Roman-Frisian Law of the 17th and 18th Century. 3428110463, 9783428110469

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JAN H. A. LOKIN, FRITS BRANDSMA and CORJO JANSEN

Roman-Frisian Law ofthe 17th and 18th Century

Schriften zur Europäischen Rechts- und Verfassungs geschichte Herausgegeben von Prof. Dr. Reiner Schulze, Münster Prof. Dr. Elmar Wadle, Saarbrücken Prof. Dr. Reinhard Zimmermann, Hamburg

Band 45

Roman-Frisian Law of the 17th and 18th Century

By

Jan H. A. Lokin, Frits Brandsma and Corjo Jansen

Duncker & Humblot . Berlin

This book was published with financial support from the Netherlands Organisation for Scientific Research (NWO).

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrutbar.

Alle Rechte vorbehalten

© 2003 Duncker & Humblot GmbH, Berlin

Fremddatenübernahme: Klaus-Dieter Voigt, Berlin Druck: Color-Druck Dorfi GmbH, Berlin Printed in Germany ISSN 0937-3365 ISBN 3-428-11046-3 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 9

Table of Contents Preface ....... . ......... . .......... . .. . . . .. .. .. ... .. . . . ... . .... . .... . .

11

Chapter I

The Court of Friesland: Abrief history of the institution

15

I. The creation and development of the Court of Friesland ......... . .......

15

2. The jurisdiction of the Court of Friesland ....... . .............. . .... . ..

20

3. The applicable law ..... . ................. . . . .. . ... .. .... .. ... . .... . . 21 4. The mutual relationship between Frisian and Roman law ....... ... .... . . 28 5. Conclusion ... ... . . . . .... . .. . .. . ... . ... . . ... . . . . .. . .... . . .. . . . . . .. . . 30

Chapter II

The beguiling ensign: The adventures of a minor under the patria potestas

33

I. Minority .... . .... . .... .. ... . ... .. .. . . . .. . ... .. ... . . .... . .... . .... . . 33

2. Patria potestas ....... . ........ . ..... . ..............................

35

3. Minority and patria potestas in everyday practice .. . . . . . . . . . . . . . . . . . . . ..

36

4. The applicability of the senatus consultum Macedonianum ............. . . 38 5. The grant and ratification of an hypothec ........ . . . ............. . .....

40

6. An initial ancillary issue: the exceptio non numeratae pecuniae . .. . ... . ..

43

7. A second ancillary issue: dolus (deceit) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 8. Conclusion .. . . . .. . .... . .. . ..... . .... . ... . ... .. .. ... .... . .... .. .....

48

6

Table of Contents Chapter 1II

The task or a meticulous administrator: Perils surrounding an investment not made

51

I. The administration of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2. A closer look at the case of Wigeri and Beerents v Feijens and others ....

53

3. The task of a meticulous administrator . . . ........... . ...... . ..........

55

4. Conclusion ... ... ..... .. .... .. ... . .. ... ... ... ...... ... ..... .. ...... . 61

Chapter IV

On women in need or assistance: The prohibition or intercession

64

I. The prohibition of intercession ............. .. ............. . ...... . ...

65

2. Restrictions on the prohibition of intercession ..........................

68

3. Error of law . . ................. . ........ .. ........ . . ........ . ...... . 73 4. Renunciation .. .. ........................................ . ...... . ...

75

5. Renunciation otherwise than by a public instrument .....................

77

6. Conclusion ... . ...... .. ..... . . . ..... .. .... .. ............... .. .......

82

Chapter V

The assignee who did not give notice or the assignment: On assignment

85

I. Assignment under Roman law ........................................

85

2. Assignment under the ius commune .......... . ...... .. ....... . ........

87

3. The instrument of assignment ........................................ 90 4. The constitutio of the Emperor Gordianus . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

92

5. Personal knowledge on the part of the debtor . . . . . . . . . . . . . . . . . . . . . . . . . ..

95

6. Conclusion ......................................................... 101

Table of Contents

7

Chapter VI

"Mobilia habent sequelam": Hypothecs on cows and horses or: on Friesland, where the jus Romanum is closely observed

103

I. A black-starred mare ... . ....... . .... .. .. . .. . ....... .. ..... . . . ....... 103

2. Roman law or Germanic law? ... ... . . .. . .... ...... . . .. .. . .. .. . .. ..... 104 3. Roman-Dutch law .......... . . . ..................... . ........ . ....... 109 4. The case of Fenema versus Heringa, or the position und er Roman-Frisian law . . . ..... ..... .. ...... .... . ... ...... .. . ...... .. ..... .... . . . .. . . .. 115 5. The decision of the Court: ruinous to aII traders? ...... . . . . . ... . .... . . . . 124

6. Jus apud Frisios, utentes doctrina juris Justinianaei . .. ..... .. ...... .. .. 125

Chapter VII

"A liUle bit longer" : Or "How much longer Roman feet were than Frisian ones" Can the proprietor 0/ a servient tenement reloeate a servitude?

128

I. Vexatiousness?. . ..... . ..... . ........... .. . . .... . . . . . ...... . .. . . . . . . 128

2. In a proper manner ................. . ............................. . .. 129 3. The communis opinio doctorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 135 4. Roman-Dutch law ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 136 5. Back to the proceedings between Bruinsma and Jans and Roman-Frisian law ...................................... . ........ . ............ . ... 138

Chapter Vlll

The disappointed heir: The unwilling victim of the eautio Socini

141

1. A c10ser look at the law governing testamentary dispositions ... . .... . .... 142 2. The cautio Socini . . . .. ... .. ... .. .. .. .... .. ... ...... .. ..... . .... ..... 144 3. Cramer versus Cramer ........ . ..... . ....... . . . ... .. ...... . .......... 145 4. A further look at the cautio Socini . . . . .... . .... . .. ....... . ... ... . ..... 150 5. A few incidental remarks concerning private international law ............ 153 6. ConcIusion . . . .. . .. ... ..... ... ....... . .. ... ............ .. ... . . ... ... 155

TabJe of Contents

8

Chapter IX

The purchase of a ruin at public auction: is the doctrine of laesio enormis applicable?

158 158

I. Introduction

2. Laesio enormis in Roman-Frisian law ................................. 159 3. The applicability of the concept of laesio enormis in the case of a public auction ............................................................ 162 4. The case of Eentjes versus Ydema .................................... 164 5. Legal and factual basis of the arguments and counter-arguments .......... 165 6. Conclusion ........................................................ . 167

Chapter X

The ignorant churchwardens, or: is a vendor required to deli ver what he has sold free from an burdens and encumbrances?

171

I. A "modem" question? ............................................... 171

2. Nyncke Heinsius and her fellow heirs versus the churchwardens of Akkerwoude ............................................................. 172 3. The vendor's indemnification obligation under Roman law in cases conceming charges and burdens attaching to real property .................. 174 4. Roman-Dutch law ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 179 5. Roman-Frisian law .................................................. 184 6. Conclusion ......................................................... 193

Chapter XI

Farming agricultural land oneself: "Sale does not break hire"?

195

I. The case of Roels versus Rispens ..................................... 195

2. Roman law .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 196 3. Roman-Frisian law .................................................. 198 4. The arguments advanced in the case of Roels versus Rispens ............ 199 5. Does a sale not break hire? .......................................... 202 6. Conclusion ......................................................... 204

Table of Contents

9

Chapter XII

Penalties, damages and eompensation for pain and suffering: Rights of action arising from a tort

206

I. Penal or reipersecutory? . . . . .... . ..... .... ......... . . ... . ....... . .... 206 2. The !itis contestatio ... . ... .. .. ... ... .. ....... ... . . .. . ... .... . ....... 209 3. Penalties and the calculation of damages in cases of injury .. . ...... . .... 214 4. Compensation for pain and suffering .. ....... . . ... . . ...... . . .. ........ 222 5. Conclusion .. . . . .. . .. . ............. .. ...... ... . ... ...... . ..... .. .... 225

Chapter XI/I

The ineompetent lawyer: Payment of fees and professionalliability

229

I. The legal relationship between a lawyer and his client under Roman law .. 230 2. The honorarium ............. .... ................ . ........ ...... .... 232 3. The concept of a reasonable honorarium in the ius commune ..... . .. . .. . . 235 4. Incorrect judicial decisions .. ........... ... . .... .. . . . . . .. .. . ... ... . . .. 237 5. The condictio indebiti founded on an incorrect judicial decision .. . .. . . . .. 240 6. Restitutio in integrum ......................... .. ............... . . . .. 245 7. Professional Iiability .. ... . . . ...... . ....... . .. .. . .... ....... . . ... ..... 247 8. Conclusion .. . .. . ... .. ..... . ..... .. . . ..... .. .. .. . . . .. ..... . . . . . .... . 250

Chapter XIV

To prevent the bloodthirsty enemy from carrying out bis eruel plans: lawful aets of the authorities and the Rhodian law on the throwing of goods overboard - A Roman-Frisian Quint versus Te Poel 252 I. Lawful or unlawful? . . ............. . ........... .. . . . . ... . ........ .... 252 2. The case of Sierck Lieuwes versus the States of Friesland .... . .......... 254 3. The basis of the Court's decision ............................. . ....... 258 4. Roman-Dutch law .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 5. Roman-Frisian law ... .. ........... . . . . . ............. . ............... 265 6. Conclusion ....... . . . .......... . ............. . . .. ................... 268

10

Table of Contents

Concluding observations . .. . . . .. .. .. . .. . ... .. . . . . . .. . . ............ . .. . . 269 Documents from the Rijksarchief Friesland (Friesland Public Records) . .. . 277 List of sources ....... . ................. . .. . .......... .. . . ... . .. . . ..... 279 Bibliography - Full titles of works cited under their abridged titles ...... . 287 Index . .. . . ... . .... . . . . . . .. ...... . . . . ...... .. . ... . .. .. . ...... . .. .. ..... 289

Preface Nowhere in the world does one encounter a people so Roman as the Frisians. That statement originates from the greatest of the Frisian jurists, UIrik Huber, who lived from 1636 to 1694. It must immediately be said that the word "Roman", as used by Huber, is to be understood as having a somewhat different meaning from that attached to it nowadays. Friesland was oriented not towards the Roman faith but to Roman laws, so that Huber was able to write: "Roman law is observed here in a purer and more straightforward fashion than in any region, country or state in Christendom. We adhere to the rule that, save in so far as the position is clearly otherwise under Frisian law, it remains as prescribed by the laws of [ancient] Rome.'" Huber was not alone in noting the adherence of the Frisians to Roman law. All of the commentators writing in the 17th and 18th centuries, including the non-Frisian authors, expressed the same view. To take another example: the jurist Groenewegen van der Made, a native of Holland, writes in the foreword of his book on those Roman laws which had been discontinued and fallen into desuetude: "But of all peoples, it is the Frisians who adhere most strictly to Roman law.,,2 Evidence of this generally accepted view may be seen in numerous places in the works of the different authors, but its most abundant source is ultimately to be found in the archives of the Court of Friesland, which now form part of the Friese Rijksarchief (Frisian Public Records). Those archives contain invaluable details regarding legal practice in Friesland in the 17th and 18th centuries, recorded in the carefully maintained judgment books, wh ich provide far more information than is revealed by the naked decisions of the Court, and in the case-files which have been handed down in their entirety since the year 1700.3 Even the linen bags in which the documents were stored away have been preserved Huber, Heedendaegse Rechtsgeleertheyt, I, 2, 47. Groenewegen van der Made, De legibus abrogatis, proemium, No 4: Prae caeteris tarnen omnium strictissime juri Romano inhaerent Frisii. 3 Virtually all of the records dating from before 1700 have been lost. Unfortunately, we are left with only the judgments recorded in the judgment books, from wh ich it is possible in some cases to reconstruct the arguments of the parties. It is worth mentioning that the records dating from after 1700 contain all the documents in a given case, that is to say, the decisions of the lower courts, the investigation papers, the remonstrances, interlocutory judgments, etc., all comprised in a single file. 1

2

12

Preface

and continue to be maintained. Might it be possible, having recourse to that treasure-house, to demonstrate the "extremely strict" observance of Roman law referred to by the writers of old? That was the question which was posed to us by the Keeper of the Public Records of Friesland, Mr D. P. de Vries, and which we have endeavoured to answer in this book. Inherent in that question, and in the task which it has imposed on us, are certain limitations, which we have been happy to observe. For one thing, we have feit obliged to restrict ourselves to the juridical core of the arguments advanced by the parties' advocates and given by the Court in its decisions. Consequently, we have not dealt with the personal vicissitudes of the parties, their lawyers and their judges. 4 Thus, the reader will find little, if anything, in this work regarding such questions as who was married to whom, who was related to whom or the house in which the defendant lived, or where the plaintiff was born or christened, etc. However much we may recognise the importance of such details, we have restricted ourselves to the legal issues, and have been happy to leave it to researchers with greater competence in the field in question to provide an account of what we would term the metajuridical aspects. However, we have not gone so far as to follow the practice of the 17th century writers in substituting, in place of the real names of the protagonists, their Latin equivalents, such as Titius, Maevius or Sempronius. The combination of the mostly native Frisian names and the Roman texts graphically iIIustrates the character of what has come to be called Roman-Frisian law. Second, we have concentrated on private law, since that is the area in which the influence of Roman law has made itself most profoundly feit. From the vast mass of material encompassed by that private law, we have chosen those doctrines which the present-day lawyer remains Iikely to encounter in legal practice - in short, doctrines forming the foundations of the law as it applies today. For that reason, each chapter seeks to trace the link with present-day law, making it a self-contained unit which can be read separately. Frequently, a Frisian lawsuit gives occasion for consideration of aseparate theme; sometimes, a single piece of litigation occupies a whole chapter. We have not sought to deal exhaustively with the various doctrines wh ich arise. That would have rendered the proportions of this book quite unmanageable. The pattern in which topics are dealt with may be said to have suggested itself: the documents in a case, in which reference is constantly made to Roman-Iaw texts assumed to be familiar to all concerned, have invariably prompted an exposition of the Roman - that is 4 As an evident exception to this, certain personal details have been included conceming the Huber family - evident, because they form part of the defamation proceedings brought by Ulrik Huber against his colleague Jacobus Perizonius. See Chapter Xß.

Preface

13

to say, lustinianic - law. Only then could the Roman-Frisian law, with its own variations, be understood and explained fully. Wherever possible, that explanation has involved a consideration of Roman law as applied in the province of Holland (Roman-Dutch law), especially where it deviated from Roman-Frisian law. We have sought to restrict discussion of the numerous authors working in the tradition of the ius commune outside Holland and Friesland, so as to avoid straying beyond the limits of the permissible scope of this work. An attempt has been made, as far as possible, to spread the subjects divided up into chapters over the gamut of private law. In making the unavoidable - and inevitably somewhat arbitrary - choice which this has necessitated, we have been guided by two considerations: first, by the knowledge that, in a given doctrine, Friesland pursued its own "Roman" course and, second, by the lacunae noted by Reinhard Zimmennann in the volume co-written by hirn on Roman-Dutch law,5 in which he expresses regret for the fact that, inter a/ia. assignment and the actio iniuriarum are not dealt with in that work. This prompted us to consider those subjects from a Frisi an perspective. Given the foregoing, it will come as no surprise to the reader that most of the chapters in this book are concemed with doctrines arising from the law of property and the law of obligations. Like all such endeavours, our quest has met with a number of obstac1es and various ups and downs. One such obstac1e has been the fact that, at a superficial level, the archives are not particularly revealing, inasmuch as they are made accessible only by the names of the parties and not by the legal issues fonning the subject-matter of the litigation between those parties. As a result, it has invariably been necessary for the authors of this work, in seeking to find their way into the case-files, to have recourse to the references made by the various leamed writers, especially U. Huber, and to seek assistance from the printed volumes of decisions produced by Beucker, Nauta, Z. Huber and Van den Sande. None the less, we have also called for and examined files on a haphazard basis. This random sampling, so to speak, yielded a substantial harvest, to such an extent that at least three individual chapters (Chapters 11, VII and VIII) and numerous supplemental passages throughout the entire book are the froit of this ec1ectic "method". A second obstac1e was presented by the relative unreliability of the printed references and the variation in the spelling of names in the files. The volumes of judgments produced by Beucker and Nauta, in particular, do not always serve as a reliable guide. We have had the good fortune to benefit from the generous assistance afforded by various agencies and individuals. Particular mention should be 5

Feenstra-Zimmennann, Das römisch-holländische Recht, pp. 6 and 50.

Preface

14

made in this regard of the Frisian Rijksarchiej and its chief archivist, Mr D. P. de Vries. Assisted by Mr A. G. Bosch, he furnished the initiative for the writing of this book. We have benefited throughout from the effective and liberal guidance and assistance given by hirn and by his colleagues, who denied us nothing and placed no obstacles in our path. Similarly, the staff of the Library of the Rijksuniversiteit Groningen (Department of Ancient and Rare Works) and of the Leeuwarden Provincial Library have been unstinting in providing us with advice and assistance. We are greatly indebted to them all, and should like publicly to express our thanks in this foreword. Our gratitude is also due to the members of the Department of Legal History in the Rijksuniversiteit Groningen, who assisted us in deciphering the often somewhat illegible manuscripts. Bertus Hempenius and Dieneke Hempenius-van Dijk, who are as much at horne in the archives as fish in water, Foskea van der Yen and Rinse Brink have at all times been happy to assist in reading through case-files and have been willing, where necessary, to travel to Leeuwarden in order to check points arising from material read by them. In that respect, this has been, in a real sense, a departmental project, especially when adding the involvement of Lia Scheffer, who kindly typed out part of the manuscript. It is for the reader to judge the result of our efforts. We hope that, having read this work, he will arrive at the same conclusion as that reached by us: namely, that in the Friesland of the 17th and 18th centuries, justice was administered to an extraordinarily high standard. This was based on an indigenous variant of the ius commune, of which Friesland was proud and may still be proud: Roman-Frisian law.

Groningen, 1 April 2003

J. H. A. Lokin C. J. H. Jansen F. Brandsma

Chapter I

The Court of Friesland Abrief history of the institution 1. The creation and development of the Court of Friesland The fifteenth century is not regarded as the happiest period in the rich history of Friesland. It was a time of civil war and wrangling over political power. There existed no central authority capable of putting an end to the various conflicts. The countryside and the towns were controlled by the heads of the most prominent Frisian families and the clergy. In those days, the Holy Roman Emperor ne ver visited his outlying provinces. Consequently, the local potentates were free to act as they wished. From the fastnesses of their fortified manor-houses, the stinzen, they fought each other by fire and sword. In global terms, they may be said to have fallen into two separate parties: on one side, the Schieringers, named after the white (schier) or grey habits worn by the Cistercian monks, and, on the other, the Vetkopers (literally, "fat merchants"), who appear to have taken their name from a monastic order trading in butter and cheese. Neither party succeeded in achieving a definitive victory in the conflict. The fortunes of war fluctuated between them. During the 1480s, the conflict flared up anew within the various districts of Friesland. Raiders, soldiers of fortune and groups armed by local noblemen made their plundering way from area to area in search of booty and the spoils of war. The Schieringers suffered an ignominious defeat in 1492 at the hands of the Vetkopers, who knew that they could rely on support from the city of Groningen. The humiliated Schieringers, for their part, turned for assistance to the German Emperor Frederick III, and subsequently to Maximilian. Receiving no help from that quarter, the Schieringer leaders approached the cunning Duke Albrecht of Saxony. Behind Maximilian's back, he launched an attack on the people of Groningen and the Vetkopers. This was too much for Maximilian to countenance. The Emperor had had more than his fill of violence, and had by that time started to make a serious attempt to persuade the warring parties to lay down their arms. However, his efforts to bring the violence to an end were doomed to failure, since Albrecht won battle after battle and captured large areas of Fries-

16

Chapter I: The Court of Friesland: Abrief history of the institution

land from the various Vetkoper alliances. The Schieringers proceeded to recognise Albrecht as the hereditary lord of Friesland, subject to the approval of Maximilian. The Emperor was hesitant, but was deeply in debt to his trusty servant Albrecht, who had used his own capital resources to subdue the rebellious Flemish for his master. Maximilian therefore had no choice but to accede to the Duke's wish. On 20 July 1498 he appointed Albrecht hereditary mler of the greater part of what is now the province of Friesland. The Saxons then sought to finish off the job. By the end of that year, they had subjugated almost the whole of what is today the province of Friesland, apart from a small strip of land, the Stellingwerven. 1 In 1499 Duke Albrecht himself paid a visit to Friesland. He set up a council to govern and administer justice in that remote corner of his possessions, known as the Hoge Raad (High Court or Council) of the Duke of Saxony in Friesland. Its membership was composed partly of c1erics and partly of noblemen, and it was presided over by a Saxon representative of the Duke. It was modelled on the Saxon Oberhofgericht (Supreme Court). Pursuant to the Saxon Gerichtsordnungen (decrees relating to courts) of 1488 and 1493, the Oberhofgericht delivered its judgments on the basis of Saxon law as the primary legal system and Roman law as the subsidiary system. In Gerbenzon's opinion, this Saxon model was followed in Friesland. The decisions of the Frisian court or council were likewise adopted in accordance with Romano-canonical procedural mies and the legal system which it applied was customary law and the Roman law of Friesland. 2 In 1504 Albrecht's son, Duke Georg, undertook a review of the way in which the court was organised. The regulations governing the organisation of the new Court, and the procedure which it was to follow, were laid down in the (Frisian) Saxon Ordinance of 1504, which also contained mies concerning the administration of justice by the lower Frisian courts and various penal provisions? The part of the Ordinance which dealt with the procedure in the highest judicial fomm was a practical compilation taken from the above-mentioned Saxon Gerichtsordnungen of 1488 and 1493. The Frisian-Saxon Court functioned for aperiod of sixteen years. 4 1 For an account of these historical events, see A. P. van Nienes, B. de Vries and S. van de Woude, Fryslän 500 1498-1998: vijf eeuwen provinciaal bestuur, Leeuwarden, 1998, p. 11 et seq. 2 P. Gerbenzon, Enkele nieuwe gegevens over de receptie van het Romeinse recht in Friesland, published in: Tijdschrift voor Rechtsgeschiedenis, 1959, pp. 145 to 147, 149. 3 For the text of the Ordinance, the reader is referred to: the Archives of the Court of Friesland, Inventory No 1; G. F. Baron Thoe Schwartzenberg en Hohen, lansberg, Groot Placaat en Charterboek van Friesland II, p. 35 et seq.; A. S. de Blecourt-N. Japikse, Klein plakkaatboek van Nederland, Groningen/The Hague, 1919, p. 7 et seq.

I. The creation and development of the Court of Friesland

17

The arrival of the Saxons brought no lasting peace. Every now and again, disturbances broke out, often in connection with the stricter levying of taxes or the penal measures introduced against insurgent local Frisian lords. The Saxon Duke gradually found that he had had enough of Frisian rebelliousness. It was costing hirn a great deal to maintain his army. The chaos reigning in the countryside showed no signs of abating. Widespread fighting broke out once again in 1514, and a year later he sold his rights over Friesland to the fourteen-year-old Karl von Habsburg, the future Emperor Charles V, who spoke quite reasonable Dutch (presumably the Ghent dialect). However, the disturbances in Friesland continued for quite some time. Charles' attempts to establish peace were severely handicapped by the exploits of the notorious Grutte Pier Gerlofs, who travelled round the country, pillaging and plundering. It was not until 1524 that Charles finally succeeded in bringing all his Frisian territories under control. The Frisian-Saxon Court ceased to exist in 1515. The new Habsburg regime set up the Court of Friesland. Administrative and judicial duties were likewise assigned to that Court. The Frisians knew that they could persuade their ruler, Charles V, and his representative in Brussels, Govemess Margaret, that the Grote Raad (Great Court) of Malines should not serve as the highest judicial forum in Frisian lawsuits. Thus, it was enacted that no right of appeal should lie to the Grote Raad from judgments given by the Frisian Court. This important ius de non appellando was established by Article 12 of the Convention of 13 November 1524. From that year onwards, the Court was totally free to perfonn its administrative and judicial duties without outside interference; and this state of affairs lasted until the commencement of the revolt against Philip 11 of Spain, marking the start of the Eighty Years' War which historians customarily reckon as having begun in 1568. In Friesland, it was not until the end of the 1570s that the Spaniards were definitively driven out. The revolt against the Spanish authorities had far-reaching consequences as regards the activities of the Court. The new era marked the end of the Court's functions as an administrative body. The States of the Province emerged definitively from the shadow of the Court. They took the initiative in the struggle surrounding the rejection of Philip 11. On their authority, the members of the Court were arrested in 1578 and a completely new Court was installed. Following this initial success, the States sought to persuade the Lieutenant Stadholder, Bemard de Merode, as the deputy of Stadholder William of Orange, immediately to divest the new institution of all political 4 See R. Feenstra, Keizerrecht en Romeins recht in Friesland, Kanttekeningen bij de jongste literatuur over dit onderwerp, published in conjunction with a previously unpublished text by S. H. van Idsinga, in: Verslagen en Mededeelingen, Part XI (1954), p. 243. 2 LokiniJanscnIBrandsma

18

Chapter I: The Court of Friesland: Abrief history of the institution

and administrative functions. The Court tenaciously resisted this attack on its dominant position in the existing order of governance; but in 1587 it was forced to submit to the power of the States. Almost all administrative functions were transferred to the latter body. A decree was issued in 1588 limiting its powers to the exercise of its judicial task. The Court's mode of procedure was comprehensively regulated in the Ordere en Inslruclie daama de presidenlen en provincialen raad in 'I bedienen van de juslitie sig sullen hebben le reguleeren (Orders and Instructions regulating the manner in which the presidents and provincial court should act in the administration of justice) of 10 May 1597. 5 That enactment was to remain in force until the beginning of the 19th century. It was only with the greatest difficulty that the Court feit able 10 accept this new arrangement. The relationship between that judicial body and the States continued to be plagued by jurisdictional disputes, which were not finally laid to rest until 20 November 1663, when a resolution was adopted listing all matters which were to be regarded as falling within the political domain. The Court was precluded from involving itself in such affairs. During the seventeenth and eighteenth centuries the Court of Friesland built up a solid reputation as a judicial body. Silent testimony of the quality of the work done by the Court is to be found in the collection of law reports compiled and produced by Johannes van den Sande (1568-1638): Decisiones Frisicae, sive rerum in suprema Frisionum Curia judicatarum libri V.6 That volume dates from the period when Van den Sande was a member of the Court of Friesland. Prior to taking up office as a judge of the Court, he had served from 1598 to 1604 as a law professor in Franeker? The sagacity of the Frisian judges is also clearly illustrated by the celebrated Heedensdaegse Rechlsgeleertheyt8 of Ulrik Huber (1636-1694), who was a member of the Frisian Court from 1679 to 1682. The year 1723 S See, generally: Van Nienes, De Vries and Van der Woude, Fryslän 500, p. 39 et seq. For the wording of the Instructie, see G. F. Baron Thoe Schwartzenberg en Hohenlansberg, Groot Placaat en Charterboek van Vriesland IV, p. 965 et seq. 6 Translated into Dutch under the title: Vijff boecken der Gewijsder Saecken voor den Hove van Vries-Iand. A further collection containing early judgrnents of the Court was cornpiled by Johannes Beucker, entitled Rerurn in suprerna Frisionurn Curia judicatarurn fasciculus (published by S. Cocq in 1780 and by B. Voorda in 1782). 7 See O. Vries, B. S. Hernpenius-van Dijk, P. Nieuwland and P. Baks, De Heeren vanden Raede. Biografieen en groepsportret van de raadsheren van het Hof van Friesland 1499-1811, 1999, No 130. As to his work as a professor, see: M. J. A. M. Ahsrnann and R. Lagrouw, Pericula Schotana. Wederwaardigheden onder Franeker juridische professoren ten tijde van Henricus Schotanus (1585-1605), in: G. Th. Jensrna, F. R. H. Smit, F. Westra (ed.), Universiteit te Franeker 15851811, Leeuwarden, 1985, p. 310 et seq. 8 First published in two parts in 1686.

