Page 278 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

EARLY MODERN DUTCH LAW
5.4 Remedies for latent defects vs the remedy for lesion beyond moiety
Van der Linden in his Rechtsgeleerd, practicaal en koopmans handboek frankly states that a sale can be rescinded 'if the sold thing suffers from a defect unknown to the buyer to the extent that the buyer would not have bought it, had he been aware of it'. In addition, a sale can be rescinded, 'if the buyer or seller has been prejudiced for more than half, considering the price paid'.327 Hence, a buyer in the late 18th -century province of Holland where Roman-Dutch law was applied could bring both remedies for latent defects as well as the remedy for lesion beyond moiety, if a defect had diminished an item's worth to less than half the sum he had paid for it. Van der Linden gives no proof of the remedies' excluding each other as some early modern Castilian scholars had done.328 His position conforms with the tendency noted by Groenewegen van der Made to dismiss formal requirements to the claim brought by the duped buyer.
Regarding the assessment of the object's just price and the reduction which the seller of a defective object owed, Roman-Dutch and Roman-Frisian law maintained what had become a well-established theory, sc. the reduction had to be calculated by objective standards. Arguing from D. 35.2.63 which determined that personal feelings toward the item should have no place in determining its value, Roman-Dutch and Roman-Frisian scholars favoured either the thing's common market price or what experts considered it to be worth.329 As a result, another difference between the civil remedies for defects and the remedy for lesion beyond moiety is eliminated. Bijnkershoek, in his Observationes, even explicitly denies the possibility of granting a remedy for lesion beyond moiety, if the price could not be established objectively.330 The same goes with regard to the assessment of the price reduction that is owed because of a latent defect. Bijnkershoek and also Pauw have the remedy quanto minoris solely carried out on the basis of an objective assessment of the item's just price.331 Concludingly, the various ways to assess a thing's value converge into one objective method which boils down to an assessment carried out by experts.
Concerning the limitation periods accompanying the aedilician remedies and the remedy for lesion beyond moiety, Dutch legal doctrine and practice present a chaotic picture. Not much seems to have changed in comparison with early modern Castilian law and legal humanism. Matters have become even more complicated with some Dutch scholars adding a one year limitation period for the aedilician period to the 30-year and six- months periods defended by Van Leeuwen, Noodt, and the Frisians Wissenbach and
327 Van der Linden, Koopmans handboek, 1.15, §10, nos. 2-3, pp. 159-160: '\[2\] Indien 't verkogte goed zoodanig gebrek heeft, bij den kooper onbekend, dat de koop, zoo hij het geweten had, daarom zoude zijn agtergebleven \[references to D. 21.1; Grotius, Inleidinge, 3.17.4). \[3\] Indien kooper of verkooper, ten aanzien van de koopschat, boven de helft benadeeld is \[references to C. 4.44.2 and 8; Grotius, Inleidinge, 3.17.5 and 3.52\]'.
328 See 3.5.
329 See 5.3.3.
330 See 5.3.3.1.
331 See 5.2.1.2.1; Brom, Urteilsbegründungen, p. 187.
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