantor or ancestor, thus affording an opportunity to levy for debt on the thing sold.

The warranty secured the buyer not only against the loss of his lands or slaves, but also against the payment of mesne profits ( ), which he might otherwise have had to give the true owner for withholding possession; but the covenant of warranty, as far as it covered this uncertain and unliquidated liability, could be levied only on "free property," not on "subjected property" ( see Deed ). The Mishnah refers incidentally to mesne profits and to their inclusion in a warranty (Giṭ. v. 3), and thus limits the remedy ( see Tort ). The codes held that the ordinary and the implied warranty of title could be broken and give rise to a suit against the warrantor only in case the buyer was evicted or compelled to pay a bond debt by a Jewish court, although either the decision of a Gentile court or an adverse title appearing on the records kept by the Gentiles was to be deemed an overpowering force. Such a force might, however, have a special protective warranty, just as the seller might warrant against the loss of his field through the action of a neighboring river.