I. The creation and developrnent of the Court of Friesland

19

saw the appearance of the first part of the authoritative observations of Ulrik's son, Zacharias Huber (1669-1732), on cases brought before the Court from the end of the 17th century onwards. 9 Zacharias - like his father and Van den Sande before hirn - had become a judge of the Court of Friesland after pursuing a career as a professor in the Franeker law faculty (from 1694 to 1716).10 The mIes goveming the conduct of litigation before the Court of Friesland were laid down in a Landsordonnantie (local decree) of 1602, part of the contents of wh ich dated back to the Saxon Ordinance of 1504. II That decree was revised and expanded in 1723. Titles 3 to 32 of Book 3 of those Statuten, Ordonnantien, Reglementen en Costumen van Rechte van Frieslandt (Statutes, Ordinances, Rules and Legal Practices of Friesland) contained the mIes of procedure applying to cases before the Court of Friesland. 12 The peace enjoyed during the eighteenth century was cmelly disturbed in 1795 by the arrival of French troops and the seizure by the patriotic faction of power from the Orange faction. The old Republic ceased to exist. The new provincial administration made a clean sweep of things. The judges of the Court were amongst those removed from office. They were regarded as typical representatives of the old regime. There began aperiod of tension. The threat arose of an amalgamation with the Hoge lustitiekamer (High Chamber of Justice), the highest court in Groningen, as a result of a geographical reorganisation of the entire country. However, that dark stormcloud was dissipated by the Constitution of 1801, which restored the provincial boundaries applying prior to 1795. In 1802 the Court was given a new name: the Wettig Constitutioneel Departementaal Gerechts-HoJ van 9 Observationes rerurn forensiurn ac notabiliurn, in suprerna Frisiorurn curia judicatarurn; the second part (entitled sornewhat differently frorn the first part) dates frorn 1727. 10 See, with regard to Ulrik Huber and Zacharias Huber: Vries, Hempenius-van Dijk, Nieuwland and Baks, De Heeren van den Raede, paragraphs 180 (U. Huber) and 201 (Z. Huber). 11 Statuten, Ordonnantien ende Costurnen van Frieslandt, Leeuwarden, 1602. 12 The rnethod in which proceedings were conducted in the Court of Friesland in the 18th century is described by Elias Wigeri in his collegedictaten (lecture notes), a sizeable part of which is to be found in the Provinciale Bibliotheek (Provincial Library) in Leeuwarden (the old versions of the notes are contained in MS. 253 and 613, and the new version in MS. 483, 1037, 1341, 1344, 1344a and 5254). See B. S. Hempenius-van Dijk, Levensloop van prof. Elias Wigeri, also dealing with the lecture notes of his students, in: Inventaris van het archief van het Hof van Friesland, Leeuwarden, 1999, with annexes. See also B. Hempenius, La formation des jeunes avocats a la Cour de Frise au ternps de la Republique des Sept Provinces Unies, in: O. Moorman van Kappen (ed.), Les luridictions Sup6rieures, Nijrnegen, 1994, p. 67 et seq. 2*

20

Chapter I: The Court of Friesland: Abrief history of the institution

Friesland (Lawful Constitutional Departmental Court of Friesland); this was followed in 1803 by the issue of new rules. Incorporation into the French Empire in 1811 brought to an end the existence of the once so iII ustrious court: the Court of Friesland was replaced by a Rechtbank van Eerste Aanleg. 13

2. The jurisdiction of the Court of Friesland The question as to which Frisian court had jurisdiction in which cases from 1499 onwards does not lend itself to any simple answer. The rules goveming competence were subject to a number of exceptions. The hierarchical structure of the judicial status quo was, on the face of it, reasonably straightforward. There were only two judicatures: the municipal or grietenij courts (also referred to as the lower courts) and the Court of Friesland. However, the situation was complicated by the existence of sundry special judicial bodies, such as the Academic Court of the University of Franeker, a military court, a hunting tribunal, and so forth. In addition, there existed the possibility of a major or minor review of the Court's decisions. Minor reviews involved a sitting of the full Court in the presence of the Stadholder. Major reviews were undertaken by a college composed of three Frisian and three non-Frisian jurists, who adjudicated in the name of the provincial States. It is not proposed to consider all those specific forms of procedure in any depth. According to Ulrik Huber, judicial authority in Friesland was "even soo gestelt als sy nae Keyserlijke Rechten beschreeven wordt" (organised in the same way as portrayed in imperial laws).14 From those laws - by which Huber meant, for the most part, the legal system established by lustinian there clearly emerged the principle that the capacity of the defendant formed an important element of the exercise of jurisdiction in civil cases. Starting with the Saxon Ordinance of 1504, it was prescribed in all applicable legislation that no burgher or householder (countryman) could be summoned to appear in first-instance proceedings before the Court. For such parties, therefore, the Court functioned as an appellate body in civil cases. 15 For all other persons, such as clergymen, members of the States of Friesland, noblemen, physicians, university professors and high-ranking of13 See the introduction to the Inventaris van het archief van het Hof van Friesland, Leeuwarden, 1999; B. S. Hempenius-van Dijk, De appelprocedure in ci viele zaken voor het Hof van Friesland, in: Gids voor het Procesrecht van de 17e en 18e eeuw (to be published in the near future). 14 Huber, Heedendaegse Rechtsgeleertheyt, IV, 14.2. IS See, for example, Article I in Title 8, Book 3 of the Landsordonnantie (local decree) of 1723. The decisive factor with regard to territorial jurisdiction in first-

3. The applicable law

21

ficials, the Court thus operated, in principle, as a court of first instance in civil cases (see, by way of example, the ac count of the proceedings between two physicians on 17 December 1744, contained in Chapter XIII of this work). In addition, burghers or countrymen could agree, for example, to submit disputes directly to the Court. Lastly, there were various categories of cases wh ich had to be brought at first instance before the Court, regardless of the capacity of the parties: matrimonial and divorce proceedings, claims for damages in proceedings regarding the deflowering of maidens, defamation cases (see Chapter XII of this book relating to the actio iniuriarum, an action for injury and defamation of character), and the like. 16 In criminal proceedings, the Court of Friesland adjudicated at first instance on all serious criminal offences (comparable to felonies nowadays), whilst the lower courts tried all minor offene es (of the type now known as misdemeanours). This work is not concerned with criminal cases.

3. The applicable law Medieval jurists and their imitators customarily followed the example of the Roman jurist Gaius in drawing a distinction between law which is indigenous to a particular people and law which is common to all peoples. 17 Following on from that tradition, Huber wrote that the civil law in Friesland consisted of two different sorts of laws: Roman laws (known as ordinary or imperial law) and Frisian laws (usually referred to as "Ordonnanties"). Amongst the latter, the most important was the Landsordonnantie (Iocal decree) of 1602, a revised version of which appeared in 1723, known as the Wetboek voor de geheie (Friese) natie (Code applicable to the entire (Frisian) people). In addition to such written law, there existed the customary, unwritten Frisian law. The primary system of law applied by the Court in determining disputes was Frisian legislation and unwritten Frisian law. However, the Frisian legislature was somewhat reticent when it came to drafting indigenous laws. Roman law applied in all cases where no Frisian law could be found to exist. The rationale for the validity of Roman law was found in its "ingenuity" and "fairness", in which it surpassed all other legal systems. 18 Van den Sande had already observed very explicitly with regard to Friesland that instance proceedings before the lower court was the defendant' s place of residence (Huber, Heedendaegse Rechtsgeleertheyt, IV, 22, 1). See C. 3, 13, 2. 16 For fuH details, see B. S. Hempenius-van Dijk, De appelprocedure in civiele zaken voor het Hof van Friesland. 17 D. I, I, 9. Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium horninum iure utuntur.

22

Chapter I: The Court of Friesland: Abrief history of the institution

"daer met toestemminghe des VoIcks ende authoriteyt der Staten de Roomsche wetten aenghenomen zijn in alle dinghen waer van niet anders door Resolutien der Staten ghedefinieert ende besloten iS.,,19 ["there, with the consent of the people and by authority of the States, Roman laws are accepted as being applicable in all matters where no contrary rules have been formulated and decided by resolutions of the States."]

There was already no shortage, in early times, of writings indicating that Roman law was applied more strictly and precisely in Friesland - inter alia by the Court of Friesland - than elsewhere. 2o These are echoed in the works of Huber father and son. Ulrik Huber famously wrote that: "het Roomsche Recht hier suiverder en platter onderhouden wort, als in eenig deel, landt of staet van de Christene wereld.,,21 ["Roman law is observed here in a purer and more straightforward fashion than in any region, country or state in Christendom."]

In Zacharias Huber' s view, there was no other place in the world in which the authority of Roman law was adhered to more comprehensively and with less abridgement (magis integram illibatamque) than in "our" Friesland. He spoke of a religious veneration for Roman law. 22 In his opinion, the explanation for this difference between Friesland and the other regions was to be found in the fact that Frisian jurists were far slower to consider some ancient institution as a Roman subtlety which could be disregarded. In addition, they held Roman law in great esteern, and were less prone to distorting its meaning. 23 Moreover, the Frisian jurists and judges considered that greater trust should be placed in the law than in the cerebral notion of fairness, which was equated with judicial arbitrariness. 24 18 Huber, Heedendaegse Rechtsgeleertheyt, I, 2, 24, 28 and 46. See also the Nadere Voor-reden (detailed introductory remarks) of Z. Huber relating to the Heedendaegse Rechtsgeleertheyt. These referred to indigenous law - after the example of Ulpian in D. I, 1,6 - as something taken from or added to the ordinary or Roman law. 19 Van den Sande, Gewijsder Saecken, IV, 4, I. 20 Suffridus Petrus, Oratio de praestantia legum Romanarum ad Amplissimum Ordinem Statuum Frisiae, Antwerp, 1574, epistola dedicatoria, p. 5; Van den Sande, Gewijsder Saecken, 11, 2, 7. See also T. Herbaius, Rerum quotidianorum liber singularis, second impression, Leeuwarden, 1642, p. 120. 21 Huber, Heedendaegse Rechtsgeleertheyt, I, 2, 47. 22 Z. Huber, Oratio de usu atque autoritate juris Romani in Frisia, Franeker, 1695, p. 12; Z. Huber, Observationes rerum judicatarum, Obs. L (p. 187); J. Voorda, Differentiae iuris Romani et Belgici, Utrecht, 1745, Book I, Title I, 5; F. A. van der Marck, Institutiones juris civilis privati communis et reipublicae Groningo-Omlandicae proprii, Groningen, 1761, p. 90; C. H. Trotz, Dictata ad Jus patrium, § 2 (UBA, 111" F 34); H. Cannegieter, Dictata de differentiis juris Romani et Frisici secundum ordinem pandectarum auctore Westenbergio, p. I (PBL, MS 1085). 23 Z. Huber, Oratio de usu atque autoritate, p. 16 et seq. and p. 19 et seq.

3. The applicable law

23

Most authors of more modem works have likewise remarked, with regard to the pervading influence of Roman law in Friesland, that, in medieval legal practice, it played a far greater role than in the other territories of the Republic, and that it was more strongly established in Friesland than in any of the other provinces.25 In almost all the countries of western Europe, the phenomenon described so extensively and with such approval by the Frisian jurists has manifested itself: namely, the permeation of Romano-canonical law into local legal practice. This phenomenon has entered the annals of history , where it is referred to as "the reception of Roman law". ,Whilst it is true that this permeation did not occur everywhere in the same manner and to the same degree, and whilst the fusion of indigenous law and Romano-canonical law produced different results in different regions and countries, Roman law nevertheless forms the breeding-ground from which the national systems of private law that we know today have sprouted forth. In Friesland, according to a view held by many, Roman law displaced virtually all indigenous law. G. de Wal even went so far as to say, in 1830, that the attachment of the Frisians to Roman law had provoked a tendency to scoff amongst various Germans teaching that law in Franeker, such as A. Wieling (1693-1746), professor from 1727 to 1739, and J. G. Heineccius (1681-1741), professor from 1723 to 1727.z6 The expression of those views, and comparable ones, conceals a measure of exaggeration. Both Ulrik Huber and Herman Cannegieter (1723-1804), professor at Franeker from 1751 to 1795 and from 1802 until his death, pointed out, for example, differences between Roman and Frisian law. The law applying in Friesland was an amalgamation of indigenous law and Roman law, canonical law and feudal law. It is appropriate, by analogy with 24 Z. Huber, Oratio de usu atque autoritate, p. 21 et seq.; Hamerster, Statuten, Ordonnantien, Voorrede. Van Bijnkershoek likewise warned of the danger of cerebral jurisprudence. He also considered that the judgments delivered by the courts were insufficiently consistent with the jus civile and excessively concerned with fairness. See C. van Bijnkershoek, Opera omnia, I, ed. Leiden, 1767, p. 6. See also H. Kooiker, Lex scripta abrogata. De derde renaissance van het Romeinse recht, Nijmegen, 1996, pp. 62-63. 25 S. J. Fockema Andreae, Rechters en rechtsvorming in Friesland, Bijdragen tot de Nederlandsche Rechtsgeschiedenis, IV, Haarlem, 1900, p. 86; L. J. van Apeldoorn, Het Romeinsche recht in Friesland, Mededeelingen der Nederlandsche Akademie van Wetenschappen, Amsterdam, 1940, p. 54; A. S. de BlecourtH. F. W. D. Fischer, Kort Begrip van het Oud-vaderlands Burgerlijk Recht, sixth impression, Groningen-Jakarta, 1950, p. 20. Kooiker even goes so far as to speak of Roman law having been absorbed in complexu: Lex scripta abrogata, p. 30. 26 G. de Wal, [discourse by:] Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Auslandes, Vol. I, in: Bijdragen tot Regtsgeleerdheid en Wetgeving 5 (1830), p. 293.

24

Chapter I: The Court of Friesland: Abrief history of the institution

Roman-Dutch law, to speak of Roman-Frisian law. In the Republic, this amalgam of law was given a Latin name, the jus hodiernum, which tenn was used, moreover, to designate the law taught in the universities of the Republic in the seventeenth and eighteenth centuries. Indeed, the RomanFrisian variant of the jus hodiernum occupied a central place in the Uni versity of Franeker. 27 The question arises as to the point in time at which the process of the penneation of local legal practice in Friesland finally reached its conclusion. Much has been written about that question. Certain jurists in fonner times claimed to be able to trace the ascendancy of Roman law back to a specific point in time. Zacharias Huber and D. Hamerster 28 were of the view that Dukes Albrecht and Georg of Saxony had permitted the Court of Friesland to administer justice in accordance with Roman law. 29 Ulrik Huber claimed to be able to trace the adoption of Roman law back to the agreements reached by the Frisians with Charles V in 1524; Hamerster regarded the treaty with Charles as confirming what had previously been agreed under the Dukes of Saxony.30 The views of Zacharias Huber and D. Hamerster were endorsed by Van Apeldoorn and Gerbenzon,31 whilst those of Ulrik Huber won the support of Telting and Den Tex. 32 Unfortunately, the above-mentioned suggestions as to the time at which Roman law may possibly have been fonnally adopted in Friesland provide relatively little indication of the period in which it actually began to be used in the province. Extensive research has been carried out in the past with a view to detennining the relevant point in time. Telting unearthed various clues in the old Frisian laws, indicating, in his view, that Roman law and canonical law were not unknown prior to the sixteenth century. He maintained that this was apparent from references in wills and the rules 27 C. J. H. Jansen, Oe ontdekking van het vaderlandse recht in de achttiende eeuw, in: Oocumentatieblad Werkgroep achttiende eeuw 24 (1992) I, p. 57 et seq.; M. J. A. M. Ahsmann, Teaching the ius hodiemum: legal education of advocates in the northem Netherlands (1575-1800), in: Tijdschrift voor Rechtsgeschiedenis 65 (1997), p. 423 et seq. 28 As to whom, see: Vries, Hempenius-van Oijk, Nieuwland and Baks, Oe Heeren van den Raede, para. 200. 29 Huber, Oratio de usu atque autoritate, p. 28 et seq.; Hamerster, Statuten, Ordonnantien, Voorrede. 30 Huber, Heedendaegse Rechtsgeleertheyt, I, 2, 47; Hamerster, Statuten, Ordonnantien, Voorrede. 31 Van Apeldoom, Het Romeinsche recht in Friesland, p. 385; Gerbenzon, Enkele nieuwe gegevens over de receptie van het Romeinse recht in Friesland, p. 144 et seq. 32 I. Telting, Oe invoering van het Romeinsche Regt in Friesland, in: Tijdschrift voor het Nederlandsch regt I (1868), p. 57; C. A. den Tex, Encyc10paedia jurispridentiae, Amsterdam, 1839, § 424.

3. The applicable law

25

regarding prescription. However, there was in his opinion nothing to suggest any conscious adoption of Roman law as a whole by any legislature in the fourteenth and fifteenth centuries. According to Telting, the use of the term "keizerrecht" (imperial law) could not be taken to indicate any such formal adoption. Now and then, that term, as found in the medieval sources, meant purely Roman law; in numerous other instances, however, it referred to the "Imperial German laws", meaning the laws of the Holy Roman Empire. Van Apeldoorn did not subscribe to the findings arrived at by Telting. He took the view that, as early as the thirteenth century, the prevailing body of legal opinion had already accepted Roman law as a binding system of law. He ascribed this to the strong influence exerted by the c1ergy and the disintegration of the indigenous system of law which resulted in the fourteenth and fifteenth centuries from the erosion of the central power and the conflicts between the Schieringers and the Vetkopers. The c1ergy had a great influence on the law and on legal practice. They frequently drew up a11 kinds of deeds (including, for example, purchase agreements, mortgage deeds and guarantees), and were involved in proceedings as advisers. In Van Apeldoorn's view, moreover, it was quite c1ear that the references in the medieval sources and deeds to "keizerrecht" genera11y or exclusively meant Roman law. Feenstra endorsed Van Apeldoorn's findings with regard to the familiarity of the clergy with Roman law, but was unable to discover any evidence showing that that system of law was actua11y applied in legal practice during the period from the thirteenth to the middle of the fifteenth centuries. According to Feenstra, the references to the term "keizerrecht" did not lend themselves to an unequivocal interpretation: "keizerrecht" might signify the system of law applying in the Holy Roman Empire, but could equally indicate Roman law?3 In view of the differing opinions expressed by Telting, Van Apeldoom and Feenstra, it is not particularly surprising that Gerbenzon should have concluded that there was an absence of any communis opinio regarding the time at which, and the extent to which, Roman law was adopted in Friesland. 34 Gerbenzon endorsed the view that the clergy had exerted great influence on the law, and deduced from the available 15th century source material that canonical law had a greater influence than Roman law on everyday legal practice. Having regard to Frisian legal literature and legal practice in the 15th century, he considered that it was appropriate to speak 33 Telting, Oe invoering van het Romeinsche regt in Friesland, p. 20 et seq. (p. 46), p. 48 et seq.; Van Apeldoom, Het Romeinsche recht in Friesland, p. 395 et seq., p. 406 et seq., p. 432 et seq.; Feenstra, Keizerrecht en Romeins recht in Friesland, p. 220 et seq., p. 232 et seq. 34 P. Gerbenzon, Excerpta legum. Onderzoekingen betreffende enkele Friese rechtsboeken uit de vijftiende eeuw, Groningen/Jakarta, 1956, p. 5.

26

Chapter I: The Court of Friesland: Abrief history of the institution

of Frisian law having undergone a process of "canonisation" rather than "Romanisation". The year 1499 marked a turning-point. When establishing the Court of Friesland, the Saxon dukes had in mi nd the example of the Saxon Gerichtsordnungen and the Court of Saxony. They wanted to have a secular justice system at the forefront. The secular courts administered justi ce primarily in accordance with indigenous law and secondarily in accordan ce with Roman law. Gerbenzon states that, as a result of this practice, Roman law came strongly to the fore from 1499 onwards. 35 The arguments advanced by Telting, Feenstra and Gerbenzon clearly show, despite their differences of opinion, that the establishment of the provincial Court, in which academically trained judges administered the law, proved to be highly important for the adoption of Roman law in Friesland. This conclusion comes as no great surprise. It is apparent from numerous partial analyses of the adoption of Roman law that the setting-up of a central (appellate) court has frequently been a decisive factor in the reception 'of Roman law into local legal practice. 36 Feenstra's conclusion that the term "keizerrecht" does not, in the various legal sources in which it features, refer unequivocally to Roman law is supported by other research. 37 Thus, the appearance of that term in deeds and law books teIls us little about the point in time at which Roman law began to be applied in Friesland. The steady Romanisation of indigenous Frisian legal practice appears in all probability to have gained increasing momentum and intensity after 1499. Clearly, no formal declaration by any legislature was needed in order for this to happen. It was not until 1723, in the preface to the Landsordonnantie of that year, that the Frisian States made any pronouncement concerning the position of Roman law. "... dat de Romeinsehe wetten al't zederd menichte van jaaren, en onder de voorige regeeringen waaren aangenomen en gebruikt, ook van tijd tot tijd so onder het bestier van de hertogen van Saxen als naderhand onder Keizer Karel de V daaraan toegevoegd veele noodige, dienstige en prijslijke ordonnantien en rechten. (... ) Maar, gelijk het introduceeren van de Roomsche rechten buiten twijf35 Gerbenzon, Enkele nieuwe gegevens over de receptie van het Romeinse recht in Friesland, p. 144 et seq. (pp. 156-157); Gerbenzon, Excerpta legum, p. 378 et seq. 36 W. 1. Zwalve, Hoofdstukken uit de geschiedenis van het Europese Privaatrecht, I Inleiding en zakenrecht, Groningen, 1993, p. 1 et seq.; G. C. J. J. van den Bergh, Geleerd recht. Een geschiedenis van de Europese rechtswetenschap in vogelvlucht, third impression, Deventer, 1994, p. 40 et seq.; see also O. Moorman van Kappen, De wording van het Hof van Gelre en Zutphen (1543-1547), Enige beschouwingen over en naar aanleiding van de voor- en ontstaansgeschiedenis van de Gelders-Hertogelijke kanselarij als oudste Gerechtshof te Arnhem, Arnhem, 1998, p. 19 et seq. 37 C. J. H. Jansen, Natuurrecht of Romeins recht. Een studie over leven en werk van F. A. van der Marck (1719-1800) in het licht van de opvattingen van zijn tijd, Leyden, 1987, passim.

3. The applicable law

27

fel wel en wijsselijk is begreepen geweest, en dezelve ook daarom 't zederd altijd in gebruik en observantie zijn gebleeven in al het geene, waar in dezelve niet zijn verandered, of waar in aan dezelve niet is gederogeert door eenige civile wetten en costumen dezer provincie, ja dat zulks altijd is en noch bij ons word geconsideerd als een vaste en wezentlijke maxime van onze regeeringen (... ) .38 [" ... the Roman laws were already accepted and used for many years, under the previous govemments, inc1uding, from time to time, the administration of the Dukes of Saxony, and subsequently under Emperor Charles V, with the addition of many necessary, useful and commendable decrees and prerogatives. (... ) Equally, however, there can be no doubt that the introduction of Roman laws was properly and wisely conceived, and the same have remained in use, and have been observed, since time immemorial, save in so far as they have been amended or derogated from by sundry civil laws and customs of this province, so that they have ever been, and are still, regarded by us as a fixed and fundamental principle of our govemments (... )". The case-files show that Frisian lawyers continued to rely on Roman law up until the dissolution of the Court in 1811. 39 Indigenous law and Roman law were not the only legal sources. In the 18th century, a new source of law developed: natural law. The meaning attributed at the time to that type of law may be inferred from the definition formulated by the Groningen professor, F. A. van der Marck (1719-1800): "Natural law is the law common to all persons and citizens; it is constant and immutable, and does not depend on human will, being instead fixed by divine providence, in accordance with the order of things. It emanates from the essential nature of persons, citizens and things.,,4o According to those subscribing to the concept of natural law, many provisions emanating from Roman law were essentially rules of natural law. The practical difference between natural law and the jus civile was to be found, according to C. H. Trotz (1703-1773), professor at Franeker from 1741 to 1755, in the fact that natural law focused on the concept of aequilas (fairness), especially in the case of agreements, and thus regarded good faith as constituting the basis of all contracts. From this, it followed that any prejudice suffered by a given party, no matter how minor, bad to be made good. 41 There bas not to date been any in-deptb researcb into tbe influence exerted by natural law on legal practice. Tbe case-files and judgments of tbe Court of Friesland contain few references to tbe natural-Iaw Cited by Fockema Andreae, Rechters en rechtsvorming in Friesland, p. 88. See Case No 16451: judgment of 27 October 1810 in proceedings between Sape Jans and Simon Gerroltsma, in which reliance was placed on "the title of the Pandects in fraudem creditorum" (referrlng to D. 22, I, 38, 4). 40 F. A. van der Marck, Oratio de libertate reipublicae Groningo-Omlandicae interna, unice propriis patriae legibus innixa, Groningen, 1761, p. 19. 41 C. H. Trotz, Ad collegium practicum, p. 42 (UBA, mOF 33). 38

39

28

Chapter I: The Court of Friesland: Abrief history of the institution

characteristics of any given rule. One example is to be found in a judgment delivered on 26 October 1795 in proceedings between Lysbeth Jans and Hendrick Wybes, which expresses the precept that it is inequitable, by virtue of natural law, for any person to be enriched at the expense of, and to the detriment of, another - that being, incidentally, a rule which was already to be found in Roman law. 42 Another example is to be found in the litigation between the owners of the island of Schiennonnikoog and the States of Friesland, dating from 1737. The owners regarded the sale agreement between Johan Stachouwer and the States as a contractus naturalis et bonae fidei et juris gentium. Enforcement of the rights and obligations flowing from that contract was thus possible on the ground of the naturalis ratio. 43 Pufendorf's work was also cited on occasions by practising lawyers. From time to time, reference was made to natural freedom. For exampie: since, according to the Court, there existed no recognised servitude penniuing water flowing off another person's roof to be diverted into one's own rain-water tank, the Court had no power to prohibit a person from hirnself collecting the rain-water from his own roof. Any such prohibition would amount to a "deprivation of natural freedom".44 The research carried out by the authors of this work provides, however, no basis on which to conclude that the Frisian lawyers and the Court applied natural law to any significant extent. On the contrary, the opposite appears to be the case: their aversion to judgments based solelyon considerations of fairness IS openly expressed on numerous occasions, as this work will show.

