Page 279 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CHAPTER FIVE
Huber. This rather jumbled picture is reflected in Dutch legal practice with various scholars defending various periods.332
The remedy for lesion beyond moiety comes either with a four-year or a 30-year limitation period or, according to Grotius, a one year period.333 A majority of Dutch legal scholars seems to advocate the 30-year period. Contrary to what they thought about the remedies for defects, these scholars believed that the remedy for lesion beyond moiety was part of the action on the sales contract, for which reason they adorned it with a longer period of limitation. With the remedies for latent defects the opposite had happened. The remedies for price reduction and returning the thing available under the action on sales received the shorter aedilician limitation periods.
  Another issue which touches upon the concurrence of the remedies for defects or
 lesion beyond moiety pertains to their extension to lease. early modern Castilian law and
 legal humanism had not unequivocally extended the remedy for returning the thing
 because of a defect to lease. Contrariwise, the application of the remedy for lesion beyond
 moiety to lease was not at all considered problematic. A majority of Roman-Dutch and
 Roman-Frisian scholars similarly curtailed the extension of the remedies for latent defects
 to lease but extended the remedy for lesion beyond to that contract. Nonetheless, it
 remained unclear whether the latter remedy was actually used accordingly. Some scholars
 argued that the action on the lease contract was in many cases sufficient to solve issues
 about defects in a leased item. Neither do Bijnkershoek's Observationes contain cases
   about lease in which plaintiffs bring the remedy for lesion beyond moiety
.
The Provincial
 Court of Friesland, however, accepted the remedy for lesion beyond moiety in lease, while
 excluding the remedies for latent defects in the same contract.
 All in all, there is no trace of a strictly motivated preference in Dutch law for either
 one or other remedy for a defect in a thing which diminished its price by more than half its
  just price.
 332 See 5.2.1.3 and 5.3.2.
333 See 5.3.2.
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