Page 223 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
on sales, other than for the case's real value'.35 Likewise, on D. 21.1.43.5, proposing a fourfold penalty against a seller of a slave who later violently robs the buyer of his possessions, his comments are that 'this fourfold penalty has fallen into disuse, as I said at the beginning of Inst. 4.2'.36 Hence, the aedilician remedies would seem to have lost their penal character in Roman-Dutch law.
Secondly, Groenewegen van der Made remarks that the plaintiff does not need to specify which remedy he brings. Merely stating the facts because of which he starts proceedings suffices.
'Today, in accordance with canon law, the name of the action is not expressed in a libel. The fact itself and the truth of the incident are brought forward plain and simple, so that from that the ground on which one sues can be gathered... Consequently, the names of the actions have all but fallen into disuse, although no one versed in legal practice can deny that we use a great number of actions'.37
The tendency to simplify Romano-canonical proceedings had already been present in the procedural rulings of the Great Council of Mechelen. Philips Wielandt (1441-1520), who wrote an instruction for beginning practitioners, which was published in 1573, states that
'... civil and canon law contain many kinds of actions which are used in practice. Nevertheless, it is enough that the plaintiff produces a clear petition and a delivers a pertinent statement of claim..., in order that the judge or defendant understands what it is that he wants'.38
It is not hard to imagine that when plaintiffs only state the facts of their claim and no longer spell out in particular which action they bring, judges are encouraged to disregard the sometimes oversubtle differences between ius commune remedies.
That such seems to have happened with regard to the differences between the civil and aedilician remedies for latent defects can be gathered from Ulrik Huber's (1636- 1694)39 Positiones. This Frisian scholar holds that 'according to today's law, it does not matter whether you say that you sue under the sales contract or the aedilician edict. Of
35 Groenewegen van der Made, Tractatus, to D. 21.1.31.20, p. 164: 'quia exolevit duplae stipulatio, ..., idcirco placuit hodie ex empto agi non posse, nisi ad id quod re vera interest...'.
36 Groenewegen van der Made, Tractatus, to D. 21.1.43.5, p. 164: 'haec quadrupli poena in desuetudinem abiit. dixi in princ. Inst. de vi bon. rapt.'.
37 Groenewegen van der Made, Tractatus, to I. 4.5.6, p. 50: 'Ex iuris canonici dispositione hodie actionis nomen libello non exprimitur, sed factum ipsum et rei veritas simpliciter et pure proponitur, ita ut ex eo ius agendi colligatur... Et hinc actionum nomina fere in desuetudinem abierunt, quamvis plerisque actionibus nos uti nullus in foro versatur in dubium revocare potest... '.
38 Wielandt, Practyke civile, ch. 2, no. 4, Van Actien, fo. 17v: 'De civile ende canonijcke rechten stellen voorts noch vele specien van actien/ de welcke de practijcke laet te practijkeren/ maer is genoegh dat de eysscher make klaren eysch/ ende syn conclusie pertinentelic neme/ .../ so dat de Juge oft verweerder verstaen mach wat de eysscher begheert'.
39 For biographical data J. van Kuyk, 'Huber, Ulricus', in: NNBW, vol. 1, pp. 1165-1166. 215