4. The mutual relationship between Frisian and Roman law The general assumption is that the extent to which Roman law was able to penneate local practice depended on the legal force of the indigenous law. The most important native source of Frisian law - besides customary law - was, as mentioned above, the Landsordonnantie of 1602, which was revised in 1723. 45 Where that indigenous law provided no solution to a specific legal problem, the way was not yet immediately clear for the application of Roman law as an alternative source of law. Ulrik Huber wrote See also O. 50, 17, 206. Relying, obviously, on O. I, I, 5. See F. A. J. van der Yen, Een omstreden eiland. Oe eigendom van het eiland Schiermonnikoog in geding, Groningen, 1993, p.329. 44 Case No 16453: judgment of 27 October 1810 in proceedings between JeBe Wildschut and Frans Tjallinga. 45 Commentaries on the Ordonnantie of 1723 were published by Dominicus Hamerster and Simon Binckes; see also G. Nauta, Commentaria in quator libros Statutorum Frisiae, MS Hof 4. 42 43

4. The mutual relationship between Frisian and Roman law

29

that, where there was a total absence of laws or customs, it was usual to seek guidance from the laws and customary practices prevailing in neighbouring jurisdictions (for examp1e, it was normal to look to the province of Ho\1and for guidelines concerning the law on bills of exchange and insurance, those being, moreover, matters in respect of which no rules were to be found in Roman law).46 The relationship between indigenous law and Roman law was determined by a number of rules of interpretation. According to the old interpretational doctrine going back to Bartolus (1314-1357), the scope of a local ru1e could not be extended by means of interpretation (statuta sunt stricte interpretanda).47 The judges sitting in a central court, being jurists schoo1ed in Roman law at a European university, were, virtua\1y without exception, who\1y, or almost who\1y, ignorant of the indigenous law. They were therefore inclined to interpret indigenous law as strict1y as possible. From the end of the 17th century onwards, the old rules of interpretation were increasingly rejected by academic legal authors, as is apparent from the works of jurists such as Johannes Voet (1647-1713), whose Commentarius ad Pandectas (first printed in 1698) was to be frequently cited by 18th century Frisian lawyers, and Johannes Schrassert (1687-1756), an authoritative advocate at the Court of Gelre and a renowned scholar in the field of the law of Gelderland. Kooiker drew attention to the development of a practice wh ich he described as the affinity rule: for the purposes of amplifying or clarifying points arising from Roman law or locallaw, as the case may be, the decisive factor is whether the issue in respect of which the lacuna or doubt in question exists bears a greater affinity to Roman law or whether, on the other hand, it has a closer connection with indigenous law. 48 By the end of the 18th century, there was even said to exist - in general terms - a policy of applying an extensive interpretation to indigenous law, both in legal practice and in tbe works of academic autbors, and a strict interpretation to matters of Roman law. 49 Is it also possible to discern in Friesland a movement away from a narrow construction of indigenous 46 Huber, Heedendaegse Rechtsgeleertheyt, I, 2, 62. The same view had previously been expressed by Groenewegen van der Made, in De legibus abrogatis, prooemium, No 16. It was also propounded in the 18th century, for example by C. H. Trotz in Dictata in jus patrium secundum ordinem Digestorum, par. 3 (UBL, BPL 1065), and by a number of Gelderland authors (see Kooiker, Lex scripta abrogata, p. 26, note 115). 47 For variants on this, see Kooiker, Lex scripta abrogata, pp. 16-17; also J. H. A. Lokin, SPEIP 96a ofwel Bartolus en het Ommelander Landrecht, in: J. H. A. Lokin, Tekst en uitleg, Groningen, 1994, p. 63 et seq. 48 Kooiker, Lex scripta abrogata, p. 24. 49 Jansen, De ontdekking van het vaderlandse recht in de achttiende eeuw, pp. 59-60; Kooiker, Lex scripta abrogata, pp. 27-28.

30

Chapter I: The Court of Friesland: Abrief history of the institution

law and a trend towards a wider interpretation? That question cannot be answered with any certainty. It is only in the works of one 18th century Frisian jurist that any clear statement is to be found in that connection. J. Voorda (1698-1768), professor at Franeker from 1727 to 1730, appears to reject the application of an excessively strict interpretation to indigenous law in Friesland. He was not, however, in favour of an excessiveiy broad interpretation either. Such an interpretation was justified only if the law in question would otherwise produce an absurd result running counter to common sense. 50

5. Conclusion In her thesis on the property disputes relating to Schiermonnikoog, Van der Ven has already pointed out that, in her view, Roman law was the most important source relied on by practitioners of civil law in Friesland. In her opinion, it was characteristic that the parties in this dispute had such extensive recourse to passages from the Digest and Codices and to the writings of Romanist authors. They even cited Roman-Iaw texts to support their arguments in cases which appeared to have scarcely anything to do with the problems dealt with in the passages in question. 51 According to Huber, there were three things in wh ich a lawyer needed to be weil versed: Roman "Iaws" , the Ordinances of Friesland and the "commentaries" of a number of authors on the Roman "Iaws" . It is striking to note that he completely ignored the question of customary law (nor, indeed, have the authors of this work come across any reference to the customary law of Friesland in any of the cases considered in the following chapters). In Huber's view, the requisite knowledge of Roman law necessarily encompassed not only that part of the Roman system which was in use in the Republic but also that part which was no longer used: without a knowledge of the one part, it was not possible to understand the other part. 52 Indeed, Huber expected judges to possess the same knowledge, "first, of Roman law, and second, of the Ordinances of Friesland".53

50 J. Voorda, A Treatise on statutes, their effect and interpretation ( ... ), edited and translated into English by M. L. Hewett and P. van Warrnelo, Kaapstad, 1995, p. 33 et seq. 51 Van der Ven, Een omstreden eiland, p. 46 and p. 97. 52 Huber, Heedendaegse Rechtsgeleertheyt, IV, 18, 14. He specified three jurists by name: Van den Sande, Gaill and Faber. 53 Huber, Heedendaegse Rechtsgeleertheyt, IV, 15, 13. Here too, Huber remarks that a judge needed to be familiar with the entire corpus of Roman law, both that part which was in use and that part which had faHen into desuetude (IV, 15, 14-15).

5. Conclusion

31

Anyone who studies the 18th century case-files deposited in the Rijksarchief [State archives] in Friesland will note that the lawyers rely, in principle, on a limited number of authoritative authors. An illustration of this is to be found in the citations made in the proceedings between Egbert Vos de Wael and Lambartus Vitringa concerning the place of performance of an agreement. 54 As regards the procedural niceties of the case, reliance was placed on A. Gaill's Practicae observationes. With respect to the inherent merits of the claim, reference was made to the Decisiones Frisicae of J. van den Sande, A. Faber's Rationalia in primam, secundam et tertiam partem Pandectarum, U. Huber's Heedendaegse Rechtsgeleertheyt and Praelectiones juris civilis, 1. Voet's Commentarius ad Pandectas and Z. Huber's Observationes rerumjudicatafium.55

The application of Roman law in Frisian legal practice seems to be a Jai! accompli. However, that observation does not answer all questions. Thus, the question arises, for example, whether Roman law may perhaps have been less readily or less extensively cited in the 18th century than in the preceding century. Which parts of Roman law were cited? In wh at way was it cited and used? Is there anything in the case-files from which any condusions can be drawn regarding the position occupied by indigenous law? These are questions to which the authors of this work will attempt to provide answers in the following chapters. In answering those questions, they propose at the same time to draw attention to solutions fumished by Roman-Dutch law. The collected documents relating to Roman-Dutch law edited by Feenstra and Zimmermann56 provide ample material for a comparison between those two branches of European private law. A special role was reserved for the case-Iaw of the Court of Friesland itself. By the 18th century, the Frisian judges had at their disposal a number of collections of decisions made by their Court (for example, the editions compiled by Van den Sande and Zacharias Huber). Although, in accordance with the custom prevailing at that time, those judicial decisions did not contain a statement of the reasons on wh ich they were based, the view favoured by the Court in a given case was quite dear from its treatment of the cases. Various questions arise. Were the published decisions of the Court of Friesland cited by lawyers? Was any reference also made to Case No 13384: judgment of 20 December 1741. The plaintiff asserted that, in that case (which concerned repayment of a sum of money lent), payment should take place in accordance with the law of the place in which the agreement had been concluded (with reference to D. 50, 17, 39 and D. 22, I, 37). The defendant maintained that the debtor was entitled to choose the place where the payment was to take place, and was thus at liberty to make payme nt in accordance with the law applying in the place specified by hirn (with reference to D. 5, 1,43, D. 12,6, 27 and D. 45, I, 37). The Court of Friesland found in favour of the plaintiff. 56 R. Feenstra-R. Zimmermann (ed.), Das römisch-holländische Recht. Fortschritte des Zivilrechts im 17. und 18. Jahrhundert, BerJin, 1992. 54 55

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Chapter I: The Court of Friesland: Abrief history of the institution

unpublished decisions? If so, did they have any authoritative influence in support of a given point of view? For the purposes of answering the last of those questions, it is especially interesting to consider the wording of Codex 7, 45, 13, which provided that cases were to be decided on the basis not of exemplary precedents but of legislation. 57 As is weil known, Bavius Voorda (1729-1799), professor at Franeker from 1755 to 1765,58 harboured strong doubts about what we nowadays refer to as the effect of precedent in case-Iaw. According to Voorda, the authoritative force of previously decided case-Iaw was founded solelyon an unbroken line of cases in opposition to which no contrary decisions had intervened. 59 Voorda took the view that the crucial question was invariably whether a judgment was truly based on reason, rather than on assumptions, often incorrect assumptions. Virtually no case was identical to any other. In any event, he attached no great authoritative force to the examples set by decided cases: such cases were more likely to confuse the thought processes involved than to elucidate them.60 The methods practised by the Frisian jurists brought about the development of a contemporary interpretation of Roman law, namely Roman-Frisian law. Indigenous Frisian law lost a great deal of its authority and force in the fourteenth and fifteenth centuries, as a result of the civil war which raged in Friesland. Thus, Roman law, which, as a subsidiary system of law, filled the existing lacunae and removed the prevailing uncertainties, was able to acquire considerable influence in almost all areas of law. In that way, the Frisian jurists resolved problems which we, nowadays, are sometimes called upon to resolve anew. Moreover, Roman-Frisian law was a variant of the law that had been in force throughout western Europe for a very long time. Frisian jurists such as Van den Sande and Huber thus also had an authoritative influence in countries in which Roman law had permeated local legal practice. For that reason, it is particularly apparent from a study of the Frisian case-files that Roman-Frisian law is able to cast light on the cohesion, in terms of private law, which lies behind the diversity of the various codified national systems of law to be found in Europe.

C. 7, 45, 13: (.. .) cum non exemplis, sed legibus iudicandum est. The Voordas were truly a family of Frisian jurists. Printed and unprinted works emanating from them are to be found in the Provinciale Bibliotheek, Leeuwarden. See W. A. Verbeek, Oe Voorda Collectie. Catalogus van de door Johannes Henricus Voorda aan het Hof van Friesland ge1egateerde handschriften en gedrukte werken, Groningen, 1983. 59 Voorda was referring to D. 1,3,38. He referred at the same time to D. 1,3,39: in his view, any rule that was introduced not on rational grounds but as a result of an initial error could not have any force as regards matters to be decided in the future. 60 B. Voorda, Preface, in: Beucker, Rerum judicatarum, p. N et seq. 57

58

Chapter II

The beguiling ensign: The adventures of a minor under the patria potestas I 1. Minority Under the law as it applies today, a minor is a person who has not yet reached the age of eighteen. Such a person has the capacity provided that he acts with the consent of his statutory representative - to perform legal transactions. If the transaction concemed is one which a minor of his age may normally perform in society, he is tacitly deemed to have been granted the requisite consent. 2 Under Roman law, a minor passed through various stages before reaching his majority. He reached full age on auaining the age of 25. A minor lacked, in principle, the capacity to act. Until he reached his seventh year, he was an infans. He was incapable of performing any legal act, even in collaboration with a guardian. Boys aged between seven and fifteen and girls aged between seven and thirteen had the status of a pupillus. A pupillus was able validly to perform legal acts only in collaboration with his tutor. From the age of fifteen in the case of a boy and thirteen in the case of a girl, a minor, now known as a pubes or adolescens, no longer needed the assistance of a tutor. He was able to act independently, but any legal transactions entered into by hirn were liable to be declared void if the minor suffered any prejudice (loss or damage). However, such transactions were unimpeachable if they were performed with the assistance of a "curator". 3 Tutors and curators were forbidden to alienate or pledge (grant an hypothec on) any (specific) immoveable property without a "decree" - in other words, without the consent of the praetor. Such acts of alienation were automatically null and void by operation of law. Nullity could be pleaded without there being any question of the minor having suffered any prejudice or IOSS.4

I Case No 12480: judgments of 20 December 1730 (at first instance) and 15 July 1735 (judicial review). 2 See Article 1:233-234 BW [Burgerlijk Wetboek = Netherlands Civil Code]. 3 Lokin, Prota, PF 17.

3 LokinlJansenIBrandsma

34

Chapter 11: The adventures of a minor under the patria potestas

In Friesland, the Roman-Iaw rules conceming minority were absorbed virtually in their entirety into the legal system. As in Roman law, a minor passed through various stages before reaching his majority. Huber drew a primary distinction between minors who were "marriageable" and those who were not (puberes and impuberes), and then proceeded to c\assify nonmarriageable minors according to whether they were young infants (aged up to seven) or older (majores infantia, pupilLus).5 A minor reached his majority on attaining the age of 25 (that being, moreover, an age-limit which was applied throughout virtually the entire Republic). Legal acts embarked upon by a minor were voidable if they were shown to have caused hirn prejudice. In Frisian law, the rules conceming the prohibition of alienation and pledging were likewise followed. Huber's summary of the position is a model of c\arity: "Where alienation takes place without a decree having been enacted, it is worthless, and a minor may take possession of the property in all respects at any time within thirty years after it has been sold (.. .); similarly, in the case of pledging or granting an hypothec without the benefit of a decree, it seems that no action aris'ing from the hypothec nor any preference can be conferred, the reason for this being that pledging and mortgaging are covered by the prohibition on alienation." Where a sale took place without the benefit of a decree, it could be ratified if the minor had come of age, if he had been dec\ared to be of age or if he kept silent and raised no objection during aperiod of five years after he attained his majority.6 The meaning applied in Friesland to the term "alienation without a decree" was interpreted in the Landsordonnantie. That ordinance provided, in accordance with and following on from Roman law (as expressly recorded), that a tutor or curator, before proceeding to seil or grant an hypothec on immoveable property, was required to obtain the consent of the Court of Friesland, of a grietman 7 or of the magistrate for the town in which the property was located. 8 The adoption of the age distinctions existing under Roman law was sometimes ridiculed. F. A. van der Marck wrote as follows in his description of the law 4 See Digest title 27, 9, C. 4, 51, 7 and C. 5,74, 1-3. Girard, Manuel eIementaire de droit Romain, fifth edition, Paris, 1911, pp. 216-217. 5 Huber, Heedendaegse Rechtsgeleertheyt, I, 4, 17-20 and IV, 40, 1. He further subdivided marriageable minors into "simple" and "fully qualified" groups and rninors older than young infants into "minors recently out of infancy" and "minors approaching marriageable age". 6 Huber, Heedendaegse Rechtsgeleertheyt, 11, 54, 1, 20 and 23. Cf. De Groot, Inleidinge, 11, 48, 4: "Onmondighen die haer goed niet en moghen vervremden, moghen oock het zelve niet onderzetten" ["Minors to whom it is forbidden to alienate their property are likewise not entitled to grant an hypothec on it"]. 7 I. e., a local judge. 8 Hamerster, Statuten, Ordonnantien, I, 13, 9.

2. Patria potestas

35

applying in Groningen: "There are some who, in their efforts to 'seil' the trashy elements of Roman law, may perhaps repeatedly cry out, at the top of their voices, that I tend to express myself in too c1umsy a fashion, c1aiming that I have failed to distinguish between pupils and minors and between tutors and curators when dealing with matters relating to our legal system (... ). But used as I am to our indigenous laws, I seek to emulate the simplicity of the Germans, not the inanities of the Italians.,,9

2. Patria potestas The Roman family fonned a composite whole, consisting of blood relatives and non-relatives (such as slaves) under the authority of a head of the family. That head of the family was the oldest living member of the line, the pater familias. He was not subject to the authority of any other person, being sui juris (i.e., subject to his own independent powers). The pater familias exercised patemal power - the patria potestas - over his "family members", who were alieni juris, that is to say, subject to the power of another. Persons subject to the patria potestas possessed no property of their own. They were able to enter into legal transactions only with the consent of the pater familias. They needed to obtain such consent even for the purposes of contracting a marriage. \0 It should be noted, for the sake of c1arity, that the minority of a person was quite distinct and separate from the state of being subject to the authority of another. A minor could be a pater familias, whilst a person who was alieni juris could be someone of full age. In most of the provinces of the Republic, the Roman-law figure of the paterfamilias was not absorbed into the prevailing legal system. "The great and singular power of a father over the children under his authority is unknown in these lands", as Hugo de Groot stated in relation to the province of Holland. 11 In Friesland, on the other hand, Roman law was alive and kicking. Van den Sande wrote that "patemal power, with all its effects and consequences, as enshrined in law, retains its force in Friesland".12 This meant, for example, that a son who was subject to patemal power was un9 F. A. van der Marck, Institutiones juris civilis privati communis et Reipublicae Groningo-Omlandicae proprii, Groningen, 1761, par. 150 (in small characters). In support of that view, he referred to De Groot, Inleidinge, I, 7, 3. 10 Indeed, the power of the pater familias was originally unlimited: jus vitae necisque (the power of li fe and death). 11 De Groot, Inleidinge, I, 6, 3. See A. S. de Blt!court-H. F. W. D. Fischer, Kort begrip van het Oud-vaderlands Burgerlijk Recht, sixth impression, Groningen-Jakarta, 1950, p. 88, note 7. 12 Van den Sande, Gewijsder Saecken, 11, 7, I; Huber, Heedendaegse Rechtsgeleertheyt, I, 12.

3"

36

Chapter 11: The adventures of a minor under the patria potestas

able, without the consent of his father, to alienate or encumber any property, either by way of disposition inter vivos or by will. 13 In so far as the patria potestas subsisted within the Republic, it came to an end upon the attainment of majority (at the age of 25), save in Friesland, where the Roman-Iaw rules applied. 14

3. Minority and patria potestas in everyday practice Suppose that a minor who is still subject to patemal authority grants an hypothec on a piece of land. He does so by way of security for the repayment of money borrowed by hirn. In such a situation, all sorts of questions arise. Can a minor who is subject to patemal authority borrow money at all? Can such a person grant an hypothec? Can a minor ratify legal transactions previously entered into by hirn once he reaches his majority? These and various other issues will be considered with reference to the case we will discuss now: the case of the beguiling ensign. Bocco Feijtsma van Feugen 15 was an ensign in the army of the Prince. He had previously lost his mother whilst still a young child. He was "thus Jeft to his own devices, without any proper supervision or tuition, with the result that he forgot the habit of thrift and fell into debt". Thanks to his martial appearance, Bocco was able to inveigle the sister of his deceased mother, Lucia van Eysinga, into paying his debts, handing money over to hirn and buying things for hirn. Bocco's lawyer made some dubious allusions regarding the c10seness of the bond between aunt and nephew. The total owed by hirn to his aunt amounted to 3999 caroli florins, as was apparent from - inter alia - a deed dated 22 February 1714 (registered on 27 February 1714). Bocco denied that there had been any question of a genuine loan of money. He maintained that all the actions of his aunt had been intended as a gift. Two sets of proceedings took plaee in relation to that alleged money loan. In the first set of proceedings, the Court of Friesland ordered Boceo on 27 Oetober 1718 to pay to Lucia van Eysinga the sum of 3999 earoli florins (plus interest).16 That repayment posed a major problem for Boceo. He had numerous ereditors. IncIuding the interest owed by Bocco to Van Eysinga (829 caroli florins), his total debts amounted, at a given moment, to 4828 caroli florins. Van Eysinga 13 Huber, Heedendaegse Rechtsgeleertheyt, 11, 54, 27. 14 J. Voorda, Differentiae iuris Romani et Belgici secundum ordinem Digestorum strictim expositae et auditorum eaussa evulgatae, Leyden, 1769, Book I, Tide 6, § VII (p. 9). 15 For abrief genealogical summary, see DJ. van der Meer, Sierdsma-State to Deinum, in: Genealogysk Jierboekje 1964, p. 41. 16 Case No 10480: judgment of 27 October 1718 in the proceedings between Lucia van Eysinga, plaintiff, and Boceo van Feugen, defendant.

3. Minority and patria potestas in everyday practice

37

thereupon purchased from Bocco, for the sum of 4783 caroli florins, half of an estate (known as Oldersma). In the second set of proceedings, Van Eysinga's heiress, Beatrix Vos thoe Beesten, pleaded before the Court that Bocco's claim against Van Eysinga (for the purchase price of 4783 caroli florins) should be offset against Van Eysinga's claim against Bocco (amounting to the sum of 4828 caroli florins). At the same time, Vos c1aimed payment of the balance (45 caroli florins). The Court upheld Vos' claim in its entirety.17 Once again, the question of payment appears to have presented Bocco with a problem. By the time of the proceedings with which this chapter is chiefly concemed, Bocco's indebtedness to Van Eysinga (and her heirs) had risen once again to the sum of 838 caroli florins.

On 27 February 1714, in order to cover the debts owed by hirn to Van Eysinga, he had granted an hypothec over half of an estate in the vicinity of Hallum. He had already granted an hypothec over the same half of that estate, in favour of Boudewijn van Nes and the latter's wife, Catharina Bilderbeek. That hypothec in favour of Mr and Mrs van Nes was intended to sec ure the repayment of sums due under an agreement dated 20 May 1708 (registered on 9 May 1713) and 5 May 1719 (registered on the same day). The agreement of 1708 concemed the repayment of a sum of money which Van Nes and his wife Catharina had advanced to Bocco when he hurriedly left the parental horne and found shelter under their roof. The reason for tbat basty departure from bis parents' house lay in the fact tbat Bocco bad married a girl without his father's consent. He had lived with her for a time in the house of Mr and Mrs van Nes. However, because Bocco bad contracted that marriage without the consent of his fatber,18 the Court had declared it null and void. Upon leaving the bouse of Mr and Mrs van Nes, Bocco appears to bave been unable to discbarge bis indebtedness, and an agreement for the loan of money was drawn up. The 1708 contract and the registration in 1713, including the grant of the bypothec, were ratified on 5 May 1719. By that time, Bocco's fatber bad died: Bocco bad thus become sui juris. Moreover, be had attained his majority. In 1730 the Court was called upon to deli ver a judgment at first instance concerning the question as to wbich hypothec bad, in chronological terms, been granted first; that in favour of Van Eysinga or that in favour of Van Nes and bis wife. 19 In 1735 the same question arose a second time, but this 17 Case No 11378: judgment of 22 February 1724. In aseparate connection, Van Feugen had bimself instituted proceedings against Van Eysinga's heiress (Beatrix Vos thoe Beesten) conceming a piece of land - see Case No 11516: judgment of 20 December 1724. Van Feugen's claim was dismissed. 18 Men aged under 25 needed their father's consent to enter into marriage. See Huber, Heedendaegse Rechtsgeleertheyt, I, 12, 29; De Groot, Inleidinge, I, 5, 15. By contrast with the position under Roman law, marriage brought the patria potestas to an end if it was consented to by the father. Without such consent, the patria potestas subsisted (Huber, Heedendaegse Recbtsgeleertheyt, I, 12,50).

38

Chapter 11: The adventures of a minor under the patria potestas

time in the context of a judicial review. The parties to those proceedings were Georgh Frederick Vos thoe Beesten and others, as the heirs of Beatrix Vos, she being in turn the heiress of Lucia van Eysinga, and Jan Gysbertus Catzius, to whom Van Nes and his wife had assigned their claims against Bocco van Feugen.

4. The applicability of the sentltus consultum Macedonianum An initial issue which arose in the proceedings between Vos and Catzius was the applicability of the senatus consultum Macedonianum. That rule was closely linked in Roman law withthe rule concerning the patria potestas. Persons subject to their father's authority could not possess property in their own right. It was therefore difficult for them to obtain credit. They were at the mercy of usurers who appeared willing, naturally at a high rate o( interest, to await the death of the pater familias. The filius Macedo was driven to such depths of despair by the burden of his debts that he murdered his father. The senatus consultum Macedonianum, which took its name from the tragic figure of Macedo, provided that the lender of money to a son who was subject to patemal authority should have no action to reclaim his money, even after the death of the latter's father?O The filius or son subject to the power of the pater familias was in principle entitled to raise a valid defence (an exceptio) against any claim which might be brought for repayment of the loan. According to Huber, the senatus consultum rule also applied in Friesland. He explicitly wrote that children subject to patemal authority were precluded from borrowing money. Any agreement for such a loan was null and void. 21 In Friesland, as elsewhere in the Republic, a broad view was laken regarding the question of what constituted a money loan. 22 In the 19 We will consider together the legal arguments appearing from the lawyers' documents in the two sets of proceedings. No new facts were pleaded in the judicial review proceedings. 20 See D. 14, 6, 1 pr. 21 Huber, Heedendaegse Rechtsgeleertheyt, 111, 16, 23; cf. Van den Sande, Gewijsder Saecken, m, 2, 2: the senatus consultum rule did not apply to a son who was no longer subject to the patria potestas on the moment of the loan; Van der Marck, in Institutiones juris civili privati, par. 144, wrote that the senatus consultum Macedonianum did not apply in Groningen, since that rule presented an obstacle to trade. The senatorial decree was certainly applicable in Utrecht: see P. J. Verdarn, Romeins-Utrechts privaatrecht (1997), pp. 116-117. As to the applicability of the senatus consultum Macedonianum, see 1. W. Marckart, Exercitationes academicae, quibus selectoria quaedam cum publici turn privati juris argumenta ilIustrantur, et cum hodiemis moribus conferuntur, Harderwijk, 1751, Exercitatio 7.

4. The applicability of the senatus consultum Macedonianum

39

case of Bocco van Feugen, the question was at one juncture raised, as a precautionary point, as to whether the provision of board and lodging, without the same being directly paid for, could amount to a money loan. The parties did not ultimately pursue the point. They thus acknowledged that, as between Van Feugen and Van Nes and his wife, money had indeed been lent and borrowed. In the course of the proceedings in question, one of the parties, Vos, maintained that, by virtue of the senatus consultum Macedonianum, Van Nes and his wife were not entitled to make any claim at all. That assertion formed, in turn, the basis of his argument that the agreement between Van Feugen and Van Nes was not such as to necessitate the grant of an hypothec. According to Vos, since the rule "divested" the lenders of any action, the agreement was "vitiated" and could not create any right arising from an hypothec, the reason being that an hypothec is an accessory (or ancillary) right: it cannot exist without the right to claim a debt. Catzius, the opposing party, was unable to raise any substantial objection to that argument. He pointed out, however, that Van Feugen had ratified the loan in 1719, at a time when he had reached his majority and his father had died. The question arose as to what legal consequences flowed from the ratification of the loan. According to Catzius, it was to be inferred from the particular provisions of the senatus consultum Macedonianum that the ratification in question had produced an effect and, indeed, that it operated retroactively from the time when the agreement between Van Feugen and Mr and Mrs van Nes was registered. In support of that argument, Catzius referred, in particular, to the comparable circumstances in which the senatus consultum did not apply, namely where a son, having become sui juris, repaid part of the debt. 23 That view subsequently won the approval of Hamerster, who even went further and observed as follows in his comment on the case: "And the same applies in the case of a son who, having become his own man and a pater familias, approves by word or in fact the debt which he had incurred whilst his father was alive, and in the absence of the latter's consent, without it being in any way possible for him, or anyone eIse, to seek later on to contest that debt by invoking the exceptio senatus consulti Macedoniani,,?4 Voet, Commentarius ad Pandectas, re D. 14,6, No 2. D. 14,6, 16. See also Voet, Commentarius ad Pandectas, re D. 14,6, No 8. 24 Hamerster, Statuten, Ordonnantien, I, 10, 7 (p. 137): "En op dezelve wyze is het gelegen met een Zoon, die zyn eigen Man, Pater familias geworden zynde, met woorden of met 'er daad de schuld approbeert, die hy by 't leven van zyn Vader en buiten zyne toestemming hadt opgelecht, zonder dat hy, ofte ymant anders, zich naderhands daar tegens met Exceptio Senatus C. Maced. eenigszins behelpen mach." 22 23

40

Chapter 11: The adventures of a minor under the patria potestas

s.

