Page 272 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
regardless of whether there had been error, fraud in the thing itself, or fraud. The party who had caused the lesion had the choice between returning the thing or adjusting the price paid or received.282 Nevertheless, we will see that during the drafting process of the 18th - and 19th -century codes the remedy's dogmatic interpretation became of importance because legal consequences differed in respect of whether a sale could be rescinded because of error or because of fraud. 283
5.3.2 Limitation periods
Among others, the legal humanist Doneau had interpreted the remedy for lesion beyond moiety as one which had to be brought with an action on the sales contract. Consequently, the remedy lasted for 30-years. Yet, Doneau's colleague Cujas reduced the 30-year limitation to four on account of the remedy's involving a restoration of the parties to their former position (restitutio in integrum).284 Cujas had concluded that, since Justinianic Roman law attached a four-year period to a restitutio in integrum, the remedy for lesion beyond moiety should last similarly long. Castilian statutes also set the limit on four years.285 In France, the remedy's life was fixed on either 10 years for price adjustment or 30 years, if the duped party sued for rescission.286
Both the 30 and four-year period of limitation are present in Roman-Dutch and Roman-Frisian law. In a legal opinion given by five jurists in 1616, it was decided that the remedy for lesion beyond moiety had a 30-year limitation period. Schorer, who refers to this opinion in his notes to Grotius' Inleidinge claims that Grotius was one of its conceivers. Although I have not been able to track down the mentioned consilium, the 30-year limitation conforms with what seems to be the majority view in Roman-Dutch legal doctrine. Voet likewise holds that the remedy is brought under the action on the sales contract and that it consequently takes the 30-year limitation period. Van Eck has the same view.287
On the other hand, Groenewegen van der Made states that the remedy involves a restitutio in integrum. Although he does not explicitly mention which limitation period comes with that, one can gather from his comments to C. 2.53.5 that he limits the period within which the remedy can be instituted to four years.288 Van der Keessel in his notes to Grotius' Inleidinge confirms that Groenewegen van der Made's view to consider the remedy as a restitutio in integrum has become accepted in 'our law', viz. the law in Keessel's 18th-century Holland. Nevertheless, he believes it a 'truer interpretation of
282 Grotius, Inleidinge, 3.52.1; Voet, Commentarius, vol. 3, to D. 18.5, no. 3, p. 456.
283 See notably the ALR's approach to the matter in section 7.2.
284 See 4.3.2.
285 See 3.4.2.
286 Groenewegen van der Made, Tractatus, to C. 4.44.2, p. 151, to C. 2.53.2, no. 4, p. 70. See 4.3.2.
287 Schorer to Grotius' Inleidinge, 3.52.1, p. 775; Voet, Commentarius, vol. 3, to D. 18.5, no. 4, p. 457: 'Estque ex hoc, ut opinor, fundamento, quod... restitutionis tamen petendae licentia quadriennio vulgato circumscripta non sit, sed ad exemplum personalis ex emto actionis intergris annis triginta duret'; Van Eck, Principia, vol. 1, to D. 18.5, no. 10, p. 460: 'Quo casu venditori datur actio venditi'; Van Eck, Theses,
to D. 18, th. 326-327, p. 42.
288 Groenewegen van der Made, Tractatus, to C. 4.44.2, p. 151, to C. 2.53.2, p. 70.
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