Monday, January 20, 2020

More Than a Contract II, Premo with J. Mansilla

In the last blog, we discussed how improvised legal deals made far from notarial offices helped the inhabitants of Lima get back on their feet again after a massive earthquake and tidal wave in 1687. But even in ordinary times, informal tratos were recognized as legally—and socially-- binding. (cont'd)

A legal battle between two elite women in Lima in the late seventeenth century, read carefully, uncovers a whole dimension of paperless law that required no official sanction.  Doña Silvestra de Navarrete and her stepmother, Doña Constanza de la Cueva, were battling over the belongings of the late Sebastian de Navarrete, Silvestra’s father. Constanza demanded that Silvestra, universal heir to Navarrete’s fortune, return the dowry she brought into the marriage. Silvestra refused, claiming Constanza’s dowry contract contained false information; the bride’s family never delivered the dowry’s value. Constanza called for the testimony of a black-veiled nun of one of the large convents in the city, who claimed that she had sold Navarrete a slave for 500 pesos, which he paid for from cash taken from Constanza’s dowry. There was no written document to prove this transaction, but the nun testified she provided an “orden y libranza bocal” (an oral receipt) as confirmation of the payment.[1]

That the judges of the Spanish empire accepted testimony about “oral receipts” is only one measure of the significance of extrajudicial legality in everyday life in colonial Latin America. More important perhaps was that the parties adhered to their agreements. Navarrete, the dead man whose heirs introduced evidence of off-the-books tratos as they haggled over his inheritance, himself had been party to a verbal agreement over the dowry of the very daughter who, years later, challenged the validity of his wife’s dowry contract. When Silvestra was still a small girl, Navarrete began to accumulate land in a nearby valley for her dowry. When some adjacent property became available, he faced a bidding war with the Jesuit order, which also wanted the land. Instead, the Jesuits offered to sublet the land to him through an unofficial verbal “pact.” None of the parties recorded the pact on paper, but each faithfully fulfilled their part without official intervention. After Navarrete died, Silvestra tried to renew the deal but the Jesuits refused, sending her into court and exposing the unwritten world of tratos beneath written legal documents.

Historians get lucky when they cross paths in the archives with subjects like Silvestra, who insist on the formalization of their disputes and who question the veracity of contracts. We are, in the end, beholden to them for our glimpses into the world of paperless law beyond the courts.  But the elusiveness of this realm of law does not indicate that it was unsanctioned, as Bianca discusses next.

-Bianca Premo

[1] Archivo General de las Indias, Lima, 293, f. 103-104.

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