Page 241 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER FIVE
'It seems that Grotius in his Inleidinge was of the opinion that the custom that all remedies would be limited to 33 years and four months...128 had only been accepted for immovables or fiefs and for nothing else and that all other personal remedies die before that, to wit, if 30 years have passed'.129
According to Loenen, both Grotius and the Court of Holland considered a 30-year limitation period as the default for all personal actions. In a legal opinion given and reported by Naeranus in his Consultatien it is written in compliance with this rule that the buyer of a defective horse could still sue after six months had lapsed: 'According to the law pertaining to latent defects, the remedy for returning the horse is granted also after six months'.130
Bijnkershoek also seems to subscribe to the view which grants a longer period to bring a remedy for defects in the thing sold. As president of the Supreme Court, Bijnkershoek gave his opinion in a case in which the plaintiff on 24 December 1733 had bought a stable 'standing on city ground'.131 The seller had not informed him that the ground was a precario and liable to communal taxes. The plaintiff first held that, by failing to provide necessary information, the seller was liable for fraud (dolus). After twice losing this plea, first before the Rotterdam Schepenbank (26 April 1736) and a second time before the provincial Court of Holland (18 July 1740), he changed tactics in his appeal to the Supreme Court and sued for price reduction.
From the resolution accompanying the case we can gather that the long lapse of time (2 years and 4 months) between the conclusion of the sale (24 December 1733) and the judgement in first instance (26 April 1736) did not hinder Bijnkershoek from treating the remedy for price reduction as one that very well could have been instituted, if only particular conditions were met.132 On the other hand, we find judge De Grande contemplating that 'the remedy for price reduction should have been instituted within one year'.133 Thus, the two Supreme Court judges seem at loggerheads with Bijnkershoek apparently defending the view that the remedy for price reduction could be brought over a period longer than one year and De Grande limiting the action to one year in accordance with the aedilician edict and Grotius' account of Roman-Dutch law.134 It is consequently
128 Grotius mentions that 'of old' (van ouds) claims die after 1/3 of a year in Roman-Dutch law. See Grotius, Inleidinge, 3.46.1-3.
129 Loenen, Decisien en observatien, case 76, p. 500: 'De coustume, van dat alle actien souden werden gepraescribeerd in den tyd van drie en dertig jaar en vier maanden... schynd Mr. Hugo de Groot in syn Inleyd. tot de Holl. regtsgel. van opinie te zyn, dat de selve alleenlyk soude wesen gerecipieert ten reguarde van ontilbaare eygen of leen-goederen, en verder niet, en dat alle verdere personele actien hier te vooren, en als nog praeciselyk, mids het verloop van dertig jaaren, werden gepraescribeerd'.
130 Naeranus, Consultatien, vol. 3, cons. 107, no. 1, p. 354: 'De iure propter latens vitium conceditur equi redhibitio, etiam post sex menses'.
131 Bijnkershoek, Observationes, no. 3249, p. 267: 'staande op stads grond... '; Brom, Urteilsbegründungen, p. 205.
132 Brom, Urteilsbegründungen, p. 369 (resolution): '...so 'er iets verswegen is, 't geen gesegt had moeten, is 'r fundt. tot de actio redhibitoria, so 't vitium groot is, of tot de actio quanti minoris, so 't vitium klein is'.
133 Brom, Urteilsbegründungen, p. 369 (resolution): 'De actio quanto minoris had binnen 's jaars geinstitueert moeten worden'.
134 The other judges discussed only whether there was dolus at the side of the seller and did not pay 233