The grant and ratification of an hypothec

Bocco van Feugen was a minor, and subject to patemal autbority, wben, in 1708, be concluded tbe agreement witb Van Nes and bis wife. That was still tbe position wben the agreement was registered on 9 May 1713 and be granted an bypotbec in favour of Van Nes. It is not surprising that Vos directed bis attack in tbe first place against tbe validity of tbe agreement of 1708. If tbat initial agreement between Van Feugen and Van Nes was void, tben tbe ancillary bypotbec was likewise void. 25 Catzius conceded tbat a minor wbo was, moreover, still subject to bis father's authority was unable to grant any valid bypotbec. All disposals by sucb a person were probibited. A minor could not encumber bis property. He bad entered into tbe agreement as a person wbo was alieni juris, witbout tbe consent of bis fatber. In sbort, only one conclusion was possible: botb the agreement of 1708 and tbe grant of tbe bypothec in 1713 were absolutely null and void. In tbat respect, tbere was no difference of opinion between Catzius and Vos. But wbat was tbe correct position in law as regards the grant of the bypotbec, if, baving attained bis majority and following the death of bis father, Bocco van Feugen bad ratified tbe agreement between bim and Mr and Mrs van Nes? A furtber complication in relation to tbe answer to that question lay in tbe fact tbat no consent bad been given by the Court of Friesland, a grietman or tbe town magistrate, as required under the local law of Friesland. That situation was contemplated by Roman law, in C. 5, 74, 3 pr and 1: If property belonging to minors (whether they were still subject to the authority of their curators or released from that authority by means of emancipation - venia aetatis) were alienated or pledged without a decree, and those minors, after attaining their majority, maintained a long silence conceming a claim in that regard, with the result that the invalid alienation or pledging becomes valid on account of that lengthy silence, we conclude that a specific length of time is fixed for such tacit ratification. And we thus prescribe the rule that the alienation or pledging is not annulled on account of the absence of the decree if the person who effected it or his heir refrains from asserting any claim for an uninterrupted period of five years, to be calculated from the completion of that person's minority, that is to say, the attainment of the age of five and twenty years; instead, the 2S Catzius' claim emanated not solely from the agreement of 20 May 1708, but also from that of 5 May 1719 (see above). As regards that part of the claim which went back to the 1719 agreement, Vos considered that he had a strong case: that contract was not registered prior to 5 May 1719, whereas the date of registration of the contract between Van Eysinga and Van Feugen was 27 February 1714. Van Eysinga's hypothec was also granted on the same day. The hypothec of Van Eysinga was undeniably of an earlier date than that of Van Nes, which was contingent on the claim arising from the 1719 agreement.

5. The grant and ratification of an hypothec

41

alienation or pledging is to be valid in the same way as if the prope~ had been alienated or pledged from the outset with the benefit of a legal decree. 6

It must be inferred from the wording of the Codex that it is applicable to cases in which a minor, having attained his majority, has (tacitly) ratified an alienation or pledge. Where, despite the ratification by the minor, there was no retroactive effect because of the absence of any consent (or "decree") on the part of the competent authority, the pledge or hypothec had nevertheless to be regarded as valid, just as if the piece of property had from the outset been pledged or hypothecated by virtue of a legal consent (i.e. a decree), provided, at any rate, that the minor had not contested its validity over an uninterrupted period of five years after attaining his majority. Huber regarded this rule of Roman law, providing for the ratification of a sale by a minor, as valid under Frisian law. In addition to providing for tacit ratification by effluxion of time, Frisian law enabled a minor who had attained his majority to "legalise" the sale by ratifying it expressly. Although it was perfectly dear from the context of Huber's account of Frisian law that the rule was also applicable in the case of the grant of an hypothec by a minor (as was likewise the position under Roman law), Vos seized upon a literal interpretation of Huber's analysis of Frisian law in order to defend hirnself. Vos attempted, first of all, to circumvent the application of C. 5, 74, 3 by insisting on the absolute nullity of the grant of the hypothec, since his esteemed opponent was entirely at one with hirn on the point. "The constitution of an hypothec by a minor is ipso jure null and void. There was no hypothec. Thus the hypothec can never have come into existence by virtue of having been approved. That sweet little morsel of approval cannot produce such a result (... )." By reason of the absolute nulIity, ratification could not have any effect, even where one of the unfulfilled criteria - such as the attaining of majority, as in the case in issue - was ultimately satisfied. Vos sought to bolster his arguments by relying on a fine Roman maxim which had retained its legal force in Friesland: that which is null and void by operation of law from the outset cannot acquire any legal effect by virtue of a later occurrence. 27 26 C. 5, 74, 3, pr and 1: Si quando sine decreto minorum, vel adhuc sub curatoribus constitutorum vel per veniam aetatis eorum curam excedentium, res alienantur vel supponuntur, et ad perfectam aetatem iidem minores provecti longo silentio querelam huiusmodi tradiderint, ut inutilis alienatio vel suppositio diuturno silentio roboretur, certum tempus ad talem confinnationem praefinitum esse censemus. Ideoque praecipimus, si per quinque continuos annos, post impletam minorem aetatem (id est viginti quinque annos) connumerandos, nihil conquestus est super tali alienatione vel suppositione is, qui eam fecit, vel heres eius, minime retractarl eam occasione praetermissionis decreti, sed sic tenere, quasi ab initio legitimo decreto fuisset res alienata vel supposita.

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Chapter 11: The adventures of a minor under the patria potestas

Catzius was, naturally, not particularly impressed by that argument advanced by Vos. The precise point was that, upon reaching his majority, Bocco van Feugen had expressly ratified the agreement, the hypothec and the registration. Moreover, five years had elapsed in the interim since the attainment of his majority. According to Catzius, the "alienation", originally void by operation of law, had been rendered lawful by the ratification. He cited two authorities in support of that legitimation argument. First, he relied on the wording of the rule laid down in C. 5, 74, 3 pr and 1 (set out above). Supplementing this, he submitted that it was not necessary to renew the grant of the hypothec in the deed of ratification. The grant of the hypothec had already been effected in the initial deed. The ratification operated to give legal effect to each and every act of disposal previously recorded in the initial deed. In support of the latter submission, he relied on C. 2,45, 1: Where, in the absence of fraud or deception, a division is effected between rninors, whether the same is comrnitted to writing or not, and they ratify it after attaining their majority, then the result must be that it remains valid. 28

He referred, second, to a judgment delivered by the Court of Friesland in 1722 in proceedings between Elida van der Leij and A. Bechius, in which the Court had likewise applied the Codex wording in question in a comparable case. Elida van der Leij had, whilst a minor, sold a piece of immoveable property and encumbered another piece of immoveable property by granting an hypothec on it without any "decree" or consent having been issued by the competent authority. After reaching the age of thirty, she sought to bring a revindicatio and to institute an actio hypothecaria against the person who had acquired the property in good faith (and who was entitled to rely on the praescriptio longissimi temporis or (thirty-year) prescription). The Court dismissed her claim. One of the arguments was that she had lost the right to institute the proceedings, since she had not brought proceedings at any time throughout the continuous period of five years after attaining her majority, and must therefore be regarded as having (tacitly) ratified the sale and the grant of the hypothec. 29

27 See D. 50, 17, 29 and D. 50, 17, 2lO: Et quod ipso jure nullum est ab initio, ex post facto non potest convalescere. 28 C. 2, 45, 1: Si inter minores quinque et viginti annis, vel scriptura interposita vel sine scriptura, facta sine dolo divisio est, eamque post legitimatum aetatem ratarn fecerint, manere integram debere convenit. 29 Case No 11099; the judgment in question was delivered on 19 May 1722. As to that case, see Z. Huber, Observationes rerum judicatarum, Obs. LXXXX (pp. 411-412). According to Bechius' counsel, further support for the argument that the actio hypothecaria had lapsed in that case was to be found in Huber, Heedendaegse Rechtsgeleertheyt, H, 49, 5: where a third party has been in possession of a piece of property within one and the same province for an uninterrupted period of

6. An initial ancillary issue: the exceptio non numeratae pecuniae

43

Vos was forced to display a certain amount of creativity in order to undermine Catzius' argument that a transaction which had initially been automatically void in law could still be legitimated by ratification. He denied that that rule held good in respect of every disposal. It was true that the grant of an hypothec was a species alienationis, but it did not in itself amount to an alienation. A person who granted an hypothec remained himself the owner and possessor of the land in question. By contrast, a person who genuinely alienated it divested himself of his ownership and pos session of it. Consequently, only a person who during his minority genuinely alienated his property, that is to say, sold and transferred it, was capable, upon attaining his majority, of ratifying that alienation. "But to seek to infer from this an argument quo ad hypothec[ajm, involving, be it noted, all its preferences in respect of the other creditors, ( ... ), is to go too far".30 It may be concluded, from the information thus far provided by the documents in the case, that Vos' arguments were not so persuasive. Hamerster explicitly agreed with Catzius' submissions: "It may briefly be stated in this connection that it is certainly tme that a minor may not, without a decree, alienate or grant an hypothec of his immoveable property, and that any such alienation or granting of an hypothec will be null and void. Yet, at the same time, it is also true in law to say that if, having reached his majority, he ratifies the alienation or hypothec, either expressly, as in the present case, or tacitly, by allowing five years to elapse since he came of age without raising any objection or challenge, then that has the effect of legitimating the one and/or the other transaction ab initio.,,31

One consequence of the view expressed by Hamerster is that the hypothec of Mr and Mrs van Nes (registered in 1713) was older than that of Van Eysinga (which was not registered until 1714).

6. An initial ancillary issue: the exceptio non numerattze pecuniae The 1730 and 1735 proceedings were not solely concemed with the legal consequences of minority and the question of Bocco van Feugen's subjection to patemal authority. Bocco's indebtedness to Van Eysinga in respect of the money loan was of course a further issue. The existence of that indebtedness had already been contested by Bocco himself on two occasions, in the proceedings dating from 1718 and 1724. In the 1730 and 1735 proceedings, Catzius made a fresh attempt to cast doubt on the existence of ten years, without that possession being disturbed or challenged, he is "free" from an actio hypothecaria. That was the situation in the present case. 30 He believed that support for this argument was to be found in C. 2,45, l. 31 Hamerster, Statuten, Ordonnantien, I, 10, 7.

44

Chapter 11: The adventures of a minor under the patria potestas

any agreement between hirn and Van Eysinga. Or, as Vos put it: "They are trying another track, saying that the obligation owed by the applicant for review is not a true obligation." Van Eysinga and Bocco had adopted the following positions. Bocco denied that he had in fact borrowed 3999 caroli florins from his aunt. The "obligation" of 1714 was set up solely in order to keep his creditors quiet, so that they should not institute legal proceedings and so that he should gain sufficient time in which to raise the money needed to pay off his debts. His aunt intended to promise not to take any action in respect of the agreement, and that promise was to have been expressly recorded in the deed (unfortunately, this did not happen). Van Eysinga and her heirs stated that those assertions by Bocco were fabrications and lies: "Lies which were truly so blatant that anyone who knew the said Miss van Eysinga would have said that she was incapable of engaging in such dirty tricks, ( ...)."

Under Roman law, a defence was available in the event that a stipulation was laid down with regard to a money loan and the funds were not really to be advanced at all: the exceptio non numeratae pecuniae. In the proceedings dating from 1724, 1730 and 1735, Van Feugen pleaded that defence. According to Roman law, the situation contemplated by the exception in question was as folIows. If a person declared (stipulated) in writing that he owed a specified sum of money, he could, in opposition to a claim for that money, raise the defence that it had not in fact been paid over to hirn. The burden of proof then shifted from the defendant to the plaintiff. After the expiry of two years, the defendant could no longer raise the objection that the sum in question had not been advanced to hirn. If the time-limit of two years had passed, the debtor was irrebuttably deemed to owe the money. But in order to prevent a creditor from being deprived, perhaps deceitfully, of the money due to hirn, for too long a time, the time-limit is shortened in Our Regulation (C. 4, 30, 14), with the consequence that such an exception may no longer subsist after a maximum of two years has elapsed.32

In almost aIl the provinces of the Republic, there was controversy as to whether the Roman rule of exceptio non numeratae pecuniae could apply without any curtailment. 33 It was conceded, in particular, that, even after two years, a person might be permitted to adduce evidence showing that he had not received the money. This was regarded as being in conformity with the law and with the principle of equity. In practice, however, the exception was seldom applied any longer, especiaIly since the debtor was re32 lost. 3, 21: (. .. ) sed ne creditores diutius possint suis pecuniis forsitan defraudari, per constitutionem nostram tempus coartatum est, ut ultra biennii metas huiusmodi exceptio minime extendatur; C. 4, 30, 14 pr. See, amongst the works of academic legal authors, R. Zimmermann, The Law of Obligations, pp. 93-94. 33 Cf. J. E. Spruit, Das Darlehen, in: Feenstra-Zimmermann, Das römisch-holländische Recht, pp. 296-297.

6. An initial ancillary issue: the exceptio non numeratae pecuniae

45

quired forthwith in law to furnish security for the advancement of the money, in the form of a nantissement or pledge. 34 But in Friesland, as Huber assured his readers, Roman law was fully applicable in that sphere. After two years had elapsed, it was no longer permissible to plead the exception that the money had not been received. Within those two years, the provision of security in the form of a pledge was prec1uded by the operation of the exceptio non numeratae pecuniae: "In our system, however, the provision of acharge is prec1uded by and founded on the exception, which still retains its full force and effect by virtue of Imperial law.,,35 The fact that the exception was still raised before, and accepted by, the Court of Friesland is illustrated by the litigation between Crispinus Stellingwerf and Jacob Willems. 36 . Further examples of this use of the exception are to be found in the 1724 proceedings between Vos and Van Feugen and the 1730 and 1735 proceedings between Vos and Catzius. In the first of those cases, Vos c1aimed, as his initial argument, that, in the 1714 deed, Bocco had waived his right to plead the exceptio non numeratae pecuniae. This was naturally denied by the latter. Vos then went on to state that - whether or not the money had been paid over - the two-year time-limit had long expired by 1718 (the date of the first set of proceedings) and certainly by 1724, so that, for those reasons alone, reliance on the exception had already ceased to be possible. As Vos put it: "in mutuo post biennium the law prescribes and lays down an obligation, the effect of which is that no plea may be advanced in opposition to it.,,37 Thus, after the expiry of the two-year period, any debtor could be constrained to pay his debt. Naturally, Bocco contended in turn that the reason why he had allowed the time-limit for raising the exceptio non numeratae pecuniae to expire lay in the fact that Van Eysinga had 34 Voet, Commentarius ad Pandectas, re D. 12, I, Nos 33 and 35. Article 2071 of the French Civil Code defines acharge as folIows: "un contrat par lequel un debiteur remet une chose a son creancier pour sfirete de la dette" (a contract by which a debtor hands something over to his creditor by way of security for the debt). As to the history of the legal concept of a pledge, see W. J. Zwalve, Hoofdstukken uit de Geschiedenis van het Europese Privaatrecht (I. Inleiding en Zakenrecht), Groningen, 1993, p. 366 et seq. 35 Huber, Heedendaegse Rechtsgeleertheyt, III, 20, 8-11; Van den Sande, Gewijsder Saecken, I, 8, 3. 36 Case No 11367: judgment of 22 February 1724. 37 See C. 4, 30, 8, 2. At the same time, Vos c1aimed that, as regards the exception, it was necessary to follow not Voet (Comrnentarius ad Pandectas, re D. 12, I, Nos 30-35) but Huber, Praelectiones juris civilis, re Inst. 3, 22, Nos 2 and 3 (UCaeterum, elapso biennio, debitor omnimodo, etiarnsi pupillus sit, debitum solvere compellitur, L. 8 C. 4, 30 hoc est, exceptionem pecuniae non numeratae opponere non potest"). In support of his argument, Vos referred at the same time to Vinnius, Selectarum juris quaestionum libri duo, Book I, chapter 41.

Chapter 11: The adventures of a minor under the patria potestas

46

stated that she would never make any claim under the agreement (what is known as a pactum de non petendo )?8 Otherwise, he would certainly have raised the exception in law. However, since deceit (dolus) was involved, with the aim of allowing a time-limit to expire, he was entitled, according to the Digest, to be restored to his original position?9 Vos fiercely disputed the contention that Van Eysinga had acted deceitfully. In the 1730 and 1735 proceedings, Vos likewise argued that Catzius had allowed the time-limit for raising the defence of exceptio non numeratae pecuniae to expire. Catzius again pleaded Van Eysinga's promise that she would not make any claim. He was able to prove that promise on the part of Van Eysinga by means of the statements of witnesses. Quite apart from this, the legal rule res inter alios acta vel judicata, alius non nocet nec prodest40 was applicable. In other words: what is agreed or decided between two parties cannot work to the advantage or disadvantage of a third party. Thus, Catzius considered that he was not bound by matters which had been agreed, or court judgments delivered, as between Bocco van Feugen and Van Eysinga (and her heirs). In his view, he was at liberty, by way of defence against the action brought by Van Eysinga (and her heirs), to plead that she would not make any claim. According to Vos, Van Feugen had nevertheless already sought to raise that defence, the court had rejected it, and the agreement between Van Feugen and Van Eysinga could not therefore be attacked and impaired on the ground of the same defence.

7. A second ancillary issue: dolus (deceit) In the 1724 proceedings, Bocco van Feugen brought a counterclaim. He sought an order restoring hirn to his original position (restitutio in integrum), on account of deceit or fraud (dolus). He cIaimed that the order made in 1718, requiring hirn to repay 3999 caroli florins, was wrong, since according to hirn Van Eysinga maintained that no moneys had been paid; moreover, she had promised that she would not institute proceedings on the basis of the feigned loan and, at the same time, that it would be recorded in the deed that Bocco owed her nothing. By bringing her claim in 1718, she had acted deceitfully or fraudulently.41 Under Roman law, fraud is defined as any cunning ruse, falsehood or trick used in order to mislead, deceive or cheat another. 42 A person who has suffered loss or damage as a result of fraud is entitled - if no other action is available - to bring a penal See De Groot, Inleidinge, III, 41, 9. D. 4, 3, 1, 6. 40 See C. 7, 56, 4 and C. 7, 60, 1. 41 See D. 4, 3, I et seq. The fact of bringing an action which gives rise to fraud is also known as dolus praesens. 38

39

7. A second ancillary issue: dolus (deceit)

47

action for damages (actio doli), and has at the same time (most probably) the right to be restored to his original position. Fraud could also give rise to a defence, the exceptio doli. That exception could likewise be pleaded if a person acted fraudulently by bringing proceedings for specific performance. Apart from that, transactions entered into under the influence of fraud were valid in law (as is the case under the law as it stands today).43 Huber stated, with regard to Frisian law, that a successful plea of fraud must invariably result in an order for restituti() in integrum where the dispute concems a contract concluded pursuant to "strict law". An action is to be given in favour of an heir "inasmuch as that may serve his interests".44 Bocco van Feugen had set his hopes on the actio doli, for he alleged that Van Eysinga was acting "dolo malo" (quite improperly) in asserting her claim when, "in truth", she knew that she had no cause of action. In addition, it was "weil known that it often happens that someone who is condemned by the Court, ultimately triumphs by claiming restitutio in integrum". By way of example, Bocco cited a judgment of the Court dated 20 December 1693. 45 Where a person had committed hirnself to be bound by a stipulation as a result of a ruse, he was entitled to plead exceptio doli46 or to bring an actio doli. It was common ground between the parties that an actio doli had to be brought within two years. 47 According to Bocco, the point in time at which Van Eysinga brought her claim (1718) constituted the moment at which the fraudulent conduct took place. The death of Van Eysinga presented Bocco with few problems. An actio doli could also be brought against the heir, inasmuch as the latter profi ted from the fraud. Bocco asserted that the bringing of such an action against an heir was not subject to a two-year time-limit but perpetuum ("perpetual", or un42 D. 4, 3, I, 2: ( ... ) itaque ipse (Labeo) sic definiit dolum malum esse omnem calliditatem fallaciam machinationem ad circumveniendum fallendum decipiendum alterum adhibitatam. As to dolus, see Zimmennann, The Law of Obligations, p. 662 et seq. 43 Article 3:44(1) of the Netherlands Civil Code provides that a transaction is voidable where it has come into existence as a result of threatening behaviour, deceit or undue influence. 44 Huber, Heedendaegse Rechtsgeleertheyt, IV, 39, 5 and 6. 45 Given in proceedings between Johan Ientjes and Ysbrandt Oosterholt. No lawyers' files relating to that case are to be found in the Court's archives. 46 D. 45, 1,36. 47 C. 2, 20, 8. However, according to C. H. Trotz, there existed some doubt in Friesland concerning the time-limit. The Court of Friesland frequently proceeded on the basis of a time-limit of two years, but also on the basis of four years (with reference to C. 2, 52, 7 pr) and sometimes even forty years. See C. H. Trotz, Dictata ad jus patrium secundum ordinem Digestorum, p. 52 (UBA, m' F 34). See also Huber, Praelectiones juris civilis, re D. 4, 3, No 9.

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Chapter II: The adventures of a minor under the patria potestas

limited in time), since an heir was not permitted to profit from another person's loss.48 Naturally, Van Eysinga vigorously denied that she had acted deceitfully. Moreover, she pointed out that the right, if any, to seek restitutio in integrum on the ground of dolus was "extinguished", having lapsed. The timelimit of two years had expired a long time previously. "If, quod non, it were true that Lucia van Eysinga had never paid over the money in question, and that the obligation was entered into solely in order to ward off putative creditors, the dolus would indeed lie in ipso contractu, having been committed by mutual consent with a view to depriving honest people of their rightful due, and it would consequently be necessary to go back to the date on which the putative agreement imposed the obligation on Miss Eysinga, which was 21 February 1714." Bocco van Feugen was unable to convince the Court: his counterclaim was dismissed.

8. Conclusion To revert to the main proceedings: the Court ruled, in its judicial review, in favour of Vos. Hamerster did not agree with that judgment. He wrote that he found Catzius' arguments so persuasive that he would not have had a moment's hesitation in finding in the latter's favour, and would have "held the hypothec, and also the registration thereof, to have been legally valid from the outset". However, we can only hazard a guess as to the Court's reasons for finding as it did in the review proceedings. The ensign Bocco van Feugen has left his mark on Roman-Frisian law. What is striking about the case, as revealed by the documents in the proceedings, is the strict observance of Roman law with regard to matters which were no longer regarded as authoritative in the other provinces of the Republic (patria potestas), but which, in Friesland, were deterrnined in accordance with local (indigenous) law (exceptio non numeratae pecuniae). This is a phenomenon which we shall encounter ever more frequently in later chapters of this book. 48 D. 4, 3, 26--30; D. 4, 3, 28: Sed utique in heredem perpetuo dabitur, quia non debet lucrari ex alieno damno. Cui conveniens est, ut et in ipso qui dolo commiserit in id quod locupletior esset perpetuo danda sit in factum actio ("But the plea may of course be raised without any time-limit against an heir, since he may not profit from another person's loss. This is borne out by the fact that an action tailored to the facts must also vest, without any time-limit, as against a person who has himself acted deceitfully, for the purposes of clairning the amount by which that person has been enriched"). See H. Cannegieter, Dictata de differentiis juris Romani et Frisici, re D. 4, 3, 26 (PBL, M.S. 1085).

8. Conclusion

49

By contrast with the position under Roman and Roman-Frisian law, the transactions entered into by Bocco during his minority (such as the money loan) would be voidable, not void, under modem Netherlands law. 49 Thus, under the Netherlands Civil Code as it exists today, ratification has no role to play: Bocco's transactions would now be valid. 50 Under the modem legal system, in a case such as his, confirmation of the transaction would be possible: that is to say, an (indirect) waiver of the right to plead voidability, even by way of a defence. This is not something which Bocco hirnself could have done during his minority; it would have had to be done by his legal representatives. 51 The grant of an hypothec by a minor is scarce\y imaginable in our modem (notarial) practice. Under the law as it applies today, Lucia van Eysinga's conduct vis-a-vis Bocco as regards the contested money loan may perhaps be seen as a vitiated consent, and suggests undue influence rather than fraud. 52 In that case, the implication would necessarily have to be that she had had dealings with Bocco van Feugen whilst knowing that, owing to special circumstances (his being left to his own devices by his father following the death of his mother, and "pounced upon" by creditors), he was in a weak position. A flood of legal arguments arose in the litigation conceming Bocco. Yet the lawyers acting for both parties did not hesitate, in the last-instance proceedings, to raise pleas relating to equity. For, as it is said: "jurisprudence is founded upon reason and equity." Naturally, the lawyers were able to conceive of no greater unreasonableness or unfaimess than a wrong done to their respective c1ients by operation of law. Bocco's lawyer, in particular, had recourse to every argument imaginable. He placed "such vigorous emphasis on the concept of bonum et aequum" that his opponent was almost unable to contain his indignation, "since all of the facts pleaded by hirn are nothing but falsehoods and untrue suppositions", emanating from the mind and fantasies of Bocco. Unfortunately, it is impossible to tell from the Court's decision(s) whether all those references to equity carried much weight.

Article 1:32(2) of the Netherlands Civil Code. Article 3:58 of the Netherlands Civil Code applies only to cases of nullity. For the rest, according to the Parliamentary annals, ratification has retroactive force, although that view is disputed in academic legalliterature - see Hijma 1998 (T & C BW), Art. 3:58 BW, note 4. For a comprehensive analysis of this point in accordance with Roman law, see G. H. Potjewijd, Beschikkingsbevoegheid, bekrachting en convalescentie, een romanistische studie, Deventer, 1998. 51 Article 3:55 of the Netherlands Civil Code. See Hijma 1998 (T & C BW), Art. 3:55 BW, note l. 52 Article 3:44(3) and (4). See Hijma (T & C BW), Art. 3:44, notes 3 and 6. 49

50

4 LokinIJansea/BnoDdsma

50

Chapter 11: The adventures of a minor under the patria potestas

To conclude: it is striking to note the advocates' assumption that the Court would attach authority to its own judgments in comparable cases. On at least two occasions in the proceedings, they relied on an earlier, unpublished judgment. In both cases, such reliance involved references to the names of the parties concemed and the date of the judgment in question. It became clearly apparent, from the documents which were exchanged and the sources cited, that the practitioners of Roman-Frisian law did not hesitate to go their own way, and did not allow themselves to be greatly influenced by the interpretation given to Roman law in the other provinces of the Republic, instead attaching all the more authority to the Roman law of lustinian himself.

Chapter l/l

The task of a meticulous administrator: Perils surrounding an investment not made 1 To some individuals, it is inconceivable that they, of all people, should find themselves involved in legal proceedings. They consider that they have made extraordinary efforts to promote another person' s interests, and are totally convinced that they have done a good job in that regard. Instead of receiving sweet words of gratitude, however, they are given a bitter pill to swallow: a writ of summons. Such circumstances arose in the case with which this chapter is primarily concemed. The administrators against whom the action was brought were ne ver able to come to terms with the fact that they had been sued in court proceedings: "They are sore afflicted by having to face proceedings conceming an administration which has given them nothing but trouble, without any profit to themselves." Their indignation was all the greater since they were positively convinced that the plaintiffs had scarcely a leg to stand on in law. "For [the case] does not amount to enough to make it worth going to the trouble of pleading the claim, save as regards the interests in issue. Besides, the strict letter of the law, with which they profess as curators to be bound to comply, is plainly against them."

1. The administration of property Yvo Bocco Feijens, Lubbertus Lijcklama a Nieholt and Adolp Cop were the executors appointed by the will of Rinnert Baertes Nieholt deceased to administer his estate. They were sued in law with regard to their administration by the curators of Nieholt's heirs, Elias Wigeri and Claes Beerents? The question whether the administrators had meticulously discharged their task was determined - as Huber wrote - in accordance with the rules applyCase No 14324: judgment of 20 December 1754. In these proceedings, we encounter two future professors at Franeker. Feijens' counsel was Bavius Voorda (1729-1799), professor at Franeker from 1755 to 1765 and at Leyden from 1765 to 1788 and from 1795 to 1799. The curator of one of the heirs was the previously mentioned Elias Wigeri (1731-1791), professor at Franeker from 1755 to 1780. Voorda and Wigeri together succeeded C. H. Trotz (17031773), who had moved to Utrecht. 1

2

4'

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Chapter III: The task of a meticulous administrator

ing to the fulfilment of the duties of guardians and curators in their capacity as promoters of the interests of the minors entrusted to their care. "Such (guardians) are also the persons appointed by will to look after certain items of property bequeathed to minors or other persons; together with the executors of wills, they have the task either of implementing the wishes of the testator over a short period of time and in one fell swoop, or of administering the property on an on-going basis over the longer term.")

