Page 269 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
commerce.259
Noodt, also in keeping with Grotius, theoretically underpins the existence of a
remedy for what he calls 'error in the price' with the 'rationale of maintaining society'.260 As such, he demonstrates that early modern scholastic thought had, via Grotius, persisted in Roman-Dutch legal vocabulary at a later stage.261
Roman-Dutch legal practice demonstrates that the remedy for lesion beyond moiety frequently occurred in legal proceedings as a valid remedy. In one of Nieustad's reports of cases brought before the Supreme Court of Holland, Zeeland and West-Friesland we read that in 1594 a seller of a plot land sued for lesion beyond moiety. Though his case was dismissed because the sale had been concluded in an auction, it nevertheless proves that the remedy for lesion beyond moiety was seen as a valid remedy.262 Van den Sande in his Decisiones also mentions various cases in which the plaintiff successfully sued on the ground of being prejudiced for more than half the thing's value or the price paid.263
Furthermore, Bijnkershoek and Pauw treat the remedy for lesion beyond moiety with all the consideration a valid argument deserves. Their Observationes mention at least eight cases in which the remedy played a role.264 In a 1704 case, in which the seller is sued for lesion beyond moiety, Bijnkershoek among other things remarks that
'however much they tried to substantiate it, the efforts of the curators to prove dolus were entirely fruitless. The seller was a creature free from fraud and deceit... of whom it is proven that he has not even tried the natural approach of circumventing the curators or praising his wares as being of great worth, something though that both parties are allowed to do'.265
Bijnkershoek here demonstrates familiarity with the distinction between circumventing the other party and fraud which is bound up with the remedy for lesion beyond moiety. To the extent of a prejudice of more than half a thing's just price, buyers and seller were allowed to circumvent each other.
In Roman-Frisian legal practice the remedy was also accepted. Ulrik and Zacharias Huber mention a case before the Provincial Court of Friesland in 1720 in which a buyer brought
259 Huber, Praelectiones, to D. 18.5, no.72, p. 987; Tulden, Commentarius, to C. 4.44, no. 1, p. 229: 'Et salubri sane temperamento lex secunda prospexit, ne vel immodica inaequalitas justitiam proculcet, vel omnimodae aequalitas norma refrigeret, turbetque commercia, omni spe lucri exstincta'.
260 Noodt, Opera omnia, vol. 2, to D. 18.5, p. 410 \[left column\]: '... error in pretio... ut permutatione mercis et pretii temporariae indigentiae subveniatur, hoc fieri, suadet ratio tuendae societatis'; cf. Voet's 'observed equality in contracting'. Voet, Commentarius, vol. 3, to D. 18.5, no. 4, p. 457: 'Corrigenda sit iniquitas manifesto... ut iudex ex natura actionum... quantum actori tribuendum sit, reducat non observatam in contrahendo aequalitatem'.
261 More on Grotius' natural law reasoning behind the remedy for lesion beyond moiety in 6.3.
262 Nieustad, Vonnissen, no. 75, p. 157.
263 Van den Sande, Decisiones, 3.4, def. 11-17, pp. 204-213.
264 Brom, Urteilsbegründungen, p. 234, note 607. Brom does not mention all. He discusses the remedy's
application by the Supreme Court on pages 234-248.
265 Bijnkershoek, Observationes, vol. 1, obs. 62, p. 19: 'Erat venditor animal sine fraude doloque... Et
constabat ne quidem naturaliter circumvenisse Curatores, iisve merces suas impense commendasse, quod tamen utrumque venditori licet'.
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