Page 240 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
in Doneau's 16th century systematic approach to the Corpus iuris civilis, which is anything but pure Roman law.
Westenberg neither distinguishes between the civil or aedilician limitation periods. He does, however, use C. 4.58.2 to prove that the civil and aedilician remedies originally had a different scope of application. It was only at a later stage in the development of Roman law that the civil remedies became applicable to similar situations as the aedilician remedies. At the time of Gordian, according to Westenberg, this was not yet the case. The Digest texts in book 19 which suggest that the civil action on sales also allows for a returning of the thing in Westenberg's view only refer to a later extension of the civil action. Hence the Emperor's inability to imagine which other remedy he could grant the plaintiff after one year had lapsed. A concurring remedy alongside the aedilician was simply not yet in existence.126
Leaving aside the remedies' historical origins, Westenberg draws the conclusion that the aedilician periods of limitation also hold when civil remedies are brought for defects in the sold thing. Westenberg accordingly reaches the same result as Doneau approximately one hundred years earlier, with the one difference that Westenberg discusses C. 4.58.2 with both civil and aedilician remedies in mind. According to Westenberg, the civil remedies were not yet implied extensively when the rescript was written.127 Westenberg thus uses a more conscientious historical approach than Doneau. For the latter, history appeared to be more of a smart tool to season the sources to his legal taste than a distinct discipline yielding results which might possibly be ad odds with the demands of contemporary legal scholarship.
5.2.1.3.2 Roman-Dutch legal practice on limitation
Loenen sheds some light on the law applied in Roman-Dutch legal practice pertaining to the limitation of remedies. In his collection of sentences by the Court of Holland he discusses a case in which the heirs of Jacob Claasz. Jongmans are brought to court by Ms Melissant. Jacob had neglected to pay the interest due to a sum of money lent from Ms Melissant 30 years earlier (in 1632) of which she now demanded payment by his heirs. The question was, of course, whether Ms Melissant still had a remedy or that the 30 year time-lapse meant that she could no longer bring an action. Loenen observes:
126 Westenberg refers to D. 19.1.11.3 and 5. It is, however, unclear which chronology Westenberg adopts. The rescript of Gordian is from 239 A.D. Consequently, in Westenberg's view, the extension of the civil action to instances covered by the aedilician edict must have taken place after 239 A.D. at the earliest, which strikes the modern reader as unrealistic. Westenberg, De causis obligationum, in: Opera omnia, vol. 1, nos. 24, pp. 154-155: 'Neque aliud probat d.l. 11, § 3, 5, ff. de Act. emt. Ex quibus § § illud tantum inferri potest, actionem emtio, postquam Edictum hoc ab Aedilibus fuit propositum, ad illas etiam causas ex quibus Edictum hoc locum habet, extensum fuisse'.
127 Westenberg, De causis obligationum, in: Opera omnia, vol. 1, nos. 20 and 21, p. 154: '\[20\] Sed actiones ex contractu descendentes ordinario ad implemendum non solvendum contractum competunt: et si ex ipso contractu emptionis venditionis ad id agi potuisset, ad quod actiones redhibitoria et quanti minoris dantur ab Aedilibus, supervacuas eas, et sine ratione ab Aedilibus introductas esse, dicendum foret. \[21\] Quod non patitur l. 2. C. de Aedil. act. \[C. 4.58.2\]... Quomodo rescribere Imp. non potuisset, si actio civilis ex contractu eo casu locum habuisset \[Westenberg's emphasis\]'.
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