An administrator was appointed in the same way as a guardian or curator. Van den Sande and Huber emphasised that no person could be obliged by will, against his wishes, to undertake the administration of specific property. To that extent, Roman-Frisian private law - unlike Roman-Dutch law - drew a distinction between guardianship, on the one hand, and, on the other hand, the performance of the tasks of an administrator. 4 Roman-Frisian law and Roman-Dutch law both diverged from Roman law, which did not in principle recognise any guardianship or curatorship in respect of any specific constituent elements of an estate. 5 The documents in the lawyers' files in this case speak by turns of guardians, curators and administrators when referring to the performance of the latter's duties. Under Roman law, the appointment of a guardian (tutor) was effected by will. If no tutor testamentarius was appointed, a legal guardianship was vested by operation of law in the "dosest blood relations". Where no such relations existed, the authorities appointed a guardian; a curator was appointed in the same way as the designation of a guardian appointed by the authorities.6 The task of guardians and curators was to administer the property of the minors under their care. Such administration involved, inter alia, the obligation to seil perishable goods, to invest 'ready money' in immoveable property or otherwise to lend it out in return for the payment of interest. 7 A guardian was under a duty to perform the administration in ac3 Huber, Heedendaegse Rechtsgeleertheyt, I, 15, 35. According to I, 14, 33, a guardian who was appointed to look after certain items of property or appointed by the testator in his will was not a guardian but an administrator. In the proceedings between Wigeri and others and Feijens and others, the administration was treated as analogous to a trusteeship. See, however, P. W. van der Ploeg, Testamentair bewind, Amsterdam, 1945, p. 25. Thus an administrator did not occupy the position of a testamentary executor. 4 Van den Sande, Gewijsder Saecken, 11, 9, 11; De Groot, Inleidinge, I, 7, 16; Voet, Commentarius ad Pandectas, re D. 24, 2, No 5 and D. 24, 7, No 7. Under Roman-Dutch law, an administrator was assimilated to a guardian. See Van der Ploeg, Testamentair bewind, pp. 24 and 27. The provisions of the law on guardianship were direct1y applicable. 5 D. 26, 2, 12 and Inst. I, 14,4. 6 Gaius, I, 149; Gaius, I, 155; Gaius, I, 185; Inst. 1,23, l. Moreover, a curator, like a tutor, could be designated in the will itself (D. 26, 7, 3, 5). 7 D. 26, 7, 7, I; D. 26, 7, 5 pr and D. 26, 7, 3, 2; D. 26, 7, 7,4.

2. A closer look at the case of Wigeri and Beerents v Feijens and others

53

cordance with the precepts of bona fides. or "good faith". If he failed to discharge that duty, he could be rendered liable by means of an actio tutelae. The same obligations applied to a curator; however, the applicable actio was of a different kind. 8 Like Roman law, Frisian law recognised a difference between tutores (having responsibility for boys aged up to 14 and girls aged up to 12) and curatores (having responsibility for adolescents of both sexes up to the age of 25). Tutores were appointed by will, by law or by act of the authorities. A tutor became a curator once the minor in his charge reached the prescribed age of 14 or 12, as the case might be. He exercised, by virtue of the tacit consent of the minor, the same powers as a tutor. 9 Tutores and curatores were obliged to look after maUers in the same way as "a pater familias, exercising all due care and diligence, is supposed and accustomed to look after his own affairs".lo That obligation carried with it a duty properly to invest "ready money", in so far as it was not needed for the maintenance of the minor, or to use it "for the purchase of fixed assets, or in such other way as to eam interest". In the event of default on their part, they were personally liable. 11 Roman-Dutch law imposed a comparable rule. 12

2. A closer look at the case of Wigeri and Beerents v Feijens and others Feijens and the other testamentary administrators of Nieholt's estate were faced with a relatively massive task, inc\uding inter alia the collection of rents in respect of a great many tenanted estates. The tenant farmers complained that they had no money. The administrators listened sympathetically to their woes and allowed the arrears in some cases to mount up over periods of several years. The curators, Wigeri and Beerents, pointed out, however, that the administrators were required by law, if need be, to demand payment of the arrears of rent. 13 Money had been received from 8 According to classic Roman law, it was an actio negotiorum gestorum. lustinian created a special action, known as an actio curationis. 9 Huber, Heedendaegse Rechtsgeleertheyt, I, 14, 7 and I, 15, 19. 10 Huber, Heedendaegse Rechtsgeleertheyt, I, 18, 17. 11 Huber, Heedendaegse Rechtsgeleertheyt, I, 18, 21. Investment in interest-bearing loans required the exercise of a greater degree of care than the purchase of immoveable property (I, 18,22 and 23). 12 De Groot, Inleidinge, I, 9, 10. See also C. H. Trotz, Ad collegium practicum, p. 228 et seq. (UBA, III* F 33). \3 They referred to C. 5, 37, 18. See also Huber, Heedendaegse Rechtsgeleertheyt, I, 18, 18.

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Chapter III: The task of a meticulous administrator

other farmers. That money had not been invested by the administrators; instead, they held it "on current account". The curators naturally called for payment of the arrears to be demanded, and, in addition, for interest to be claimed on the sums in question. It is not proposed to give any further consideration here to that part of the claim or to the wrangling conceming the questions of fact as to whether the documents submitted to the Court were sufficient for the fumishing of an account and whether the "accounts" had been drawn up in a proper manner.

The administrators were additionally faced with the concern over the ready money which they were holding in the form of cash. They were also holding that money between them. Their plan was to invest that money, and the sums which they had received from the farmers, in immoveable property. In his will, the testator had specified that all the money was to be used "for the purchase of fixed assets". The reason why the money had not yet been expended in accordance with the last will of the testator was that no suitable immoveable property had (yet) been found. Tbe curators dispu ted the suggestion that the administrators were entitled to hold on to the money for such a long time without investing it. They were not impressed by the administrators' attempts to buy parcels of land. They criticised what they regarded as the lax way in which matters had been handled. The dispute between the parties was particularly intense as regards the question whether the administrators were entitled to hold on to the money, without its earning any interest, until such time as they had found suitable immoveable property in which to invest it and, if so, as to the length of time for which it could be held. The curators took the view that the administrators should have invested the money which they had received by way of rent after two months at the very latest, and the money held as cash within six months. Since that had not happened, they claimed interest on the non-invested sums. The fact that the testator had wanted the money to be invested "in fixed assets" did not justify its being held by the administrators without eaming any interest. In accordance with the Landsordonnantie of 1723 14, the question as to what a trustee or administrator was required to do with the money was governed by the "old imperial law", and not by the "new" lustinianic law contained in the Novellae. According to the law as set out in the Novellae, a trustee was not obliged to purchase immoveable property or to lend out money in return for interest. 15 He discharged his duty by retaining the money in his possession. That provision appeared to constitute a clear argument in favour of the administrators of the estate, but it was not invoked by them. Tbey were up against various strong authorities in Friesland and 14 15

Article 11, Title 7, Book I. Nov. 72, 6 and 7.

3. The task of a meticulous administrator

55

Holland, who opined that the "new" lustinianic law had fallen into desuetude, and that, consequently, that law had (in Friesland) been discarded in the Landsordonnantie. 16 This point was naturally raised by the curators, Wigeri and Beerents. They knew that they had Huber on their side. Huber had declared that the law as laid down in the Digest was regarded as being more in accord with "contemporary customs" and "correct reasoning" than the "new" law of lustinian. Thus, the prevailing doctrine on this point was to be found in the Digest. 17

3. The task of a meticulous administrator Wigeri and Beerents based their claim on a number of texts contained in the Digest; in their view, those texts were so c1ear and transparent that there could not really be any dispute as to the correctness of their assertions. According to them, it was quite apparent, from D. 26, 7, 7, 9 and D. 26, 7, 58, 3 alone,18 that a trustee was liable if he could have lent out money on an interest-earning basis but "simply held on to it". The important Digest text contained in D. 26, 7, 58, 3 is in the following terms: After designating as his he ir his son, who was still a minor, someone bequeathed 2000 gold pieces to his disinherited daughter, and appointed the same person to act as guardian for both of them. The question that arises is whether the guardians are !iable to pay the girl interest from the day on which they could have separated the 2000 gold pieces from the remainder of the estate in order to lend that money out in return for interest. [Scaevola] answered that they were so !iable.

16 For example, Van den Sande, Gewijsder Saecken, 11, 9,13; Hamerster, Statuten, Ordonnantien, I, 7, 11; Voet, Commentarius ad Pandectas, re D. 24, 7, No 10 (with numerous references); J. Voorda, Differentiae iuris Romani et Belgici, Leyden, 1769, Lib. XXVI, Tit. 7, (Ius Romanum: Tutor iure novo (Nov. 72, 5, 6 and 7) satisfacit, si pecuniam pupillarum caute reponat et serveret; lus Belgicum: Hodie vel foenori collocare pecuniam pupilli debet). The Court of Friesland had dec\ined to apply the Novellae in its judgment in the proceedings between Gerrit Jenckes (curator of Jetze Doedes) and Dioere Goffes of 20 December 1628. 17 Huber, Prl;lelectiones juris civilis, re D. 24, 7, No 6. The use of the term "new" law speaks volumes: the Roman jurists associated new law with bad law, an association wh ich the "Romanised" Frisian jurists were only too happy to adopt. See W. J. Zwalve, Keizers, soldaten en juristen. Vijf Romeinse juridische biografieen, Deventer, 1998, p. 41 (note 81). 18 D. 26, 7, 7, 9: Residuarum autem summarum pupillares usuras pendi oportet ("Interest is payable on sums held by trustees which are not being used for other purposes"). D. 26, 7, 58, 3: Pupillo herede instituto filiae exheredatae duo mi!ia nummorum aureorum legavit eosdemque tutores utrisque dedit: quaesitum est, an ex eo die, quo duo milia potuerunt a substantia hereditatis et in nomina collocare neglexerint, usurarum nomine pupillae tutelae iudicio teneantur. respondit teneri.

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Chapter III: The task of a meticulous administrator

According to Wigeri and Beerents, any other standpoint would be a "complete paradox". Interest was payable on sums held by trustees which were not being used for other purposes. That interest was not payable immediately; it was necessary to allow for aperiod of two months in which to collect and invest the money.19 If a trustee who had set aside money with a view to purchasing immoveable property subsequently failed to make that purchase, then an obligation to pay interest consequently arose. In the case of money held in cash, the obligation to pay interest did not take effect until after six months had elapsed?O The annual rate of interest payable after the expiry of the periods specified amounted to "five in every hundred". Accordingly, Wigeri and Beerents put forward at some length the argument that, in practice, immoveable property was invariably sold on the basis that completion of the sale was to take place at a later date. For that reason, a trustee had ample time in which to call in any moneys lent out by hirn. Altematively, if the administrators found it problematic to lend out money, they should have purchased "landschapsobligaties" [govemment bonds]. These were so easily marketable and inflation-proof that they could be resold without difficulty if money were needed. In order to lend force to their arguments, Wigeri and Beerents stressed that their statement of the law was in line with the writings of Huber and Voet. 21 Moreover, they were supported by the authority of the Court of Friesland itself. That court had "always and rightly been accustomed" to acknowledge the existence of an obligation to pay interest, as was apparent from a judgment which had been delivered in a comparable case only a few years earlier: the case of Heert Piers and Jelle Geerts against Taeco Sapes and Wytze Minderts Lipstra. 22 Sapes and Lipstra had received money inter alia from the sale of a house, and had collected a debt which was due. For many years, they did nothing with the amounts received, and judgment was accordingly given against them. The dispute in issue was further concemed, inter alia, with the question whether the curators were entitled to any remuneration for their activities. That question was answered in the negative by their opponents, who argued that guardianship or curatorship was a munus publicum and that there could thus be no question of entitlement to any fee. That view was on all fours with the opinions expressed by Van den Sande (11, 9, 11).

D. 26, 7, 7,11. D. 26, 7, 3, 3, C. 5, 37, 24, altemative\y D. 26, 7, 15. 21 Huber, Praelectiones juris civilis, re D. 24, 7, No 6; Voet, Commentarius ad Pandectas, re D. 24, 7, No 9. 22 Case No 14164: judgment of 20 December 1751. 19

20

3. The task of a meticulous administrator

57

Lastly, Wigeri and Beerents contested the effectiveness of one of the strong authorities relied on by the administrators, namely D. 26, 7, 3, 2, whieh imposed on (honorary) trustees the obligation to ensure that money entrusted to their eare was spent on the purehase of real property: Where money is available to be deposited, they must ensure that it is deposited with a view to the purchase of land. Any person who considers that honorary trustees are under no responsibility is making a fool of himself: for they are responsible in accordance with the explanation given above?3

It eould not be inferred from the words "money entrusted to their eare" (pecuniam deponere) that a trustee was entitled simply to hold on to money, as Feijens and the other administrators had done. To the Romans, the term in question meant deponere apud acta, signifying the depositing of funds with the proper authorities. Wigeri and Beerents based that interpretation on Groenewegen van der Made. 24 "What is the meaning of this, if deponere pecuniam means to hold on to the money, and to store it up with a view to the purchase of fixed assets? For one thing, that attempt at exculpation runs counter to the law as we know it, which provides that a trustee is obliged to pay interest on money that he is simply holding on to. After all, on that basis, trustees may always say that they had set it aside for the purchase of fixed assets. And when asked why they did not make any such purchase, they may reply, as does the opposing side in this case, that they found no suitable occasion for doing so."

Voorda, who appeared as eounsel for the administrators of the property (Feijens ete.), went to exeeptional trouble to immerse himse\f in "the old imperial law" and thereby to diseover arguments whieh might free his clients from their obligation to pay interest. He submitted that, "by bidding at various times for divers pieees of land", they had ultimately done enough to demonstrate their willingness fully to eomply with the express direetion given by the testator, Rinnert Baertes Nieholt. It was eommon ground, and thus aeknowledged by the opposing party, that Nieholt wished all the money already available, and all funds which might beeome available in D. 26, 7, 3, 2: (00') et si pecunia sit, quae deponi possit, curare, ut deponatur praediorum comparationem: blandiuntur enim sibi, qui putant honorarios tutores ornnino non teneri: tenentur enim secundum ea quae supra ostendimus. 24 Groenewegen van der Made, Oe legibus abrogatis, D. 26, 7 re L. 12 Si tutor pecuniam pupillarem credere non potuit, quod non erat, cui crederet, pupillo vacabit, scilicet si tutor pecuniam apud acta deposuerit ("Where a trustee has been unable to lend out money held for his ward, because there was no-one available to lend it to, he will have discharged the obligations owed by hirn to the ward"), that is to say if the trustee has deposited the money with the proper authorities. NB. Cf. Neostadius, Decisiones Suprerni Senatus no 51, towards the end. In this report it is stated that money should be deposited with the upper guardians such as the Weesmeesters. See the English translation of Groenewegen's treatise by B. Beinard, Johannesburg 1975 volume 2, p. 186. 23

a~

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Chapter III: The task of a meticulous administrator

the course of time, to be invested in immoveable property. As a matter of law, therefore, it was c1ear that the administrators had simply carried out, to the best of their knowledge, the testator's wishes as set out in his will. Should they now be "punished" for this? The fact that the curators, Wigeri and Beerents, used the word "paradox" when submitting that Feijens and his fellow executors "simply" held on to the money led Voorda to conc1ude that the administrators were in the right, and that the curators were in fact, in so many words, conceding this. For what, after all, are paradoxes? They are, as Cicero put it, "quae quia sunt admirabilia, contraque opinionem omnium, ( ... ) longeque verissima": assertions which, whilst absurd and contrary to universal opinion, are nevertheless c10sest by far to the truth. 25 The administrators relied primarilyon D. 26, 7, 3, 2 and D. 26, 7, 5 pr?6 The first of those texts has already been cited above; the second is in the following terms: Yet there is occasion for money to be deposited only in order that if such a sum can be scraped together, that is to say, gathered, a field can be bought; for if it can plainly be shown that the tutelage is so poor that a farm cannot be bought for the boy with the sum amassed, the obligation to deposit money ceases to apply.

According to the administrators, it followed irrefutably from the two passages from the Digest cited above that, if money were available for deposit, it would have to be deposited for the purposes of purchasing real property. Those texts also convincingly demonstrated that trustees or administrators could simply hold on to money without being bound to pay any interest. Only if it could be plainly shown that no piece of land could be purchased with the money did the duty to deposit it cease to apply. "One thing is certain, however: the purchase of fixed assets is highly regarded in law, and preferred and prized far above the use of money to earn interest."27 Thus, the inference to be drawn from those texts was that Feijens and his fellow executors were not merely empowered but in fact obliged to hold on to the money until the sum in question was sufficiently great to enable fixed assets to be purchased. As it was, the amount which they were hold25 M. T. Cicero, Paradoxa Stoicorum, prooemium (published as a Loeb publication and, recently, in the Sammlung Tusculum). See M. V. Ronnick, Cicero's "Paradoxa Stoicorum": A Commentary, an Interpretation and a Study of its Influence, Frankfurt am Main (etc.), 1991. 26 As regards D. 26, 7, 3, 2, see footnote 23. D. 26, 7, 5 pr: Ita autem depositioni pecuniarum locus est, si ea summa corradi, id est colligi possit, ut comparari ager possit: si enim tarn exiguam esse tutelam facile probatur, ut ex nummo refecto praedium puero comparari non possit, deposito cessat. 27 The administrators found support for that view in Huber, Praelectiones juris civilis, re D. 24, 7, No 6.

3. The task of a meticulous administrator

59

ing was enough for the acquisition of real property, but on each occasion they missed the boat. The administrators denied that they were "simply" holding on to the money: they were wholly engaged in looking for a suitable investment in immoveable property. Had the curators' assertions been true, they would never have been in a position to acquire fixed assets. For that reason, there was no merit in the curators' reliance on D. 26, 7, 58, 3, in which the jurist Scaevola considered trustees to be liable in a lawsuit because they had not invested money in such a way as to earn interest at the point in time at which they could and should have separated 2000 gold pieces from the rest of the estate. Moreover, there were countless "difficulties" involved in the lending of money in return for interest. Suitable borrowers were not that easy to find. In support of their arguments, Feijens and his fellow executors cited Noodt, who correctly emphasized, in their view, the fact that, where trustees or administrators found and acquired money, they were obliged - if it amounted to a sufficient sum - to acquire real property and, moreover, to place the money to be used for that purpose on deposit. In such circumstances, they could indeed be required to pay interest, unless it was no fault of theirs that they had been unable to use it for the acquisition of real property. If the money were insufficient for such a purehase, then it had to be invested in such a way as to earn interest. 28 Noodt, interpreting the law in that way, and "speaking of the investment of money on an interest-bearing basis and the purchase of immoveable assets and the reconciliation of those transactions, (held) it to be a recognised principle that laws should not be applied in such a way as to bring them into conflict with each other, as on a battlefield, but one should use one law to explain another."

Support for that interpretation by Noodt was equally to be found in law: if a guardian had not been able to lend out his ward's money, because there was no-one to lend it to, he had discharged the duty owed by hirn to his ward?9 Tbe administrators were of the view that it was not their fault that they had hitherto been unable to purehase any immoveable property: they had done their best. It was not a simple matter to find a suitable person to whom to lend money. Moreover, it was apparent from D. 26, 7, 7, 3 that an admonitio and denunciatio were required as a condition precedent to the bringing of a claim against a trustee for dereliction of his duty to pure hase immoveable assets and for the payment of interest. Tbe curators, Wigeri and Beerents, had omitted to take either of those steps. 28 G. Noodt, Operum Omnium tomus 11, Leyden, 1735, re D. 26, 7 (passage beginning with the word confecto). 29 D. 26, 7, 12,4 and C. 5, 37, 3.

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Chapter III: The task of a meticulous administrator

The curators' suggestion conceming the way in which Feijens and his fellow executors should in practical terms have invested the money was, in the latter's view, wholly misguided. "This is, in truth, completely wide of the mark. It is a well-known fact that many, if not most, fixed assets are sold on condition that an instalment is to be paid in ready cash. Moreover, the circumstances surrounding the price and credit terms of government bonds in 1746 and thereafter are common knowledge. It would be tantamount to acting contrary to the testator' s orders to require the administrators to purchase such govemment bonds."

The administrators further argued that the judgment in the case of Piers and Geerts v Sapes and Lipstra could not serve as a precedent for the purposes of the present dispute. In that case, the testator had not given any express instruction in his will to the effect that immoveable assets were to be purchased. Moreover, the administrators in that case had "simply allowed the money to stand idle, without earning any interest", and had been unable to provide any reasons for this in the proceedings. Thus, they had been correctly ordered to pay interest. 30 Finally, Feijens and his fellow executors denied that the words deponere pecuniam in D. 26, 7, 3, 2 meant deponere apud acta. The additional requirement represented by the word "acta" did not appear in any relevant legislative provision. The applicable passages all spoke merely of deponere pecuniam. 31 According to the law itself, the contrary was true: the term deponere c\early meant nothing more than tuto in loco collocare, or to store and keep the money in a safe place. 32 "But does this in fact mean apud acta collocare? By no means! Yet it comes as no surprise that such a gloss is placed on the term by Groenewegen and other Dutch practitioners, who, in the name of interpretation, frequently alter the written laws by adding to or distorting this one or that."

Just as the legal practitioners of the province of Holland bad woefully misinterpreted it, Cujas bad correctly determined tbe meaning of deponere pecuniam. For a guardian (and the same applies to a curator) was required to safeguard the money of his ward, that is to say, keep it in a safe place in a strong-box or a repository; conversely, he was liable if he failed to keep the money in a safe place. 33 30 On the basis of D. 26, 7, 15: if a trustee fails within the first six months to invest his ward's money, he will be personally liable for the money owed and/or as the case may be - for interest on the money which he has failed to invest. 31 In addition to citing D. 26, 7, 3, 2, the administrators also referred to D. 26, 7, 5 pr, D. 26, 7, 7, 3, 4 and 7 and C. 5, 37, 4 and 5. 32 Cf. C. 5, 37, 24, which spoke of Aurum et argentum in tutissima custodia collocent.

4. Conclusion

61

Cujas thus interpreted the contested reference as meaning "to keep in a safe place, in a strong-box or a repository". The fact that a depositio apud acta of money was a totally unknown concept in law could also be inferred from other legal texts; it was "as clear as daylight" that the contrary was in fact the position. 34 Thus, in the administrators' view, the conclusion to be drawn was unequivocal: the term depositio pecuniae ad praediorum comparationem in D. 26, 7, 5 pr can and must be interpreted as meaning nothing other than simple preservation, without any restriction. According to the administrators, a different construction such as that advocated by the curators was quite absurd, since the deposit of money with the proper authorities would not produce any interest either. "Wh at would that have availed the respondents? Nothing whatever; on the contrary, it would have resulted in the additional obligation to pay deposit fees, which would, in truth, have appeared most strange to them. As it is, there is no point in wasting any time on this, since not the slightest reference to, or mention of, such a depositio apud acta has been found in law, and the entire structure of the other side's arguments is thus totally heterodox."

In short: according to the administrators, they were not obliged to invest the money so as to eam interest; nor were they under any duty to pay interest. They were entitled to hold on to the money until such time as a good opportunity presented itself for the purchase of immoveable property.

4. Conclusion The Court of Friesland ordered Feijens and his fellow administrators to pay interest, on the basis that the prescribed time-limits were to be taken into account. Having regard to Huber's ac count of Roman-Frisian law, the judgment cannot be regarded as surprising. If it proves impossible to find any immoveable property within prescribed time-limits, the money must be invested so as to earn interest. Feijens and his fellow administrators failed to fulfil that obligation. The administrators were required to pay interest out of their own pockets, however inequitable they might findthis. The case is of interest for a number of reasons. First of all, it involved aderogation 33 Cujacius, Tomus Nonus vel Quintus Operum postumorum, Naples, 1758, In Librum V Codicis recitationes solemnes, re Tit. xxxvn (p. 570, right-hand colurnn). Nam debet tutor (& idem est in curatore) pecuniam pupillarem deponere, id est, tuto loco collocare in arcam, vel horreum, alioquin culparetur si eam deponeret in loco non tuto. 34 See, for example, D. 27, 2, 3, 4. It is apparent from the words used, "quae sit penes se summa", that a guardian is required to deliver up the amount that "is in his custody".

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from the law as set out in the Novellae. Both in Holland and in Friesland, Nov. 72 appeared to have fallen into disuse, and even to have become contrary to "proper reasoning". Thus the "old" law, as laid down in the Digest, was applicable. Second, the arguments advanced are noteworthy. In relying on Huber and Voet, counsel fOT Wigeri and Beerents aligned themselves with the tradition of usus modernus. Voorda, on the other hand, was forced, in presenting his arguments, to rely on the views expressed by representatives of the "elegant" school of thought: Cujas and Noodt. In their works, those two jurists were far more circumspect in their approach to the question whether Nov. 27 had fallen into desuetude. Voorda also dissociated hirnself from the legal practitioners of Holland, who in his view stretched the ambit of (Roman) law beyond the limits of the applicable legislation. In launching that attack on their position, he remained on the beaten track of Frisian law. Third, it is interesting to note the reference to an earlier judgment of the Court of Friesland. Further similar instances of judgments of the Court of Friesland acting as precedents will be encountered in sub sequent chapters of this book. The legal effect of the rules goveming the administration of wills, as formulated in Roman-Dutch law, was laid down in the Netherlands Civil Code of 1838. The Roman-Dutch rules differed only in one respect from RomanFrisian law as the latter was applied in day-to-day practice. 35 Neither the c1assic Roman law nor the (French) Code Civil was taken as a model by the Netherlands legislature of 1838. No specific rules relating to testamentary administration are to be found in either c1assical Roman or French law. It is in Artic1e 910 of the Code Napoleon, as drafted for the Kingdom of Holland in 1809, that the evocation of the ancient indigenous laws finds its strongest expression: an administrator is duty-bound to manage the property and effects entrusted to his care, and to pay the profits eamed therefrom over to the persons entitled thereto: his powers, responsibilities and remuneration are placed on the same footing as those of guardians and curators. This comparison with guardians and curators was omitted from, and does not appear in, Artic1e (4:)1066 of the Netherlands Civil Code, which provides that a testator may appoint, in his last will and testament or by special notarial deed, one or more trustees to administer property left to his heirs or legatees during their lifetime or for a specified period of time. 36 It 35 For example, with regard to the difference between a guardian or tutor and an administrator. 36 Without prejudice to the existing provisions relating to usufruct (Artic\e 3:204 of the Netherlands Civil Code), fideicommissary substitution (Artic\e 4: 1025) and minors and persons made wards of court (Artic\e 1:337 et seq. and Artic\e 1:386). See, as regards the historical development of the law, Van der Ploeg, Testamentair bewind, p. 34 et seq. Section 7 of Title 4 of Book 4 of the (Netherlands) New Civil Code is devoted to the administration of estates.

4. Conclusion

63

is also omitted from the new Civil Code, Article 4: 153. The law as it stands today lays down no detailed rules or time-limits conceming the way in which funds are to be invested. Consequently, a conflict of the kind considered in this chapter is no longer likely to arise. However, administrators are still bound by a duty to exercise a high degree of care. 37 These days, the keeping of cash in an old sock is not regarded as "good" administration of another person's property.

37 That duty of care is expressed by Article 4: 163 as folIows: an administrator shall be Iiable to the person entitled if he fails to act with the care required of a good administrator, unless that failure cannot be attributed to hirn.

