Page 220 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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EARLY MODERN DUTCH LAW
arranged a right to revision by Provincial Courts within their own boundaries.8 In the legal make-up of Holland, the province's inhabitants could first start proceedings in a lower court, the Schepenbank, vaguely resembling the Court of Alderman. From these courts one could appeal to the Provincial Court in The Hague.9 The last option for the litigant to pursue his right was the Supreme Court.10 The Supreme Court reviewed appeals in full.
Although the Supreme Court followed early modern court practice providing judgements without legal explanation, a considerable amount of its legal reasoning is revealed by Cornelis van Bijnkershoek (1673-1743, judge at the Supreme Court from 1704 to 1743).11 Bijnkershoek was one of the judges who took personal notes of some of the court's judgements which they deemed useful. Bijnkershoek did not order his notes thematically, for which reason he named them tumultuaria opera.12 Having sunk into oblivion, the notes were found gathering dust in the attic of a second-hand book store at the beginning of the 20th century. The Leiden professor Meijers (1880-1954) edited the manuscript and named it the Observationes tumultuariae. Bijnkerhoek's collection of summary accounts of court cases offers an intriguing insight into the daily practice of the Court with a jurisdiction over the region which had economically and culturally taking the lead in late 17th – century Europe.13 Bijnkershoek's son-in-law, Willem Pauw (1712-1787, judge at the Supreme Court from 1743 to 1787)14 continued his father-in-law's practice of recording cases in which he sat.15 The following cases reported by Bijnkershoek and Pauw figure in this chapter: 62, 339a, 379, 585nov., 906, 924, 1035, 1079, 1472, 1486, 1524, 1727, 1893, 2107, 2582, 2658, 2841, 3124, 3249.16
In addition to the notes of Bijnkershoek and Pauw, various other collections circulated with abstracts of Supreme Court cases.17 There are the collections made by judge Jacob Coren, who died with his boots on in 163118, Cornelis van Nieustad (1549-
8 9
10 Though there were cases in which a direct appeal to the Supreme Court was conceded, but these do not concern us here. Cf. Le Bailly and Verhas, Procesgids, pp. 13-14.
11 For biographical data see Star Numan, Cornelis van Bynkershoek, passim; J. van Kuyk, ''Bijnkershoek, Cornelis van', in: NNBW, vol. 1, pp. 533-535.
12 Bijnkershoek, Opuscula, vol. 2, pref. 5: 'Quod dum ago per hos... XV annos, natae mihi sunt XV et quod excurrit, Rerum Judicaturum Centuriae, tumultuaria quidem opera conscriptae'; Sirks, 'The Supreme Court of Holland', in: Judges and Judging, p. 241.
13 Bijnkershoek, Observationes tumultuariae, vol. 1-4, 1934; Pauw, Observationes tumultuariae novae, vol. 1-2 1964. Cases taken from the report of the latter are followed by the abbreviation 'nov. (novella)'. The cases reported (Observationes) by Bijnkershoek are referred to with their plain number. Usefool tools to explore Bijnkershoek's Observationes are the indexes made by Van Oosten, Systematisch compendium der observationes tumultuariae van Cornelis Bijnkershoek; Van Warmelo, Registers op die observationes tumultuariae van Bijnkershoek en Pauw and Sirks, Index in Observationes tumultuarias.
14 W.M.C. Regt, 'Pauw, Willem', in: NNBW, vol. 9, p. 777.
15 Sirks, 'The Supreme Court of Holland', in: Judges and Judging, p. 242
16 For an overview of all cases touching on the sale of defective things see Brom, Urteilsbegründungen, pp.
185–213; the mentioned cases are not discussed in the as of yet still unedited Observationes by Johan
van Bleiswijk (1649-1703); cf. Blom, Urteilsbegründungen, pp. 34-35.
17 Van Poelgeest, 'Mr. Johan van Bleiswijk', passim.
18 Coren, Observationes Rerum in Supremo Senatu Hollandiae, Zeelandiae, Frisiae, 1642; C.W. Bruinvis,
 Sirks, 'The Supreme Court of Holland', in: Judges and Judging, pp. 234-235.
Sirks, 'The Supreme Court of Holland', in: Judges and Judging, p. 238; Merula, Manier van procederen, 1.6.1, p. 26, note 2.
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