Page 383 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SEVEN
In keeping with the demand for a short term in article 1547 most judges fixed both remedies at a period of six weeks or 40 days.239 Similar to other codes, the BW 1838 no longer makes the periods depend on the kind of remedy. Both the remedy for returning the thing and that for price reduction are subject to the same short limitation periods.240
In keeping with its French model, the BW 1838 considers encumbrances on land a breach of the seller's duty to safeguard the buyer the immovable's unhampered and peaceful possession (art. 1527 BW 1838).241 As no specific limitation period is established, the remedy for such a breach is subject to the general limitation of actions which is 30 years.242
7.5.4 Lesion beyond moiety (laesio enormis)
Although Roman-Dutch and Roman-Frisian law had always accepted the possibility to rescind a sale because of lesion beyond moiety243, the BW 1838 does away with the remedy which had for so long faithfully served those in search of their rights.
The objections against accepting the remedy for lesion beyond moiety are the usual ones, which were already put forward by pre-codification natural law scholars.244 During the Parliamentary session of 26 January 1825 in which the title on sales of the future BW 1838 was discussed, Member of Parliament Beelaerts van Blokland mentions that he cannot agree with the view that the sales contract is an exchange of an item for its corresponding value as expressed in a just price. According to him, sales is an 'agreement to deliver a thing for an agreed price... the essence of this agreement is not value, but consent'.245 Again Thomasius is dug up in the fight against the remedy for lesion beyond moiety. Not fairness in exchange but consent should determine the validity of the sale.246 After this initial rejection of the early modern idea of how commutative justice governs
239 Sasse van IJsselt, Vrijwaring, pp. 54, 56; Diephuis, Burgerlijk Regt, vol. 11, p. 325.
240 Star Busmann, Verklaring, vol. 5.1, p. 91, note 4; Opzoomer, Het burgerlijk wetboek verklaard, vol. 8, p.
145.
241 Nauta, 'Preadvies', p. 47.
242 Art. 2004 BW 1838 = art. 2262 Cc.
243 As well in doctrine as in legal practice. See 5.3.
244 Loo, Vernietiging, pp. 90-91.
245 Handelingen Tweede Kamer 1824-1825, 28th session, 26 January 1825, p. 211 (retrievable online at
<www.statengeneraaldigitaal.nl>): '...koop is geen verruilen eener zaak tegen gelijke waarde; neen, zij is eene overeenkomst tot levering eener zaak tegen den bedongen prijs..'. The parliamentary acts here referred to cover the parliamentary discussion of 1825 on a civil code for a country which at the time existed of what would become the two separate states of Belgium and the Netherlands. After Belgium gained independence in 1830, a new discussion of the laesio enormis in the code which was now only to be in force in the Netherlands does not seem to have taken place. Voorduin in his description of the travaux préparatoires to the BW 1838 also only refers to the pre-1830 discussion of the subject matter. Voorduin, Geschiedenis, vol. 5, p. 147.
246 Perhaps the friction between the Dutch and Walloon officials also played a part in the decision to abolish the remedy. Its main adversaries, MP Beelaerts van Blokland and Secretary of Justice Maanen were Dutch. Its advocates De Secus and Dotrenge Walloons. Telling are Maanen's personal notes in which he qualifies Dotrenge's arguments in favour of the remedy as 'gibberish'. See ibidem, p. 213:\[Maanen's summary of Dotrenge's plea\] 'De laesio ultra dimidium is in comité-generaal besloten; zij moest behouden blijven en is nuttig; zij is overeenkomstig onzen staat van beschaving. Voorts wartaal'; cf. Gordley, 'Equality', p. 1600.
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