Chapter IV

On women in need of assistance: The prohibition of intercession As the great Papinian put it: "In many areas of our law, the legal position of women is worse than that of men".1 For example, women were exc1uded from all public office, could not be judges, and were not permitted to exercise any administrative functions, act as advocates or attomeys or appear on behalf of others.z Why, one wonders now, were women unfit to exercise all those functions? Various reasons are given in the Roman texts. Women were thought to be incapable of looking after their affairs, on account of the vulnerability of their sex (sexus !ragilitas), their frivolity (levitas animi), the instability of their powers of judgment and discemment (infirmitas animi), their ignorance of legal matters (jorensium rerum ignorantia), and so forth. In short, women had to be protected against themselves, and for that reason there originally existed the institution of guardianship of women. However, by the time that the imperial era commenced, this had already fallen into disuse, and it must be observed that the jurist Gaius, who lived around 180 A.D., had no time at all for any of the patronizing arguments regarding women which are summarized above. He stated: The fact that women of full age are under guardianship can scarcely be reconciled with any sound argument, for the generally accepted contention, to the effeet that they allow themselves as a general rule to be taken advantage of on account of their frivolous nature, and that it was therefore reasonable to pI ace them under guardianship, appears to be more specious than true. The fact is that women of full age are capable of looking after their own affairs, and in some cases the guardian exercises his authority purely for form's sake; it frequently happens that he hirnself is compelled by the praetor, against his own inclination, to act as guardian. 3 I D. I, 5, 9: In multis iuris nostri articulis deterior est condicio feminarum quam masculorum. 2 D. 50, 17,2 pr: Feminae ab omnibus officiis civilibus vel publicis remotae sunt ed ideo nec iudices esse possunt nec magistratum gerere nec postulare nec pro alio intervenire nec procuratores existere. 3 Gaius, I, 190: Feminas vero perfectae aetatis in tutela esse fera nulla pretiosa ratio suasisse videtur, nam quae vulgo creditur, quia levitate animi plerumque decipiuntur et aequum erat eas tutorum auctoritate regi, magis speciosa videtur quam

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65

Although guardianship of women had virtua1\y disappeared by Gaius' time, the unequal status of men and women subsisted in numerous respects, and with it the legal protection which tends invariably to be afforded to "persons in need of assistance". lt is proposed in this chapter to deal with one of those forms of legal assistance, namely what is known as the prohibition of intercession. This has played an important role in the ius commune, and hence in Friesland also.

1. The prohibition of intercession What, then, is the prohibition of intercession? The word "prohibition" is in fact amisnomer, since what is involved is not so much a prohibition directed against women but rather a form of legal assistance of which women may avail themselves. That assistance comprises the notion that a1\ financial obligations which women enter into in relation to others are in principle invalid. lt is nevertheless proposed to continue to speak of a prohibition. lt was promulgated in the form of asenatorial decree, the Latin text of which has been handed down to us. 4 Huber's Dutch translation has been taken as the basis for this analysis. He fo1\ows the Latin text very closely, adding to it a waming which was written on the wa1\s of the temple of Apo1\o at Delphi (referred to by hirn as Delft) and which also appears in the sayings of Solomon: Wegens de vrouwen is een bysondere Wet ofte Raets-besluit van Romen, op de voorstel van de Burgemeester Velleius genoomen, ende bekent met de name van Senatus-Consultum Vellejanum, dat haer borgtochten geen kracht sullen hebben; ten eersten, om dat de vrouwen niet en past haer voor andere persoonen te verbinden, en die als onder bescherminge te neemen, 't welk eerder mannen als vrouwen werk is; ten tweeden, om dat de vrouwen licht te beweegen zijn tot medelijden met een anders noodt, als sy niet hebben uit te geeven, ontbreekende haer doorgaens soo veel voorzichtigheyt als er wel van nooden is, om aen te merken, wat gevaer in de borgtochten voor het toekoomende steekt. Desweegen eertijts in de tempel van Apollo tot Delft in Griekenlant dese waerschouwinge stont geteevera: mulieres enim quae perfectae aetatis sunt, ipsae sibi negotia tractant, et in quibusdam causis dicis gratia tutor interponit auctoritatem suam; saepe etiam invitus auctor fieri a praetore cogitur. 4 D. 16, I, 2, I: Postea factum est senatus consultum, quo plenissime feminis omnibus subventum est. cuius senatus consulti verba haec sunt: "Quod Marcus Silanus et Velleus Tutor consules verba fecerunt de obligationibus feminarum, quae pro aliis reae fierent, quid de ea re fieri oportet, de ea re ita censuere: quod ad fideiussiones et mutui dationes pro aliis, quibus intercesserint feminae, pertinet, tametsi ante videtur ita ius dictum esse, ne eo nomine ab his petitio neve in eas actio detur, cum eas virilibus officiis fungi et eius generis obligationibus obstringi non sit aequum arbitrari senatum recte atque ordine facturos ad quos de ea re in iure aditum erit, si dederint operam, ut in ea re senatus voluntas servetur. 5 Lokin/JansenlBrandsma

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Chapter IV: On women in need of assistance: The prohibition of intercession

kent, als van merkelijk belang in dit leeven, "wordt gy borg, soo hebt gy sorg": selfs in de heilige Schrift vint men waerschouwingen van dien zin. 5 [A special law or senatorial decree relating to women was adopted by the Romans, on a motion proposed by the consul Velleius, and known as the senatus consultum Vellaeanum. This provided that a guarantee given by a woman was to have no force - first, because it is not for women to enter into commitments on behalf of other persons and to afford those persons protection, that being men's work rather than women's; second, because women are easily moved to sympathise with the problems and troubles of others, when they do not have to expend any money, and generally lack the degree of prudence necessary in order to appreciate the danger inherent in giving a guarantee in respect of future contingeneies. For that reason, the following waming was formerly inscribed in the temple of Apollo at Delphi in Greece, as being of considerable importance in this life: "If you stand surety, you are sure to have problems". Wamings to that effect are to be found even in Holy Scripture.]

Pursuant to asenatorial decree enacted under the consuls Marcus Silanus and Velleius Tutor, that is to say, in about the middle of the first century A.D., women were prohibited from standing surety for the debts of others. The other person concemed could be an extraneous third party, but could also be the woman's own husband or child. The rationale for that prohibition is completely consistent with the arguments summarised at the start of this chapter. The provision of security is a matter to be left to men, and women quickly allow themselves to be carried away by feelings of sympathy; a woman is wholly unable to resist pressure exerted by her own husband. It should be noted, first of all, that, from the outset, Roman jurists did not limit the prohibition to the fideiussio, or strict guarantee; instead, they extended its scope, by dint of a wide interpretation, to cover all forms of the assumption of liability for the obligations of others, as is indicated by the words "pro aliis reas fieri" in the Latin text. These included the creation of a pledge or mortgage on behalf of another person, the conclusion of novation agreements, the negotiation of loans and the conferment of a mandate on Titius with a view to his being bound on behalf of Sempronius. All such transactions were covered by the prohibition, and were expressed in Latin by the word intercedere, the literal meaning of which is to come between or intervene, whence the term "prohibition of intercession". The characteristic element of the prohibition was that the intercession had to be an autonomous act and could not form part of any more comprehensive agreement. At any rate, that was what the Court of Friesland decided in the case of Tys Obbes v Jeltie Yist and others: 6 5 Huber, Heedendaegse Rechtsgeleertheyt, III, 27, 4; cf. J. E. Spruit, "Het Raetsbesluit van Burgemeester Vellaeius", in: Huldingsbundel Paul van Warmelo, Pretoria, 1984, p. 194 et seq.

I. The prohibition of intercession

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On 17 April 1680 Jeltie YIst, the wife of the beadle Heiderna, had sold two thirds of a house on the Gorredijk to Tys Obbes, a master brewer from Sneek. The terms of the sale included the stipulation that the owner of the remaining third, Sytse Andries, was to rent the part of the property which had been sold for a further year, paying the purchaser 80 Caroli florins by way of rent. In the context of that sale contract, the vendor stood surety for the amount of the rent. Andries appeared to be insolvent, and Obbes therefore claimed from Jeltie payment of the sum of 80 Caroli florins. Jeltie argued in her defence that she had concluded two contracts with Tys Obbes, one of them being a contract of sale subject to a tenancy and the other being a contract of guarantee. That being so, the first contract was a contractus bonae fidei, which meant that "both women and men, without distinction, were competent to enter into that contract". Moreover, it followed that the sums payable by way of rent were due to the purchaser, in the same way as all other advantages accruing from the property sold. However, the second contract - the contract of guarantee - was "stricti iuris and thus diversissimae naturae". That distinction was apparent from, inter alia, the senatus consultum Vellaeanum, wh ich prohibited women from concluding such a contract. Jeltie therefore refused to pay, invoking the senatus consultum. The Court found that she was in the wrong. It held that the guarantee was to be regarded as a collateral condition ancillary to the sale, known as a pactum in continenti. By virtue of the bona fide nature of the sale agreement, such a condition had become part of the sale, which meant that compliance therewith could be demanded by way of an action arising on the purehase, or actio empti. 7 A further point fell to be considered in that regard. Since it was very much in the interests of the vendor herself that the tenancy should subsist for a further year, she entered into a commitment not so much for the benefit of another person but on her own behalf. As we shall see, that is sufficient to preclude reliance on the prohibition of intercession, as is clear from the wording of D. 16, 1,3 and 13 pr. and also C. 4, 29, 23.

What legal consequences arose where a woman contravened the prohibition? Such a contravention did not render her legal acts void, but if a claim were made against her for compliance or performance, she could rely in her defence on the senatus consultum, by invoking the exceptio senatusconsulti Velleiani. The Emperor Justinian tightened up the senatorial decree in two instances. In 530 A.D. he decreed that intercessions which were not effected by means of a public document signed by three witnesses were to be null and void. If such a document did indeed exist, the exceptio could still be pleaded by way of defence. 8 The constitution laying down that rule was frequently referred to at the time by its opening word, and known as the lex antiquae. In 556 A.D. he ordained that intercessions by women on behalf of their husbands were likewise void ab initio. Because that rule was 6 Case No 16562: judgment of 27 October 1693; see Beucker, Rerum judicatarum, chapter LXXX. 7 That rule was taken from a text by Ulpian, D. 2, 14, 7, 5, and from a constitution of the Emperor Maximian, C. 3, 2, 13. See also Lokin, Prota, V35. 8 C. 4, 29, 23, 2 and 3.

S'

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Chapter IV: On women in need of assistance: The prohibition of intercession

promulgated in a Greek Novella9 , and on account of the absence of familiarity with the Greek language during the Middle Ages - Graeca non leguntur -, it was known by the term Si qua mulier, taken from a Latin translation, the Authenticum. 10

2. Restrictions on the prohibition of intercession The conc1uding words of what is invariably referred to as the Authentica si qua mulier place an important limitation on the prohibition of intercession. The prohibition did not apply if it was manifestly obvious that the intercession had taken place in the interests of the woman herself. II That limitation had already been expressly set out in the constitution dating from 530 A.D., C. 4, 29, 23, and can ultimately be traced back to the interpretation placed on the wording of the senatorial decree itself. The decree refers to the obligations of women who have contracted debts on behalf of others - pro aliis. 12 Weil now, says Gaius: I3 it may sometimes seem as though a woman is contracting an obligation on behalf of another, whereas she is in fact doing so in her own interests: prima facie quidem alienam, re vera autem suam obligationem suscipiat. In such circumstances, she cannot rely on the senatorial decree. That rule was applied as one of the grounds of the judgment in the case of Obbes v Ylst, discussed above. It was also cited in the proceedings between Sybout Sierks Hornstra and Wybrandus Siderius. 14 In that case the woman, who operated a business together with her husband, borrowed money on the basis that the loan was stated in the deed, with her husband's consent, as having been made to her alone. Although the profits and los ses were shared equally between the husband and the wife, and whilst it could thus be argued that one half of the loan had been taken out for the benefit of the husband and was consequently protected under the senatus consultum, the Court took the view that the entire loan was so very much in the interests of the wife Novella 134, chapter 8. The term Authentica si qua mulier is invariably used. As to what, precisely, the Authenticum is, see H. J. ScheIterna, Das Authenticum, Subseciva XI, in: Tijdschrift voor Rechtsgeschiedenis, 1963, p. 275. 11 Novella 134, chapter 8, authenticum: nisi manifeste probetur quia pecuniae in propria ipsius mulieris utilitate expensae sunt. 12 D. 16, I, 2, I: .. . de obligationibus ferninarum, quae pro aliis reae fierent .... 13 D. 16, I, 13 pr: Aliquando, licet alienam obligationem suscipiat mulier, non adiuvatur hoc senatus consulto: quod turn accidit, cum prima facie quidem alienam, re vera autem suam obligationem suscipiat ["In some cases, the woman is afforded no assistance by the senatus consultum, even though she assurnes an obligation on behalf of another: that is the situation where she appears at first sight to enter into an obligation on behalf of another but in reality assurnes it on her own behalf']. 14 Beucker, Rerum judicatarum, chapter LXXXIß; Huber, Praelectiones juris civilis, re D. 16, 1§ 12 and Case No 16566: judgment of 9 February 1697. 9

10

2. Restrictions on the prohibition of intercession

69

that she could not be permiUed, on the basis of D. 16, I, 13 pr, to rely on the assistance afforded by the senatus consultum Vellaeanum.

Consequently, where, as in that case, it was not dear to the creditor whether the woman was acting for herself or on behalf of her husband, the senatorial decree ceased to have effecL Ulpian stated, in D. 16, 1,4 pr, that he had no doubts on that score. 15 If, on the other hand, the creditor were aware of the fact that the woman was entering into an obligation on behalf of another, the senatus consultum Vellaeanum could successfully be called in aid. 16 Where, for example, a loan made for the benefit of the husband or of the husband and wife was stated by the creditor in the deed as being in the wife's name only, so that she was recorded as being the sole debtor, whereas in reality she was (jointly) liable for the indebtedness of the husband, the senatus consultum Vellaeanum could be invoked; for that construction afforded an obvious means of circumventing the senatorial decree. The words of the Emperors Diodetian and Maximinian are applicable in this connection, to the effect that the reality, or veritatis substantia, of the situation is more deserving of protection than the simulata gesta, or what is laid down in the deed. 17 That constitution proved opportune in the proceedings between Mayke Jans and Wytse Aleph Popma, which were determined on 15 July 1675. 18 The facts appeared very similar to those in the earlier ease of Homstra v Siderius. The money-Iender Wytse Aleph Popma had lent money to a husband and wife jointly, and had, moreover, paid that money over to the two of them together. However, since he had no faith in the ereditworthiness of the husband, he organised maUers in such a way that the deed stated that the money had been paid over to the wife alone. Consequently, according to the deed, Mayke Jans was Iiable for the whole of the debt, whereas in reality she was Iiable for only half of it. And it is the reality of the situation that counts, stated the Court, rely15 D. 16, 1,4 pr: Sed si ego cum muliere ab initio eontraxerim, cum ignorarem, cui haec factum vellet, non dubito senatus eonsultum eessare: et ita divus Pius et imperator noster rescripserunt. [But if I have contracted with a woman from the very beginning, when I did not know on whose behalf this act was intended, I do not doubt that the senatusconsultum does not apply; and so the deified Pius and our own emperor have stated by rescript. 16 This is unequivocally stated in D. 16, I, 12 and D. 16, 1,28, I. 17 C. 4, 29, 17: Si, eum pater vester a Callistrato mutuam sumpsisset pecuniam, velut hanc eius uxor accepisset, instrumentum conscriptum est, nec ad exceptionis tractatum ex senatus consulto venientem pervenire necesse est, cum eam veritatis substantia constituta potior quam simulata gesta, tueatur ["If your father has received a loan from Callistratus and a deed is drawn up indicating that it was received by his wife, it is unnecessary to ask yourself whether the defence arising from the senatus consultum applies, since what really happened affords her greater protection than what is feigned in the deed"]. 18 Case No 16544: judgment of 15 July 1675; cf. Beucker, Rerum judicatarum, chapter LXXXIII.

70 Chapter IV: On women in need of assistance: The prohibition of intercession ing on C. Popma in as Paulus assuming able?O

4, 29, 17 and C. 4, 29, 4. 19 Moreover, the deed had been drawn up by such a way as to circumvent reliance on the senatus consultum. And, states in D. 16, I, 12, if the creditor knows that the woman is in fact an obligation on behalf of another, the senatus consultum is applic-

Thus, if the intercession (also) operates to the advantage of the woman herself, the senatus consultum ceases to have effecl. The senatorial decree is c1early intended to provide a remedy against the possibility of the sort of pressure which is often put on women to commit themselves to be answerable for the indebtedness of others; but it provides no support for transactions which also benefit the woman herself. This is not the only limitation on the application of the senatus consultum. If, for example, the woman evidently intended to make a gift, or if it is apparent, following the expiry of the period available to her for mature reflection on her transaction, that she has confinned the intercession, then she cannot subsequently pray in aid the defence afforded by the senatus consultum, since the senatorial decree was not enacted in order to preclude the making of gifts. If, for exampIe, the woman makes a gift of money which has been lent to her, or if she pays the creditor of the person to whom the gift is made, such gifts have nothing to do with the operation of the senatorial decree. The reason for this lies in the fact that it is generally a friend or relative who induces a woman to stand surety etc., whereas she makes a gift of her own motion. To put it another way: as Ulpian says, a wo man will more easily enter into a commitment on behalf of another than give something to someone as a gift?! However, if she has had sufficient time in which to reflect on her intercession and nevertheless confinns that intercession, despite knowing of the assistance afforded by the senatus consultum Vellaeanum, she is regarded as having, so to speak, forgone that assistance. It is apparent from her confirrnation of the transaction that she must have been weil aware of 19 C. 4, 29, 4: Senatusconsultum locum habet, sive eam obligationern, quae in alterius persona constitit, mulier in se transtulerit vel participaverit sive, cum alius pecuniam acciperet, ipsa se constituit ab initio ream, quod et in rerum earum pro aliis obligationibus admissum est ["The senatus consultum is applicahle both in the event that a woman has transmitted to herself or participated in another person's obligation and where she has held herself out as the debtor from the outset despite the money having been received by another. For this is permissible in the case of obligations entered into on behalf of others"]. 20 D. 16, I, 12: Immo tunc locus est senatus consulto, cum seit creditor eam intercedere. Cf. D. 16, I, 28, I. 21 D. 16, I, 4, I: ... quia facilius se muli er obligat quam alicui donat. Cf. Huber, Heedendaegse Rechtsgeieertheyt, I1I, 27, 14: the senatus consultum is not applicable ... if she (the woman) acts with the intention of making a gift, for a woman is not forbidden to give things away, inasmuch as, according to the law, women may easily have no need of such things.

2. Restrictions on the prohibition of intercession

71

wh at she was doing and did not embark upon it lightly, whereas the se natori al decree was enacted with a view to enabling women to backtrack on such imprudent acts. For those reasons, Tjitske Bockma's reliance on the senatus consultum Vellaeanum was unsuccessful. On 9 February 1706 the Court ruled that her defence against the claim of Dirk Sybrens was ineffective, despite the fact that she had initially appeared to have a good case. What were the proceedings all about?22 Tjitske Johannis Bockrna, the widow of Popke Claesses, residingon the Dokkum canal outside Leeuwarden, had borrowed money on several occasions from the boat-owner Dirk Sybrens, who lived on the Vliet [stream], Iikewise outside Leeuwarden. She acknowledged in a deed that she was indebted to hirn in the sum of 910 florins, arising from three loans. Her son stood surety for her. Upon her ceasing to pay the interest, Dirk wanted to sue her, but was c1early mollified time and again by her supplications. After four years, however, he feIt that matters had gone too far. He issued a writ against Tjitske, summoning her to appear before the court, and the fact that the proceedings never got as far as a judgment was due to her having assigned to hirn, by way of security, the deed relating to a piece of land wh ich she had purchased and let. Dirk took no further action for a while, and coIlected the ren tal money as a sort of interest. Following various fresh difficulties, however, the matter came to trial. In the proceedings, Tjitske raised the defence that the real debtor was not her but her son. The reality of the situation was, she c1aimed, precisely the opposite of what was written in the deed. The money lent had been paid out to her son and his wife, and not to her. She had been prompted to stand surety by her feminine impulsiveness. On the recommendation of Dirk's lawyer, the roles had been reversed, in order to afford Tjitske no opportunity of relying on the senatus consultum Vellaeanum, which she could do as surety but not as the principal debtor. Of course, she might weIl have acted as a surety and waived her right to plead the senatorial decree, but in order for that to happen witnesses were needed. It would cost much time to try to find witnesses, and in order to avoid giving Tjitske the opportunity of endlessly protracting the matter, Dirk's lawyer had suggested that role reversal. It was a mean trick aimed at getting round the rules with a view to bringing about a waiver of the right to rely on the senatus consultum VeIlaeanum. Dirk naturally denied all this, but Tjitske was able to produce evidence substantiating her assertions; and given that, as we have already seen, the reality of the situation counts for more than the apparent circumstances as recorded in the deed,23 and in view of the fact that aIl stratagerns devised with a view to circumventing the senatus consultum are invalid,24 it appeared that Tjitske was going to win the litigation. 22 Case No 16575: judgment of 9 February 1706; case-file in No 8540. See Beucker, Rerum judicatarum, chapter LXXXI, p. 90. 23 C. 4, 29, 17. See footnote 17. 24 D. 16, 1,29, I: Paulus respondit ea, quae in fraudem senatus consulti, quod de intercessione feminarum factum est, excogitata probari possunt, rata haberi non oportere ["Paulus replied that devices which can be shown to have been thought up in order to circumvent the senatorial decree concerning intercession by women cannot be regarded as valid"].

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Moreover, her legal position was discussed in two texts, both of which were in her favour?S Yet she was ultimately defeated, on account of the security which she had given after a lapse of more than two years. For lustinian had decreed that where, within two years after first acknowledging her indebtedness, a woman did so a second time in respect of the same subject-matter or fumished a pledge or generally interceded, that was not to count against her; if, however, that happened after two years had elapsed, then it could most certainly be held against her; in such circumstances, she created the impression that she was acting on her own behalf rather than for another?6 The handing over of the deeds was equivalent to the transfer, by way of security, of the immoveable property described in them 27 , and Tjitske was therefore deemed to have been weil aware of what she had done. For those reasons, her reliance on the senatus consultum Vellaeanum was unsuccessful, despite the fact that she was held by the Court to be a surety.

A woman was also able, otherwise than by confirming her indebtedness, to make it known that her suretyship was not an act resulting from fragililas or Levitas but a transaction to which she had given mature reflection. Where, for example, she directed her heirs in her will to pay off, out of her estate, the debt for wh ich she had stood surety, then they could not raise a defence by invoking the senatus consultum Vellaeanum. A woman' s last will and testament showed that it represented her serious wishes. That was once again established on 27 October 1626, in the case of Pieter Jacobsz Olycan v Lijsbet Harmens. Pieter Olycan, alderman of Haarlern and a brewer by trade, had sold Haarlern beer to the married couple Willem Gerryts and Antke Harmensdr, living in Sneek. By deed of 6 September 1614, Syouck Lolkedr had stood surety for the sum of I 000 Caroli florins, "which fideiussio. having been effected, she wished to insist upon and corroborate, and she had therefore directed by written disposition and her last will and testament that the same should be settled and paid out of her estate." The terms of the will were thus sufficiently cJear. Syouck died and left her estate to three daughters and heirs, Tryn, Antke and Lijsbet Harmens. D. 16, 1,29 pr and C. 4, 29, 4; see footnotes 19 and 24. C. 4, 29, 22, I: Sin autem post biennium haec fecerit, sibi imputet, si, quod saepius cogitare poterat et evitare, non fecit, sed ultro firmavit; videtur etenim ex huiusmodi temporis prolixitate non pro aliena obligatione se illigare, sed pro sua causa aliquid agere et tarn ex secunda cautione sese obnoxiam facere, in quantum hoc fecit, quam pignus aut intercessorem utiliter dare ["But if she has done this (i. e. confirmed the debt) after a lapse of two years, then it counts against her, on the basis that it is something which she has had plenty of time to reconsider and yet has taken no steps to avoid, having instead confirmed it of her own volition - for it must be inferred from the lapse of such a lengthy period of time that she is not committing herself to honour an obligation owed by another but is instead undertaking something on her own account, and, by virtue of that second guarantee, is rendering herself liable in the same measure as if she had validly granted a lien or stood surety]. 27 In support of this, reference was made to constitutions dating from 207 A.D. (c. 8, 16, 2) and 210 A.D. (c. 8, 53, 1). 25

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Sijds Oeges, who was married to Lijsbet, was appointed executor. Pieter Olycan c1aimed the money from the daughters, but they refused to pay. They pleaded the exceptio senatus consulti Vellaeani, which, as the Emperor Diocletian had previously ordained, was undoubtedly transmissible to heirs, for C. 4, 29, 20 provided that there could be no doubt that the woman's heirs could raise against the creditor the same plea arising from the senatus consultum?8 Their defence was to no avail. The Court held that the testamentary provision was to be regarded as confirrning the guarantee previously given, and consequently that the defendants' reliance on the senatus consultum Vellaeanum was in vain. The defendant Lijsbet, widow of Sijds Oeges, who had died in the interim, was therefore ordered, "inasmuch as she is an heir of the late Syouck Lolkedr, to pay the plaintiff 1000 Caroli florins plus damages".29

Voet, in his Commentary,30 cites that judgment as a typical Frisian variant of the general rule, and considers that a direction in a will requiring the debt to be paid constitutes a de facto waiver of the defence afforded by the senatus consultum Vellaeanum: rebus ac factis. Thus, such a waiver did not invariably have to be expressly enunciated.

3. Error of law What is striking about the matters dealt with above is the way in which the jurists encourage the courts to investigate what actually happened, and not to approach the case solelyon the basis of what appears in the deeds. The senatorial decree was not applied automatically; nor was the assistance which it afforded automatically withheld if it were shown that there was reason to suspect the use of trickery in order to circumvent it. In other words, assistance was afforded to women only if that were really necessary. 28 C. 4, 29, 20: Heredes quoque mulieris adversus creditores eadem exceptione, quae ex senatus consulto introdueta est, uti posse non dubium est. 29 Case No 16496: judgment of 27 October 1626; see Van den Sande, Gewijsder Saecken, III, ll, 7; Huber, Heedendaegse Rechtsgeleertheyt, III, 27, 17: "Yet the wornan's heirs lose the right to raise that privilege by way of defence if the woman has laid down in her will the requirement that the debt for wh ich she stood surety is to be paid, for they must content themselves with what is contained in her will. 30 Voet, Commentarius ad Pandectas, re D. 16, I, No 9: ... Et rebus ipsis ac factis renunciato non perperam subinde colligatur ... Qua ratione in Frisia judicaturn, heredes mulieris, sine renunciatione intercedentis, Vellejani exceptione tueri sese non oportere, quoties mulier suo praecepit testamento isti creditori apud quem intervenerat, satisfieri fidemve liberari ["A waiver (of the senatorial decree) may also be rightly inferred from the facts. For that reason, judgment is given in Friesland that the heirs of a woman who has stood surety without waiving (her privilege under the senatus consultum) may not enjoy the protection afforded by that provision where, as frequently happens, the woman has ordained in her will that the creditor to whom she provided the security is to be repaid and that she is [thereby] to be released frorn her indebtedness"].

