Page 274 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
den Sande contends that whatever has been accepted by custom as obligation for sellers or buyers resolves in the action on the sales contract, which lasts for 30 years, 'as it also appeared to our Court'. To the latter remarks Van den Sande adds a reference to a 1609 case brought before the Provincial Court of Friesland.296
5.3.3 Assessment of the just price
Similar to what early modern Castilian law and legal humanism had stated, Roman-Dutch legal scholars hold that the just price has to be estimated by the yardstick of man's common estimation and not by personal affections, so according to Tulden, Vinnius and Voet.297 Van Leeuwen refers to his Frisian colleague Van den Sande, who argued in favour of an objective assessment made by experts (see below).298 However, a great number of scholars studied in this chapter such as Wissenbach, Huber, Noodt, Voet, Van Eck, Westenberg, Schorer, and Van der Keessel do not go into details. Perhaps in keeping with Cujas' view they considered the question one of fact.299
5.3.3.1 Legal practice
It can be gleaned from some Observationes by the Roman-Dutch scholar and judge Bijnkershoek that the estimation of the thing's price was one of the breaking points whenever the remedy for lesion beyond moiety was brought.300 In a 1704 case about the sale of the library of the deceased Leiden philologist Vossius, Bijnkershoek dismissed the remedy for lesion beyond moiety, 'because the price for these books is solely based on affection, and on animosity, which, as they say, was great in Gronovius \[sc. the prejudiced assessor\]'.301 Moreover, even if these feelings were not present, the collection of manuscripts could not in any conceivable way be assessed by experts, because they are not things commonly traded, Bijnkershoek adds.302
In another case discussed by Bijnkershoek, decided in 1730, the estimation of the just price proves similarly difficult. Plaintiff in appeal was a widow who argued against the remedy for lesion beyond moiety which was successfully brought against her in the lower Court. In front of the Supreme Court's Judges she 'frivolously' contended that the price of
296 Van den Sande, Decisiones, 3.4, def. 11, p. 204: 'Cum enim quaecunque more aut consuetudine recepta venditor emptori aut emptor venditori praestare debet, veniant in actionem empti venditi, l. quod si nolit, 31, § quia assidua, ff. de aedil. edict. \[D. 21.1.31.20\], multo magis quae certo iure praestanda sunt, ut restitutio ex l. 2. \[C. 4.44.2\]. Non igitur haec actio finitur quadriennio, sed ad trigesimum usque annum extenditur. Et ita quoque Curiae nostrae visum est (27 octob. anno 1609. Tyaert Aebes Wijtzema impetrant, Arent Martens ghedaegde)'.
297 Tulden, Commentarius, to C. 4.44, no. 2, p. 229: 'Pretium quoque justum ex communi aestimatione censetur, non ex affectione singulari, d.l. pretia ad l. falc. \[D. 35.2.63\]'; Vinnius, Quaestiones, 1.56, p. 253; Voet, Commentarius, vol. 3, to D. 18.5, no. 7, p. 461. Brom, Urteilsbegründungen, p. 241.
298 Van Leeuwen, Rooms-Hollands regt, 4.20, no. 5, p. 388.
299 For Cujas' view see 4.3.3.
300 Brom, Urteilsbegründungen, pp. 242seq.
301 Bijnkershoek, Observationes, vol. 1, no. 62, p. 19: '... quis enim manuscriptorum pretium finiverit? Non
est in his pretium nisi affectionis, quod vocant, et in Gronovio ingens erat, ut ita dicam, animi affectio.'
302 Bijnkershoek, Observationes, vol. 1, no. 62, p. 20: 'Deinde nec pretium iri potest librorum qui, quamvis
typis descripti sunt, non exstant tamen vulgo venales'.
266