Page 266 - 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
dispute between Glinstra, plaintiff, and Bennes, defendant, that the seller, who knew of a servitude on the land but had not informed the buyer, was liable for the buyer's entire loss.250 According to the Supreme Court in the years of Bijnkershoek's membership, the knowing seller would at most have been liable for price reduction.
Zacharias Huber gives an informing account of a case dealing with the same matter. In Nynke Heinsius c.s. vs. the church wardens of Akkerwolde (15 July 1720), the Frisian Court stated that
'...if he \[i.e. the seller\] denied that this servitude was owed, while being asked about it, he has acted in such a way as if he had given himself trouble to ensure that the ignorant buyer would not become acquainted with it. Thus, by concealing the servitude, he behaved in a blameworthy manner and in the end will not escape the remedy on the sales contract for the buyer's full loss, in accordance with D. 19.1.1.1, which action should not be mixed up with the remedy for eviction, which is incorrectly done by many'.251
Here again the Frisian Court condemns the knowing seller for all loss.
In the compilation of cases brought before the Frisian Court edited by Nauta, an
interesting reference to the case law of the Reichskammergericht is made in which we read a similar thing.252 It is said that Mynsinger, a judge in that Court, contends that the knowing seller who had not informed the buyer of a servitude should compensate all the buyer's loss. On the other hand, the ignorant seller should be held accountable for price reduction. Thus, Mynsinger also applies the rule of D. 19.1.13pr. indiscriminately to all defects and encumbrances, servitudes and taxes included, which view is adopted by the Frisian Court.
In sum, Roman-Frisian law held both knowing and ignorant seller liable in accordance with the general rule of liability for latent defects in D. 19.1.13pr. To contend that this is due to a wish to apply Roman law in a strict sense is dubious.253 As observed in the second chapter of this book, Roman law offered room for various interpretations.254 The Roman-Frisian approach is more likely the result of the efforts to bring the divergent liability regimes for contractual liability together into a more coherent system, a process
250 Beucker, Decisiones, c. 104, p. 118: 'Condemnatus igitur est reus ob reticentiam suam in id, quod actoris intererat, viam in legibus emptionis nominatim non fuisse expressam',
251 Zacharias Huber, Observationes, vol. 1, obs. 18, p. 60: 'sed et si negavit servitutem istam deberi cum esset ab eo quaesitum, adeoque id egit dedita quasi opera, ne cognosceret emptor ignarus aliquam servitutem deberi et sic improbato more versatus est in celanda servitute; tunc demum non evadet ex empto actionem in id quod interest, ex interpretatione Ulpiani in L.1, § I, d. Act. empt. quae nullatenus est confundenda cum actione de evictione, quod a multis perperam fit'; Lokin e.a., Het Rooms-Friese recht, p. 144ff.
252 Nauta, Decisien, q. 21, p. 39: 'Adde Mynsing, I, Obs. 37, 53 et 56, n. 7, cum seqq. ubi dicit venditorem scientem nec certiorantem \[,\] emptorem de qualitate rei teneri ad omnem interesse: ignorantem quanti minoris emptor fuisset empturus, si scivisset l. 2, § 1, \[D. 19.1.2.1\] l. Julianus in pr. \[D. 19.1.13pr.\] et l. quae, n. 39, de act. empt. \[D. 19.1.39\], l. Labeo de contr. empt. \[D. 18.1.21\]'; Lokin e.a., Het Rooms- Friese recht, p. 157; Mynsinger, Centuriae VI, cent. I, Obs. 56, no. 7, p. 37.
253 Lokin e.a., Het Rooms-Friese recht, p. 161.
254 See 2.2.4.
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