Page 252 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
5.2.2.2 Legal practice
Despite Roman-Frisian scholarship holding the view that the aedilician remedies for defects should not be extended to lease was broadly shared, Roman-Frisian legal practice is ambiguous concerning that point.
Zacharias Huber devotes one Observatio to the issue.176 In a case before the Frisian High Court, Maevius discovered that Titia had a right in the land he had leased unencumbered from Gaia. Maevius consequently demanded Gaia to compensate him for his loss in the suit with Titia. However, the Court declared this move unlawful, which was correct, according to Huber:
'because the action for eviction is acknowledged and accepted in sales and other contracts and dealings in which ownership is transferred in return for an equivalent performance, but not quite in lease, which does not transfer ownership, D. 19.2.39, just as the aedilician remedies cease in lease. Ulpian alleges that it does not seem to surprise anyone that the curulian aedilician edict pertains to sales alone, because lease is unlike sales, D. 21.1.63. Certainly it is entered into by consensus alone, such as sales. However, the truly important difference is that in sales it is always about the transfer of ownership to the buyer in exchange for a certain sum. This is different in lease, where the other is only granted the use of the leased thing for a period in exchange for a certain rent'.177
Huber continues explaining that eviction is likewise impossible under lease. The lessee should institute an action on the lease contract, if he is evicted without having committed fraud or having made a mistake. 'For that is to be understood as the ordinary action on the lease contract, which is given the lessee so that the lessor will compensate for so much as the lessee could not enjoy the thing'.178
It appears that Zacharias Huber agrees with his father Ulrik, Voet, Noodt and Heineccius in that the action on the lease contract sufficed in coping with liability questions under lease.179 All scholars consider lease of a defective object as a breach of the lessor's obligation to furnish the lessee with the proper use of the object for which the action on lease lay. There is no sharp distinction between Roman-Dutch and Roman-Frisian law regarding this issue.
176 Zacharius Huber, Observationes, obs. 9, pp. 32seq. Case of Taebe Douwez vs Sybilla Theresa Spitholt, 27 October 1718.
177 Zacharius Huber, Observationes, obs. 9, pp. 32-33:'Nam actio de evictione tantum cognita est atque recepta in Emptione et venditione, aliisque contractibus et negotiis quibus transfertur dominium titulo oneroso, neutiquam in Locatione conductione, quae non solet dominium mutare, l. 39, ff. Loc. cond. Prorsus uti actiones aedilitiae cessant in locatione conductione. Quod ne cui mirum videatur, causatur Ulpianus ideò ad venditiones solas pertinere Edictum Aedilium curulium, quia non similiter locationes, ut venditiones, fiunt, l. 63, ff. de Aedil. Ed. Perficitur quidem solo consensu locatio, sicut emptio venditio. Verum haec est insignis differentia, quod in emptione venditione semper id agatur, ut certo pretio dominium transeat in emptorem; secus ac in locatione conductione, ubi duntaxat ad tempus alteri conceditur usus rei locatae pro certa mercede'.
178 Zacharius Huber, Observationes, obs. 9, pp. 32-33: 'Hoc enim intelligendum est de ordinaria actione conducti, quae datur conductori, ut tantum ei praestetur quanti eius interest frui'.
179 See previous section.
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