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In this connection, a comparison with the doctrine of error of law urges itself upon uso It is axiomatic that each individual is deemed to be familiar with the law. This means that ignorance of the law cannot amount to a defence: error iuris nocet, or, in English, an error of law operates to the disadvantage of the person who commits it. However, minors (aged under 25) and women were exempted from that rule, the former on account of their youth and the latter by reason of the weakness of their sex: propter sexus infinnitatem. 31 That meant that women were forgiven for the fact that they were sometimes unfamiliar with the law. In such cases, they could be restored to the position which they occupied be fore the error was committed. This did not mean, however, that they were entitled to plead an error of law without limitation and in every case, as Miss Rieme van Nitsen leamed to her cost on 2 March 1641. 32 Rieme van Nitsen was already over thirty years of age when her mother, Attke van Offenhusen, died. She decided to seil the parental horne in Minnersga, the Phamia estate, and in making that decision she conducted herself as an heiress. Such conduct, pro herede gestio. is tantamount to entry into possession of the inheritance. She entertained the expectation that the inheritance would be profitmaking. or lucrosa. but upon the public sale of the Phamia estate so many creditors came forward that the debts (25000 Caroli florins) far exceeded the sale proceeds (20000 Caroli florins). The inheritance as a whole was patently lossmaking, or damnosa. With everything having tumed out otherwise than she had hoped, she sought to avail herself of the right to forego the succession, or ius deliberandi. and of the privilege of the taking of an inventory or beneficium inventarii. Miss Rieme relied on lost. 2, 19, 5 and 6, in which those rights in favour of heirs are recognised. She maintained that she had been unaware of those rights, and therefore applied propter summam ignorantiam for the separation of her assets from those of her mother and for an order restoring her to her former position. She considered that support for her application was to be found in D. 22, 6, 8 and 9 pr., which state that, in certain cases, women may not be prejudiced by an error of law: in quibusdam causis non laeduntur. Her mother's creditors, who appeared as defendants in the proceedings, sought first of all to show that they had been generous towards Miss Rieme. They pointed out that she had been "Ieft with all the woollens, linen, gold, silver and her mother's clothing without bringing any of the same to light". As to the question of an error of law, they relied on another text from the Digests: D. 22, 6, 7. This states that an error of law cannot benefit those who have expressed their wish to acquire something. 33 Moreover, the text relied on by Miss Rieme stated a little further on that an error of law cannot avail a person who could easily have familiarised hirnself with the law, for example by seeking advice from a lawyer. As Labeo states in the passage in question, it should only rarely be assumed that there is any diffiD. 22, 6, 9, pr. Nauta, Decisien, quaestio LCV, p. 209. The date given by Nauta - 20 March \641 - is incorrect. Case No 16510: judgment dated 2 March \641. 33 D. 22, 6, 7: Iuris ignorantia non prodest adquirere volentibus. 31

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cu1ty in obtaining the requisite know1edge. 34 The Court came to the same conclusion, and thus dismissed Miss Van Nitsen' s application on 2 March 1641.

4. Renunciation Friesland would not be Friesland if, within the scope of the subject-matter dealt with in this chapter, it did not in some respect follow a divergent that is to say, Roman - course. That respect concemed the waiver or renunciation of the right to avail oneself of the defence of senatus consultum Vellaeanum or to rely on the Authentica si qua mulier. A woman could renounce the privileges conferred on her, but by so doing she placed herself up against the same difficulties as those which had underlain the entire set of mIes contained in the senatus consultum. If a woman could so easily be moved by pity, or by slight pressure from her husband, to stand surety, then it would be just as easy for her, moved by the same feelings, to waive her privileges. 35 Thus, such a renunciation had to be circumscribed with the greatest possible safeguards, so as to ensure that the woman was fully conscious of what she was doing in waiving the legal remedies conferred on her. Consequently, a general waiver could never be executed; aseparate renunciation was necessary in each case, specifying what was being waived. 36 At the same time, the renunciation of the senatus consultum had to be contained in a public deed, that is to say, a deed drawn up by a notary and signed by hirn and by at least three witnesses. That requirement was laid down in respect of intercession by Justinian 37 and was strictly observed in Friesland, unlike in Holland. Thus, for example, on the day before Pentecost in the year 1605, the Court declared invalid a guarantee and renunciation set out in a deed which had been duly drawn up by a notary but which was unattested by witnesses and thus constituted a private instrument. 34 D. 22, 6, 9, 3: Sed iuris ignorantiam non prodesse Labeo ita accipiendum existimat, si iuris consulti copiam haberet vel sua prudentia instructus sit, ut, cui facile sit scire, ei detrimento sit iuris ignorantia: quod raro accipiendum est ["In Labeo's view, the notion that ignorance of the law cannot avail a person must be understood as meaning that such ignorance will count against a person who could easily have obtained the infonnation required if he had had access to a lawyer or had hirnself had knowledge of the law; a person for whom it is easy to be abreast of the law will not be helped by his ignorance of it, but it should seldom be supposed that the latter state of affairs exists."J 35 Voet, Commentarius ad Pandectas, re D. 16, I, No 9, considers this observation to be incorrect, because a woman will invariably enter less recklessly into a second transaction than the first. A contrary view is expressed by Van den Sande in Gewijsder Saecken, III, 11, 6: ..... because a woman may just as rashly waive and renounce as bind herself. " 36 Cf. Huber, Heedendaegse Rechtsgeleertheyt, m, 27, 23. 37 Cf. C. 4, 29, 23.

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In the proceedings at first instance, judgment was given against the woman on the basis that she had acknowledged the act recorded in the deed as being her own. She appealed against that judgment before the Court, cIaiming that neither the guarantee nor the renunciation was valid, since they were not set out in a "public instrument executed in the manner prescribed by Justinian".38 The Court was fully in agreement with her. According to the Court, the renunciation "was wholly ineffective, since it had been done, contrary to the law, in a private instrument".

In another iIIuminating case, decided over a hundred years later, the point at issue was once again the requirement of a public deed. A renunciation purporting to have been effected otherwise than by a public instrument was held to be invalid, but reliance on the senatus consultum VeIIaeanum was rejected on a different ground. Tarquinius van Velsen was the pastor of Wolsum. He had five children by his wife, Bouckje Schotanus, two of whom died in their infancy. The married couple likewise died shortly thereafter, leaving three girls as orphans. They were taken in by an aunt, Hiltje Schotanus, "an aged spinster" living at Franeker. Their guardian was her brother, Jacobus Schotanus, apothecary and magistrate of Franeker. The lauer set up an annuity of 300 Caroli florins for the benefit of the children. Upon his decease, possession of the annuity passed to his sister Hiltje. Hiltje and her growing nieces Iived in comfortable circumstances. They ran a shop selling "furs and lace", for which they borrowed money, totalling 600 Caroli florins, from one Becker, of Jelsum. On 8 October 1717 the annuity bond on the Iife of Helena van Velsen, inter alia, was provided by way of security. The three sisters, Rixtie, Judith and Helena, stood surety for two other debts, totalling 1000 Caroli florins. Upon their auaining their majority, that security was confirmed. The shop selling furs and lace did not prosper, and Hiltje found herself constrained to sell all her possessions. At that juncture, Helena van Velsen lost her temper and her patience. She instituted legal proceedings against the widow of the creditor Becker, Frouckje Fullenius, cIaiming the return of the annuity bond as her property. She maintained that Hiltje had never been in a position to pledge her bond as security, since such a pledge had necessarily to be regarded as an intercession and was, as such, prohibited by the senatus consultum Vellaeanum. The security given in respect of the other two debts was likewise invalid, since although the deed contained a waiver of the benefit of the senatorial decree in question, such a renunciation had in Friesland to be effected by means of a public instrument, executed in the presence of a notary and countersigned by at least three witnesses. That had not been done. Finally, Helena also pleaded the exceptio non numeratae pecuniae. The money had been paid over not to her but to her aunt. Frouckje Fullenius countered with a certain measure of indignation. According to her, the plea of exceptio non numeratae pecuniae was easily rebutted, since it had invariably to be raised within two years after the debt was incurred, and that twoyear period had expired a long time previously. On that point, Frisian law strict1y 38

Van den Sande, Gewijsder Saecken,

m,

11, 2.

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followed Roman law. It might weil be possible elsewhere to exeeed that two-year time-limit by having reeourse to the general rule of equity, but not in Friesland. 39 As for the annuity bond, that was not wholly the property of Helena van Velsen; instead, it formed part of the assets of Hiltje Sehotanus. Consequently, she was entitled to deal with it as she thought fit. Were the bond indeed the property of Helena, it eould be regarded as a valid seeurity, sinee, first, Helena had eonsented, in full knowledge of wh at she was doing, to the giving of the pledge and, second, the money lent had direetly been applied for the benefit of Helena herself. She had gained from it, sinee she had whilst a minor been sent to school at considerable expense, "Iike a genteel and privileged ehild of a bourgeois family", and had, since attaining adulthood, had "fine young ladies' c10thes to wear and a maid to wait upon her" - whereas she had inherited little in the way of property, "not nearly enough with whieh to maintain a c1ergyman's ehildren". The same applied in relation to the seeurity and the renuneiation reeorded therein. Whilst it was true that no waiver had been effeeted by public instrument, that did not affeet the validity of the seeurity, sinee Helena had herself benefitted from the money, and it naturally followed as a result, on the basis of D. 16, I, 13 pr., that relianee eould not be plaeed on the senatus eonsultum Vellaeanum. The Court regarded Frouekje's defenee as eonvincing, on the basis of the fact that Helena herself had profited from the money and that, eonsequently, there was no questi on in the present case of any security. Aceordingly, it dismissed Helena's applieation. 40

In Holland, the lustinianic requirement of a public instrument was no longer applied. As Groenewegen put it: "Nostris et Gallorum moribus Iw.ec solemnitas non requiritur.,,41 In order to effect a valid waiver, it was enough for the act to be written under one's own hand or the hand of another. This was further confirmed by Voet. Apud nos, he stated, it makes no difference whether the intercessio provided for by a renunciatio is contained in a private or a public deed; however, he adds, Roman law, which is still followed in Friesland, requires the execution of a public instrument. 42

5. Renunciation otherwise than by a public instrument Thus, the Justinianic requirement of a public act was adhered to in Friesland, and that rule remained the starting-point of Roman-Frisian law. However, exceptions to that basic rule were permitted. Even a private instrument could contain a valid renunciation if its authenticity was confirmed by Huber, Heedendaegse Rechtsgeleertheyt, m, 20, 8-11; see Chapter II. Case No 16589: judgment of 27 May Inl. 41 Groenewegen, De legibus abrogatis, re C. 4, 29, 23, p. 540. 42 Voet, Commentarius ad Pandectas, re D. 16, I, No 9, final passage: Similiter parum refert apud nos, an publico an privato instrumento muliebris intereessio, renunciatione munita, comprehensa sit ... quamvis jus Romanum, quo adhuc Frisia utitur, publicum instrumentum requirat. 39

40

78 Chapter IV: On women in need of assistance: The prohibition of intercession three witnesses. In the absence of any witnesses attesting the act, its validity could still be ensured if it were confirmed by an oath. 43 This extension of the principal rule gave rise to a certain amount of confusion, and accordingly to aseries of judgments. Thus, where a woman had stood surety and effected a renunciation in a public instrument, the question arose as to whether the swearing of an oath was necessary. That question was answered in the negative by the Court on 15 July 1616: it held that the Justinianic requirement of an instrumentum publicum was sufficient. The issue was not as simple as it may at first sight appear. Underlying it was a question of principle, namely wh ether the senatus consultum Vellaeanum was brought into play by virtue of a general interest "in achieving the best result and benefit for society" or whether the interests of the woman were paramount. If the decree were made in the general interest, it concerned a point of public policy which could not be overridden by private transactions or contracts, especially if one held the view that a woman might equally rashly effect a renunciation as bind herself to an obligation. However, were it made in the interests of the woman, any person was entitled to renounce a right existing for his/her benefit. Van den Sande dealt with the issue in one of his "definitive cases".44 In so doing, he cited arguments in support of both views, and it is instructive to list the names of all the jurists referred to, so as to give the reader an idea of the number of writers exercised by the issue and the international character of the cirde of jurists concerned. As subscribers to the first view, that is to say, those who regarded the senatorial decree as being a matter of public policy, Van den Sande lists Antonius Tessaurus, Charles Dumoulin (Molinaeus), Antonio Gomez, Hugues Doneau (Hugo Donellus), Valentinus Francus, Matthaeus Wesenbeck, Petrus Costalius, Diego Covarruvias, Johannes Goddaeus, Catellanius Cotta, Andreas Rauchbaert, Antonius Merendas and Mathaeus Berlich. Those subscribing to the contrary view are: Ulrich Zasius, Jacques Cujas (Jacobus Cujacius), Petrus Faber, Andreas von Gaill, Julius Pacius, Andreas Fachinaeus and Conradus Riddershusius. The Court sided with the latter group in its judgment of 15 July 1616 in the proceedings between Aesghe Poppes, of Goingarijp, and the heirs of Doed Jarighs, the widow of Fedde Mijntes. 45 Van den Sande recorded in that connection: et alias saepius, signifying that similar decisions had been arrived at on several occasions in comparable cases. The above-mentioned judgment makes it sufficiently dear that it was enough for an intercession or renunciation to be recorded in a public instruSee Huber, Heedendaegse Rechtsgeleertheyt, III, 27, 18. Van den Sande, Gewijsder Saecken, III, 11,6. 45 Only the bald terms of the operative part of the judgment are to be found in the Quaclap, inv. no 16712. 43

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me nt. In that regard, the swearing of an oath was superfluous. Such an oath was needed in order to render a private act valid. In such a case, that is to say, in the case of a private act executed under oath, was a woman still entitled to rely on the lustinianic constitution C. 4, 29, 23 of A.D. 530 (lex antiquae), which required a public instrument? That question went back to a difference of opinion between the two Titans of medieval academic law, Bartolus and Baldus. Baldus rnaintained that a woman who had swom an oath in respect of a private document was nevertheless not bound by it, since no exceptions were permitted to the requirernent of an instrumentum publice confectum laid down by the Emperor lustinian in the lex antiquae. Bartolus, on the other hand, attached weight to the religious significance of the swearing of an oath. In his view, which accorded with canon law, the religious nature of the oath operated to make good all legal defects and irnperfections. Thus, the oath made up for the absence of the solemnity of a public instrument or, to put it in simpler terms, it removed the formal deficiency of a private act. In that regard, the Court of Friesland followed Bartolus and the canon law, and ruled to that effect on 20 December 1606 in the litigation between Meinte Riencks and Hidke Mercks, the widow of Peter Sytsez. 46 May a woman also renounce the right conferred by the Authentica si qua mulier, which provides that intercession by a wornan on behalf of her husband is null and void ab initio? Yes, she may, but since the beneficium goes further here than that conferred by the senatus consulturn Vellaeanum, an additional requirement was imposed on renunciation in Friesland. In order for such a renunciation to be valid, the wornan had actually to swear an oath that she was renouncing a privilege. It was not enough for the words of the oath to be recorded in the document, since wornen were much more Iikely to sign an act containing the words ita me Deus adiuvet than corporaliter, that is to say, physically to swear an oath. 47 That, at least, was the view taken by the Court in the case between Albert Jansen Balck and Foek Pieters. 48 Not only did an oath have actually to be swom, but in addition the prescribed wording of the oath had to be uttered. According to Van den Sande, this was a matter of great importance. 49 For exarnple, such words as "I swear by all that is true" or "I swear to the best of my belief and on rny honour", or some other sirnilar formula, were not sufficient, as the Court mied on 27 October 1606 in the case of Gerrit Wil46 Van den Sande, Gewijsder Saecken, III, 11, 5. Judgment of 20 December 1606. 47 Beucker, Rerum judicatarum, chapter LXXXII, p. 91: aliud enim est iurare, aliud subscribere instrumento ("For it is one thing to swear, and another thing to sign a deed"). 48 Case No 16559: judgment of 20 December 1690. See also Case No 16502: judgment of 4 June 1633 (Sacle Kingma v Miss Syouck van Ockinga). 49 Van den Sande, Gewijsder Saecken, III, 11, 3.

80 Chapter IV: On women in need of assistance: The prohibition of intercession

lems against Matthijs Everts. 50 lt had to be clear from all the circumstances that the woman knew what it was that she was renouncing. Indeed, there even existed a sort of duty on the party with whom the woman was contracting to ensure that she was fully informed. That party had to make the woman wishing to renounce aware of the rights which she was waiving. That duty on the part of the "stronger" party to provide information to the "weaker" party strikes us as being a very modem phenomenon; yet already on 27 October 1610, in the case of Aucke Algers against Baucke Heskes, the Court declared a renunciation to be ineffective since it was not apparent from the act that the woman was cognizant of the privilege conferred by the Authentica. 51 Summing up the requirements for renunciation of the right conferred by the Authentica si qua mulier, we can see that what is needed is a public instrument executed in the presence of a notary and signed by at least three witnesses, and that a formal oath has actively to be swom in that connection. If any one of those conditions is not fulfilled, the renunciation is ineffective, and the woman may still rely on the nullity of her intercession. Thus, in the proceedings between Saeck Hendricks and Pieter Pheltens, the woman had purported to renounce her rights in a public instrument which was attested by three witnesses but not executed under oath. On 9 February 1613 the Court declared that renunciation invalid. 52 By contrast, in the case of Tiemcke Hanses and Others v Rommert Folckerts and Nicolaus Scipio Raard, it was clear that an instrument had been executed and that an oath had been swom, but theTe were no witnesses. In that case too, the renunciation was regarded by the Court as ineffective. 53 The married couple Thomas Borrus and Freerckien van Alten owed a debt of 300 Caroli florins to Tiemcke Hanses and Jacob Martens. By way of security, they had given in the creditors' favour a general hypothec over their goods, covering in particular their house at Balk. Despite a protest by the creditors, who sought to preserve their right, the debtors sold the house for 600 gold florins to Rommert Folckerts and others. The purchasers were given notice of the creditors' rights. Thomas Borrus and his wife appeared to be manifestly insolvent, and the creditors Tiemcke Hanses and others therefore considered that they had no alternative but to bring proceedings in the form of an actio hypothecaria against the defendants Rommert Fo1ckerts c.s. The case thus concerned a c1assic example of a charge over the property of third parties. The defendants argued that Thomas Borrus had never been the owner of the house and that he could not, therefore, have granted a valid hypothec. The house had originally formed part of the estate of Case No 16708. Van den Sande, Gewijsder Saecken, ßI, 11, 3. No 16709. 52 Van den Sande, Gewijsder Saecken, ßI, 11,3. Case No 16707. 53 Huber, Heedendaegse Rechtsgeleertheyt, ßI, 27, 20. Case No 16549: judgrnent dated 17 February 1680. 50

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Joucke Joris Steenkust, who had demised it to her daughter Freerckien van Alten, subject to the fideicommissary condition that, if Freerckien were to die without leaving issue, it should all pass to Hendrickien Steenkust. Thus not Thomas, but Freerckien solely had committed herself, by way of hypothec, in respect of the whole of the debt, that is to say, as to half in relation to her own indebtedness and as to half in relation to that of her husband. As to the latter half, she thus interceded, and in the public deed of hypothec, executed in the presence of a notary, she had renounced the rights conferred on her by the Authentica si qua mulier. She had even confirmed that renunciation under oath; however, the deed was not attested by the requisite number of witnesses. The Court, having full regard to all the circumstances, etc., declared that renunciation under oath in a notarial deed but without witnesses was insufficient, and thus invalid. Consequently, the intercession was null and void, and that meant that the hypothec had been given in respect of only half of the debt, that is to say, solely in relation to the wife' s half. The defendants/purchasers were therefore ordered to "release the house and grounds for the benefit of the c1aimants, or otherwise pay to the latter, out of the purehase price thereof, one half of 300 Caroli florins" . Since Thomas Borrus was manifestly insolvent, the creditors would probably not have succeeded in getting their hands on the other half.

As may clearly be seen from the above, the defence offered by the senatus consultum Vellaeanum and the privilege of the Authentica si qua mulier are two separate remedies, however much the laUer mayaiso constitute a refinement of the former. Despite the fact that the Authentica is invariably referred to in the same breath as the senatorial decree, and although the two have frequently been handed down on an inseparable basis, they cannot simply be lumped together. As has al ready been repeatedly stated, the senatorial decree provides a defence in the form of an objection, whereas the Authentica gives rise to nullity. Renunciation of the senatus consultum, even where confirmed by means of a "physical" oath, does not on that account automatically imply renunciation of the Authentica. Thus, aseparate renunciation is necessary.54 There was no such separate renunciation in the case of Meynte Riencks and Hidke Mercks, which has already been referred to above in a different connection. The wife had assumed the indebtedness of her husband by means of a novation, and had confirmed the valid renunciation of the senatus consultum Vellaeanum by actually swearing an oath. However, the deed contained no reference whatever to the Authentica or the renunciation thereof. The Court ruled on 20 December 1606 that she was therefore still validly entitled to rely on the privilege conferred by the Authentica, since no waiver of the latter could be inferred from the formal renunciation of the senatorial decree. Van den Sande55 mentions a second, similar case, between Tyaert Pieters and Hans Piels, which was decided on 22 February 1622.

S4 5S

Huber, Heedendaegse Rechtsgeleertheyt, ßI, 27, 22. Van den Sande, Gewijsder Saecken, ßI, 11,4. Case No 16492.

6 LoItiniJanscnlBrandsma

82 Chapter IV: On women in need of assistance: The prohibition of intercession

Finally, the further question arises as to whence the Frisians derived this additional requirement of the swearing of an actual oath in the case of renunciation of the Authentica. No such requirement existed in Holland. Groenewegen says so, in as many words,56 and refers in that connection to the lustinianic lex antiquae 57 , which does not mention any such oath. Does Holland follow Roman law more c10sely in this regard than Friesland? The ans wer to that question is no. In actual fact, the Frisians adhered more rigorously to the lex antiquae than the Hollanders, since the latter had allowed the requirement of a public act to lapse and were equally prepared to acce pt a renunciation which was apparent merely from a private deed. Rather, it may be argued that, in that respect, Friesland was more Roman that the Roman emperors, or at any rate as Roman as the Pope. For the fact is that the requirement of an oath originated from canon law. As Van den Sande puts it,58 the oath "exists in order to avoid any imperilment of the soul", and is intended to make up for any legal shortcoming. Canon law was "sti\l upheld and followed,,59 in such maUers, and for that reason the Frisians differed in that respect from the Hollanders. As we have already observed, a certain arbitrariness may be discerned in those cases in which "Popish" law was, or was not, accepted. 60 For the most part, the rules of canon law which were accepted were legitimated by the long-standing validity which they had possessed. They became part of the customary law, and were, as such, valid. In that connection, however, the rules relating to the swearing of an oath were openly and straightforwardly linked to their canonical origin; it was sufficient to note that they sti\l applied in connection with the subject-matter discussed.

6. Conclusion It is appropriate at this juncture to summarise the various arguments, and a brief summary wi\l suffice. The prohibition of intercession, as laid down in the senatus consultum Vellaeanum, interpreted by the Roman jurists and highlighted by the Emperor lustinian in his so-called lex antiquae and his 56 Groenewegen, De legibus abrogatis, re C. 4, 29, auth. si qua mulier, p. 540: Licet non nisi cum juramento eaedam auth. renunciari posse eidern Frisiae Senatui visum sit ... aliud tarnen moribus nostris obtinet ["Although the Frisian Court takes the view that no renunciation of that authentica can be effected except by means of an oath ... the position in that regard is quite different from our customs and practices"]. 57 C. 4, 29, 23. 58 Van den Sande, Gewijsder Saecken, III, 11, 4. 59 Van den Sande, Gewijsder Saecken, III, 11,3. 60 See 1. H. A. Lokin, in De doorwerking van het canonieke recht na de reformatie, published in: Kerk, Recht en Samenleving, Oldenhuis Papers, pp. 11-30.

6. ConcJusion

83

Novella Authentica si qua mulier, was, in Friesland, faithfully "upheld and followed", as the Frisian jurists themselves put it, together with all its refinements and restrictions. It gave rise to a great many judgments of the Frisian Court, which are also cited as examples in the writings of the Dutch jurists. In the - otherwise subtle - respects in which they diverge from the Hollanders, the Frisians invariably appear to follow the authentic Roman principles, apart from the requirement of an oath in cases of renunciation. The views expressed with regard to the significance of the oath originate from the canon law, which, in that respect, is incorporated into Roman-Frisian law. The introduction on 1 May 1809 of the Code Napoleon in the Kingdom of Holland, and the concurrent abolition of Roman law, saw the abandonment of the Roman rule prohibiting intercession. Although Joannes van der Linden had allowed the existing tradition to subsist in one of the articles of his 1808 draft61 , it did not ultimately appear in the Civil Code, or indeed in any of the other Netherlands civil codes. Such a special rule was thought to be superfluous, and possibly discriminatory vis-a-vis women. As Gaius had previously observed, they were capable of fending for themselves. Consequently, not only the role but also the need for a rule appeared to be dead and buried, since it dated from a discriminatory and thus obscure era. It must, therefore, have come as something of a shock to some of those present when, on 1 March 1996, they heard the newly appointed Professor of Civil Law, R. P. J. L. Tjittes, argue in the Great Hall of the Amsterdam Free University that that need was still very much in existence, and, what is more, that it was in fact taken into consideration in the case-law of various countries. Courts nowadays did not, he said, apply the role to all women but noted that onerous transactions entered into by miscellaneous "relatives" out of "natural love and affection" may sometimes call for judicial intervention. Tjittes entitled his oration "Bezwaarde verwanten" ("Encumbered relatives"). In the absence of any special rule, re course is nowadays had to the doctrine of undue influence - taking the form, in the Netherlands, of abuse of circumstances - and to the concept of mistake. In his oration, Tjittes showed, by reference to the judgment in Van Lanschot v 61 Joannes van der Linden, Ontwerp burgerlijk wetboek [draft Civil Code] 18071 1808, re-issued by J. Th. de Smidt in 1967, 175: Book 3, Tide I, Section 3, ArticJe 3: Om echter voortekomen, dat Vrouwen zich niet ligtvaardelijk als Borgen verbinden, zijn derzelver Borgtogten onbestaanbaar, ten ware de Acte daarvan gepasseerd worde ten overstaan van de Regter, wiens pligt het is, om haar vooraf de kracht en gevolgen der verbindtenis als Borg onder het oog te brengen ["However, in order to ensure that women do not rashly enter into commitments as guarantors, they may not act as sureties, unless the deed entered into by a woman be executed in the presence of the judge, whose duty it is to draw to her attention in advance the force and consequences of her binding herself as a guarantor."] 6*

84 Chapter IV: On women in need of assistance: The prohibition of intercession Bink62 , that the highest court in the Netherlands applies itself in the fonnulation of all sorts of criteria, the origins of which can easily be traced back to those which started to be developed in the time of Consul Velleius Tutor. Can there be said to be any progress in the law?

62 Judgment of the Hoge Raad (Netherlands Supreme Court) of 1 June 1990, NJ 1991,759, with a note by C. J. H. Brunner.

Chapter V

The assignee who did not give notice of the assignment: On assignment On 4 May 1688 Lieutenant Laurens Conter, the creditor of Johannes Sirxma, made an inter vivos assignment to Joannes Smeding of the debt due to hirn from Sirxma. Thereafter, Conter executed a general charge in favour of Mr Hixenius over all his assets, thus including his claim against Sirxma. Sirxma's heir, his wife Ypckjen van Hemminga, paid the debt to (the heir of) Hixenius, thus to the creditor of her creditor. Smeding, as the assignee, protested against this and continued to demand payment from Van Hemminga, on the basis that the assignment agreement had been entered into prior to the execution of the charge. Van Hemminga contested that argument, pleading that, although the assignment agreement had indeed been entered into at an earlier date, Smeding had neither had the assignment registered nor given notice to the debtor, and that the debt therefore still formed part of the assets of the assignor. The crux of the dispute concemed the question of the precise point in time at which an assigned right to repayment of a debt passed to the assignee and became part of his assets. 1

1. Assignment under Roman law The above case calls for consideration of the complex doctrine of assignment under Roman law and the ius commune. There is, in addition, a further reason to expatiate on the concept of assignment, especially in a book on Roman-Frisian law. That reason is to be found in a text written by the Frisian2 jurist Johannes van den Sande. He wrote a monograph entitled De actidnum cessione. which became a leading text both within and outside the provinces of the Republic. Although some writers diverged in various respects from the views expressed by Van den Sande, his text continued to set the standard by reference to which the relevant questions of law were assessed. As he hirnself stated, Van den Sande was the first person who Case No 16564: judgment dated 26 October 1695. Van den Sande was bom in GelderJand, but spent his entire working life in Friesland. I

2

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Chapter V: The assignee who did not give notice of the assignment

ventured to undertake a systematic study of this difficult and complex subject, which no-one had hitherto clarified in a methodical way: difficilis, intricata et a nullo hactenus quod quidem sciam plene vel satis methodice explicata materia. 3 As a representative of the Frisian tradition, Van den Sande diverged hardly at all from Roman law, which had continued to develop, right up until its latter years, a relatively coherent "doctrine" of assignment. In principle, Roman law did not in fact recognise the notion of assignment, or at least not the legal concept nowadays known as assignment, being the transfer of a claim. The Romans had insurmountable objections to what we know as the essential element of assignment, namely the unilateral severance of the relationship between the creditor and the debtor. That is, after all , what happens in the case of an assignment. The creditor, on his own initiative, severs the link with the debtor and allows his place to be taken by a new creditor who enters into a relationship with the debtor. It is true that the debtor is informed of the change of the identity of the creqitor, but he cannot raise any point in that connection and cannot exercise any influence in that regard. That conflicted with one of the foremost principles of Roman law, which regarded the obligation owed as a iuris vinculum or legal bond between two individuals. The person entitled to bring an actio in personam was the person who was linked to the debtor by that legal bond. Such an action was thus directed against a specific individual, who owed legal obligations to no-one other than the party with whom he had contracted. However, there was clearly a need for the recognition by Roman law of the negotiability of rights in personam, and one encounters in the texts examples of claims which were sold, gifted or transferred by way of payment. Instances of transfers by way of payment appear whenever the assignor is indebted to the assignee and offers his right(s) in personam as consideration instead of making payment as originally agreed. That sale transaction was frequently accompanied by a mandate agreement, or mandatum, whereby the vendor authorised the purchaser to collect the debt due and to use the proceeds for the latter's own benefit. Such a mandate in favour of the person to whom it was granted was known as a procuratio in rem suam. The legal position of the purchaser to whom the mandate was given was not very strong. He was, after all , not the creditor, but merely collected the debt as agent for the real creditor, the assignor. Consequently, it remained open to the latter to claim payment of the debt, and if the debtor was unaware of the situation and duly paid up, he discharged his li ability vis-a-vis the purchaser. If, however, the debtor was aware of the sale of the 3 Joannis a Sande Jcti, In suprema Frisiorum curia senatoris, commentarii duo singulares, quorum primus est de actionum cessione ... Leovardiae 1657, hereinafter referred to as Van den Sande, De actionum cessione, Chapter I, No I.

2. Assignment under the ius commune

87

debt and the grant of the mandate, he was required to make payment to the purchaser. Strictly speaking, the debtor had two payment obligations at that point in time, one of them being owed to the "real" creditor, namely the vendor, and the other to the purchaser by virtue of the grant of the mandate. However, he did not really have any choice, since a voluntary payment made to the assignor/vendor in the knowledge of the sale and the grant of the mandate was regarded as a gift. If the vendor nevertheless demanded payment - he was and remained, after all, the only creditor under civil law -, the debtor was placed in an awkward predicament. In such a case, the Praetor came to his aid, providing hirn with a defence, known as the exceptio doli, to the vendor's action. It was regarded as an improper act to seek to collect a debt which had previously been sold to another person. Protection was also afforded against the giving by the vendor of notice to pay or the latter's death. In those two cases, the mandate would become null and void. The purchaser had the option of bringing what was known as an actio utitis, that is to say, an action based on an inherent fiction. The purchaser was artificially deemed to be the creditor, which meant that he was safeguarded against the possibility of the vendor dying or giving notice to pay. In such circumstances, the purchaser could bring the proceedings in his own name. You say that, after a specific sum of money has been handed over to the person designated by you, there are assigned to you, in place of the debt, actions against the debtor for whom you have paid, and you plead that the creditor had died without leaving heirs before you have reached the stage of a litis contestatio in the matter. If all those conditions are fulfilled, you have an actio utilis. 4

Likewise, if the person to whom the mandate had been gran ted died, the right to bring such an actio utilis passed to his heir(s).5 In that way, Roman law managed to make do with the construct of the mandate of assignment. As a result, assignment remained within the scope of the law of obligations and the basic premises of the Roman legal doctrine were maintained. Assignment was regarded as the collection of a debt by a person other than the creditor, with the latter's consent.

2. Assignment under the ius commune The ius commune continued the development of Roman law6 and came to enshrine its mIes in respect of certain points of principle. There was 4 C. 4, 10, 1: Data certae pecuniae quantitatae ei cuius meministi in vicem debiti actiones tibi adversus debitorern, pro quo solvisti, dicis esse mandatas et, antequam eo nomine litern contestareris, sine herede creditorem fati munus implesse proponis. Quae si ita sunt, utilis actio tibi competit. 5 C. 8, 53, 33 pr.

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broad agreement in the various provinces 01' the Republic regarding the way in which assignment came about. An assignment was effected, following Roman law, by an act of pure will, nuda voluntate. That will could be expressed in various forms. First of all, it might manifest itself by way of an informal mandate agreement. 7 The terms cedere actiones and mandare actiones are in those circumstances synonymous. 8 However, it is also possible to assign actions nuda voluntate without a mandate. In that event, the terms cedere actiones and mandare actiones are thus not synonymous; whilst the laUer invariably includes the former, the former does not always include the laUer. The nuda voluntas, which is also required for an assignment without mandate, is principally evident from the prior investive fact of a sale, gift or transfer by way of payment, etc} what is more, it will generally be contemporaneous with the transfer of title; consequently, the sale and assignment of an action will invariably have occurred simultaneously in a single transaction. Voet also subscribed to that view. As a result of the sale of the action, the vendor is bound to assign that action, but such assignment is generally effected informally, or simpliciter. 10 Traditio 6 As to assignment under the ius commune, see, inter alia, J. Wiarda, Cessie of Overdracht van Schuldvorderingen op Naam, Zwolle, 1937, pp. 37-52; F. H. Grosskopf, Oie geskiedenis van die sessie van vorderingsregte, 1960; K. Luig, Zur Geschichte der Zessionslehre, 1966; Susan Scott, Sessie in die Suid-Afrikaanse Reg, 1977, pp. 13-91; Zimmermann, The Law of Obligations, p. 58 et seq.; W. 1. Zwalve, Hoofdstukken uit de Geschiedenis van het Europese Privaatrecht, I Inleiding en Zakenrecht, Groningen, 1993, pp. 280-283. See also Susan Scott, 'n Kritiese ontleding van die ontwikkeling van die Romeins-Hol1andse sessiereg in Suid-Afrika, in: Groninger Opmerkingen en Mededelingen, Magazijn voor LeersteIlige Rechtsvergelijking op Historische grondslag, XIV, 1997, pp. 63-94. 7 Van den Sande, Oe actionum cessione, Chapter 11, No I: ceduntur actiones mandato, vel quavis alia etiam nuda voluntate cedentis et cessionarii ("Actions are assigned by mandate or by any other act manifesting the pure will of the assignor and the assignee"). 8 Van den Sande, Oe actionum cessione, Chapter I, Nos 4 and 5: cum tarnen Modestinus easdem actiones modo cessas, modo mandatas appel1at, non obscure significat nul1am hic different iam esse constituendarn ("Since Modestinus nevertheless refers to the same actions in different contexts as being, on the one hand, assigned and, on the other, mandated, he cIearly means by that that no distinction whatever is to be drawn in that regard"). 9 Van den Sande, Oe actionum cessione, Chapter 11, No 2: Alia quavis nuda voluntate absque mandato ceduntur actiones, modo titulus seu causa, unde voluntas transferendae actionis col1igatur; praecesserit, ex qua utiles actiones in cessionarium transeunt, licet nullum mandatum intervenerit ("Actions are assigned independently of the mandate, equally by an act of pure will, where there has simply been a prior title or cause from which the intention to assign the action may be inferred; on that basis, action based on an inherent fiction are transferred to the assignee, even though there has been no question of any mandate"). 10 Voet, Commentarius ad Pandectas, re O. 18, 4, No 11: venditae actionis effectus est, quod venditor earn actori cedere teneatur, plerumque tarnen simpliciter ...

2. Assignment under the ius commune

89

or delivery is not required, since, according to Van den Sande, rights of action lack a corpus. I I Whilst there was broad agreement in Holland and Friesland as to the way in which an assignment came about, there were profound differences of opinion regarding its legal consequences. The jurists in Friesland, proceeding from the tenets of Roman law, argued that, from the very moment at which title was transferred - let us, for the sake of convenience, continue to take the example of a sale -, the purchaser was vested with the right to bring an actio utilis, by which he could formally identify himself, by way of the fiction, with the vendor/assignor. Huber defines this actio utilis, which he calls a "serviceable claim", as folIows: 12 for we designate as serviceable claims those which, on account of their subtlety, cannot emanate directly and strictly speaking from the law, but which, for reasons of fairness and expediency, are made available for assertion by those who are most c10sely entitled to them." H. • •

No action in the fonn of an actio directa vested in the assignee until a mandatum was conferred by means of a mandate agreement. Thus, for as long as no mandate was conferred, the actio directa remained vested in the vendor/assignor, whilst the purchaser had an actio utilis. In theory, the debtor therefore owed a payment obligation to two different persons; but, as we have seen, he had a defence, in the fonn of the exceptio doli, to a direct action brought by the assignor. If a mandate were conferred, that had to be expressly stated in the instrument of assignment; but, according to Huber, this was very seldom done. The parties generally confined themselves to mentioning the cause of the assignment, by which the existence of the "serviceable claim" was established, such claims being easier and more profitable to assert than areal or direct claim l3 - for upon the death of the assignor, the actio direcla tenninated, but not the actio ulitiS. 14 Nevertheless, the subtle distinction between the two types of action produced one lawsuit. (''The result of the sale of an action is that the seiler is bound to assign that action, albeit that this generally occurs informally ... "). 11 Van den Sande, Oe actionum cessione, Chapter 11, No 9: Porro cum justae et idoneae causae praecesserunt, actiones transferuntur nuda voluntate absque ulla traditione, quam, licet ad translationem dominii aliarum rerum ea sit necessaria, actiones corporum expertes recipere non possunt ("Since, moreover, there has already been a valid and proper conferment of title, actions are transferred by pure will and without any delivery, which cannot occur in the case of actions since they have no corpus, even though such de1ivery is necessary for a transfer of ownership of other things."). 12 Huber, Heedendaegse Rechtsge1eertheyt, III, 3, 20. 13 Huber, Heedendaegse Rechtsgeleertheyt, III, 13, 40. 14 Huber, Heedendaegse Rechtsgeleertheyt, III, 13,38.

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Wilhelm Walcourt and his wife, Francine Floques, were owed a substantial debt by the States of Friesland, arising from transactions concluded by the States at the Frankfurt Fair. Following the death of both of them, Johan Columbier and Michael de Behaine, residing in Frankfurt, acted as their testamentary executors. Since, in 160 I, the collection of the debt presented potential difficulties in that region - the provinces being at war with the King of Spain -, they conferred on Joannes Bernardi, a citizen of Leeuwarden, a "mandate and power of attorney" to collect the debt. In the proceedings at first instance, the States were ordered to pay the sum of 3000 Caroli florins plus the interest assessed. They duly paid the 3000 Caroli florins to Bernardi. The costs and interest were assessed in the same sum by the Rechtbank (District Court), and Bernardi sought to collect that sum also. The States refused to pay, since they had in the meantime discovered that Bernardi had purchased the claim of the gentlemen from Frankfurt and was thus a procurator in rem suam. In other words, the claim had been assigned. In his claim, Bernardi had not referred to the fact that his title to the debt had been purchased, and the States therefore took the view that the assignment was null and void and that Bernardi's capacity to act in the matter was "fabricated". By virtue of the wording used by hirn, Bernardi, who "merely had a mandate and power of attorney", was solely entitled to act on behalf of the assignor, and not in his own name. On those grounds, the States refused to pay the interest and demanded repayment of the 3000 Caroli florins already paid. The Court ruled against the States. It decided that, even where there was no mention of the passing of title or any c1ause indicating that the assignee was acting on his own behalf - that is to say, that he was procurator in rem suam -, the assignment was valid. It so held in its judgment of 31 March 1612. 15

That judgment aeeorded with the praetiee followed at the time. Aeeording to Huber,16 the separate title ereated by an assignment was not expressly stated, being simply assumed: "A having aequired title by virtue of an assignment from B", or "by virtue of an assignment and eonveyanee from B".17

3. The instrument of assignment Referenee is made above to the instrument of assignment, and the question arises: what was the preeise status of sueh an instrument? Did it serve a purely probative purpose, or was it a eonstitutive requirement for the transfer of the claim? Under the Frisian Landsordonnantie (Ioeal deeree), Case No 16486: judgment dated 31 March 1612. Huber, Heedendaegse Rechtsgeleertheyt, III, 13, 40. 17 It was, moreover, revealed in the proceedings that Bernardi had purchased another claim in Frankfurt, amounting to 13 000 Caroli florins, in respect of a debt due to the testators from the "Stad en Ommelanden" (City and County) of Groningen. The purehase price amounted to 6000 Caroli florins. That transaction was likewise to form the subject-matter of a lawsuit, which took place thirteen years later and which is discussed later on in this work. 15 16

3. The instrument of assignment

91

no assignment was to be regarded as valid by a court unless it expressly stated the title to the debt or claim and, if that title was conferred by way of sale, the amount of the price. 18 As we have just seen, the Court did not adhere strictly to that rule. For the most part, the deed of assignment, also sometimes referred to as the "instrument of conveyance", was taken to be the original deed containing an acknowledgement of the existence of the debt and recording the transfer thereof together, possibly, with the conferment of a mandate. In the case of Anskes v Hornstra, the significance of the deed was deterrnined. Sybren Bauckes owed a money debt to Mr Schotanus. On 17 October 1689 the latter assigned his claim to Sibout Siercks Hornstra, who officially notified the debtor of the assignment on 11 January 1690. Some time later, the original creditor, Schotanus, assigned the claim to Hy\cke Hy\ckes. The second assignee thereby obtained physical possession of the original instrument of indebtedness, wh ich had not been handed over to the first assignee. The debtor paid part of his debt to Hy\ckes, but was thereafter sued by Hornstra for payment of the entire debt. Hy\ckes' widow, Uy\ck Anskes, joined in the proceedings as a party supporting the debtor and put forward the defence that she was the sole creditor since she was in possession of the deed containing the acknowledgement of the debt and recording the assignment thereof, the so-called "bylbrieff". Moreover, whilst the debtor had paid nothing to Hornstra, he had discharged part of his indebtedness to her. Hornstra maintained that he was the creditor, since he had giyen notice of the assignment to the debtor. Consequently, the primary issue concerned the point in time at which the assignor's claim had been transferred. Was it when the notice was served, when the deed was handed over or when the debtor made part payment? The Court concurred with the view generally held in Friesland, to the effect that the deed was. to be regarded as having probative value but not as having any constitutive effect. That was the conclusion which had been reached by the court below, and on 18 May 1697 the Court therefore upheld the judgment previously given. The debtor was ordered to pay the entire debt to the first assignee since, according to the Court, the assignor had divested hirnself of the debt due to hirn and had thus been unable to assign it a second time. That being the case, at what point in time did the debt cease to form part of the assets of the assignor? It is apparent from the circumstances that this was when the official notice, or insinuario, was given to the debtor. That was, moreover, the mainstay of Homstra's argu18 Hamerster, Statuten, Ordonnantien, I, 8, 4: "Henceforth, moreover, no assignment is to be accepted in law, even between persons related to each other, unless the cause and title on the basis of which the same was effected are expressly stated; and if the assignment was procured by way of a purchase, the price paid therefor must be stated therein; in the absence of such statement, it will be invalid as aforesaid." Hamerster goes on to observe in that connection: "In the practice followed in these parts, however, it is accepted that, where the cause of the assignment is sufficiently apparent from the circumstances of the matter, it will be accepted as valid, just as if that cause had been expressly stated in the assignment, even though it is not set out word-for-word therein."

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ment: following the service of the notice, the debtor no longer owed any obligation to the original creditor: post insinuatam debitori cessionem suam rem desisse esse integram. ut solvi dein non potuerit cedenti. Or, as was stated in the wording of the judgment: "The answer to be given by the Court of Friesland is that the respondent must be required, in accordance with all proper rules of law ... to defer to the previous judgment, and that the alleged assignment in favour of the appellant was incapable of conferring any benefit on the lauer, in that it took place long after the assignment in favour of the respondent and having regard, moreover, to the fact that the respondent served notice thereof on the debtor on the eleventh day of January 1690, thereby giving rise to a novation of the debt per textum expressum in I. 3 C. de novat.. with the result that the debtor was thereafter not entitled to make payment dicta lege 3 to any person other than the respondent (... ).,,19

4. The constitutio of the Emperor Gordianus The text on which Homstra relied in support of his case, and which was cited by the Court in its judgment, is of crucial relevance to the issue discussed in this chapter, namely the exact point in time at which a debt or claim is transferred. It lies at the he art of the views expressed by Van den Sande. The text in question originates from the Emperor Gordianus and dates from 239 A.D. If the person indebted to you is not made the debtor of your creditor by means of a novation of the debt, and you thus retain the actions against hirn, then you are not precluded from claiming from hirn the sum owed and, in that way, from preventing your creditor from proceeding against hirn, even though you have assigned to your creditor, by way of payment, your action against your debtor, unless a litis contestatio (procedural agreement) has been concluded or your creditor has received any part of the sum owed or has given notice of the assignment to your debtor. 20

Three points in time are referred to in the text as constituting the moment at which the assignor's position ceases to be unassailable, rem integram esse desisse. that is to say, the moment at which the assignee becomes the new creditor. First, it might be the stage in proceedings between the assignee and the debtor at which the litis contestatio was reached, inasmuch as that brought to an end the old relationship (between the assignor and the debtor) and created in its place a new relationship existing between the parties to the proceedings, subject to the debtor being ordered to pay?l Case No 16566: judgment dated 18 May 1697. C. 8, 41, 3 pr: Si delegatio non est interposita debitoris tui ac propterea actiones apud te remanserunt, quamvis creditori tuo adversus eum solutionis causa mandaveris actiones, tarnen, antequarn lis contestetur vel aliquid ex debito accipiat vel debitori tuo denuntiaverit, exigere a debitore tuo debitam quantitatem non vetaris et eo modo tui creditoris exactionem contra eum inhibere. 19

20

4. The constitutio of the Emperor Gordianus

93

Second, it might be when the assignment was in so me way implemented, for example by partial payment being made to the assignee. Lastly, it might be when notice of the assignment was given by the assignee to the debtor. Given that, of the three acts described above, the most common was the giving of notice, or denuntiatio, this represented, in almost all cases, the constitutive point in time at which, in Friesland, the assignee became the new creditor. A different view was taken in Holland regarding the point in time at which the debt or claim was validly transferred, at least according to the writings of Voet. Nostris moribus (according to our customs), says Voet, it is accepted that the entire claim of the assignor ceases to exist as a result of, and thus at the moment of, an informal assignment. This means that it is only the assignee who can force a recalcitrant debtor to pay, even if the debtor has not hitherto been given notice of the assignment. 22 The step described by Voet in expressing that view is a fundamental one. In dramatically severing the link with the assignor, Voet forces assignment, so to speak, into the sphere of the law of propertY, thereby fundamentally altering the way in which assignment is viewed. Assignment ceases to be a matter of the collection of a debt by a person other than the creditor, or, if need be, the creation of a new creditor alongside the original one; instead, it involves the transfer of a debt or claim in the same way as the transfer of a piece of property. And that, indeed, is the conclusion drawn by Voet when, a little further on in his argument, he declares, with reference to a double assignment: "quia cessio in actionibus traditionis loco est" ("because assignment takes the place of delivery,,).23 As to the meaning and significance of the Iitis contestatio, see also Chapter XII. Voet, Commentarius ad Pandectas, re D. 18, 4, No 15: Plane nostris moribus circa cessas actiones magis placuit, jus omne cedentis cessione extinctum esse, ne amplius cedentem, sed solum cessionarium, compellere posse debitorem invitum ad solutionem, Iicet necdum debitori denunciatio per cessionarium facta sit, ne solvat cedenti ("According to our customs, the clearly prevailing view is that, as regards the assigned action, the whole of the assignor's entitlement is brought to an end by the assignment, and that a recalcitrant debtor can no longer be forced to pay by the assignor but only by the assignee, even though the assignee has not yet given notice to the debtor that the latter is no longer required to make payment to the assignor"). 23 Voet, Commentarius ad Pandectas, re D. 18, 4, No 17, ult.: cum insuper moribus nostris jus omne cedentis pro extincto haberi post primam cessionem; magis est, ut hic idem, quod in re corporali duobus vendita Romanis placuit, admittatur; illum nempe, cui priori actio cessa est pretio soluto aut fide de eo habita, in exigendo nomine cesso oportere potiorem esse, maxime, quia cessio in actionibus traditionis loco est ("Since, moreover, according to the customs prevailing in these parts, all the rights of the assignor are regarded as null and void after the first assignment, it must a fortiori be correct to apply in this connection the view taken by the Romans upon the sale of a physical thing to two persons, namely that the person to whom the action is first assigned following payment of the purchase price or 21

22

94

Chapter V: The assignee who did not give notice of the assignment

Voet was not the only person to have put forward the view expressed by hirn; he drew support for it from the ideas of earlier writers, especially Antonius Faber (Antoine Favre), who was fiercely attacked by Van den Sande. "I really cannot imagine", laments Van den Sande, "that anyone could stray further from the realm of truth.,,24 For according to Roman law, even after an assignment, "the actio directa cleaves to the bones and entrails of the creditor and can no more be separated from his person than the soul from the body".25 That meant, inter alia, that even after the assignment the assignor's creditors could still seek to attach the debt due to hirn by way of satisfaction of the debts which he owed to them. According to Voet and the jurists of Holland, that possibility no longer existed once the assignor ceased to be the person entitled. According to Van den Sande, however, that possibility continued to subsist - that is to say, until the time of a denuntiatio or giving of notice of assignment _,26 because the assignor remained entitled even after the assignment. lt was not until the point in time at which notice of the assignment was given that the debt or claim was regarded as having ceased to form part of the assignor's assets. That was, moreover, the defence pleaded by the widow Van Hemminga in the case with which this chapter commenced. The alleged assignment could not [she argued] be raised as a plea against her, since, at the time when the said payment was made, no demand for payment had been made to the defendant pursuant to that assignment, nor had any payment been made to the assignee, nor had any notice of the assignment been served on the defendant, that being necessary in order for the defendant to be capable of the glVlng of a guarantee must have the strongest claim to demand the debt assigned, primarily because, in the case of actions, assignment takes the place of delivery"). 24 Van den Sande, De actionum cessione, Chapter XII, No I: ... ita se involvit, ut vix sciam, an quisquam longius a veritatis scopo aberrarit. 25 Van den Sande, De actionum cessione, Chapter XII, No 2: ... quia cessione non admittitur actio directa, quae primi creditoris ossi bus adeo inhaeret, ut ab eo separari non magis possit, quam anima a corpore. See Zimmermann, The Law of Obligations, p. 58. An earlier use of the metaphor is to be found in Azo, Summa codicis, re C. 4, 10; see E. Genzmer, Nomina ossibus inhaerent, published in M61anges Philippe Meylan, 1963, I, p. 159. 26 Van den Sande, De actionum cessione, Chapter XII, No 10: Quod si creditor cedentis re integra vel ante denuntiationem curaverit arrestari numrnos in manibus debitoris, cujus nomen cessum est, hic vi arresti ... est praeferendus cessionario, in quem ante denuntiationem jus efficaciter translatum est, sed actio apud cedentem mansit ("But if, before notice of the assignment is given and whilst the debt or claim is still intact, the creditor of the assignor has sought to seize the claim to the debtor whose debt has been assigned, then that creditor must, by virtue of that seizure, rank before the assignee, to whom no right of any kind can in fact be said to have been transferred prior to the giving of notice of the assignment, the action having remained vested in the assignor himself').

5. Personal knowledge on the part of the debtor

95

not having to pay the vendor or someone acting on his behalf I. 3 e. de novat.

(e.

8, 41, 3).

In its judgment of 26 October 1695 the Court accepted Van Hemminga's defence. Since Smeding had not served notice of the assignment, the Court considered that the actio directa remained vested in the assignor, that the assignor continued to be entitled to the debt and that the debtor could thus make payment to the holder of the general hypothec. It held, in accordance with an argument already pleaded by Van Hemminga, that payment to the creditor creditoris discharged the debtor. The veracity of that conclusion was borne out by three texts from the Digests which had all been cited by the defendant in support of her case: the concluding passages in D. 44, 4, 6 and D. 3, 5, 35 and the text of D. 13, 7, 11, 5, which confirmed quod solutio creditori creditoris facta adferret liberationem. 27 In Holland, an assignor ceased to be entitled from the moment at which the assignment was effected, and Smeding would thus have been recognised as the creditor, but Van Hemminga could nevertheless have discharged her indebtedness by paying the creditor of the assignor if she had no knowledge of the assignment - which was, indeed, the case.

5. Personal knowledge on the part of the debtor Thus, the three acts summarised in the constitutio of Gordianus (C. 4, 41, 3) are decisive for the purposes of "disentitling" the assignor: litis contestatio, payment of part of the debt to the assignee and denuntiatio or the service of notice on the debtor. lf any of those three things has occurred, the debt or claim technically ceases to be intact: res integra esse desiit. In the event of that happening, the assignor is deemed to have lost the right to claim repayment of the debt due to hirn, and that right is regarded as having passed to the assignee?8 That is not the end of the matter, however. What is the position where it is apparent that the debtor has gained knowledge of the assignment from his own sources but has not yet been officially notified of it? In such circumstances, can he still discharge his obligation by making payment to the assignor?29 This is not a purely theoretical ques27 Translation: " ... that payment made to the creditor's creditor operates to release the debtor from his/her indebtedness". 28 Van den Sande, Oe actionum eessione, Chapter XII, No 11: ... quando igitur res integra esse desiit, ornne Jus exaetionis eedenti abreptum et in eessionarium intelligitur esse translatum (" ... eonsequently, where the claim has ceased to be intaet, the assignor is deemed to have lost all rights to demand repayment, and those rights are regarded as having passed to the assignee"). 29 See the unpublished notes of Herman Cannegieter, Oe differentiis juris Romani et Frisiei seeundum ordinem pandeetarum aue tore Westenbergio, p. 62, re O. 18,4 (MS 1085, Provineial Library, Leeuwarden).

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Chapter V: The assignee who did not give notiee of the assignment

tion, since it arose in the context of an interlocutory judgment in the same proceedings between Joannes Smeding and Ypkien van Hemminga. Smeding, who, as assignee, had aequired a claim against Van Hemminga, had omitted to notify her to that effeel. When Van Hemminga paid the (creditor of the) assignor, Smeding asserted that Van Hemminga had been weil aware of the assignment even though no official notice had been given to her. Hemminga relied on the argument that it was the time of service of notice, or denuntiatio, which was decisive and that private knowledge of the assignment was immaterial in that regard. The Court decided that knowledge of the assignment, regardless of the souree from whieh it was obtained (acquisita aliunde), was enough to prec1ude the debtor from diseharging his/her indebtedness by making payment to the assignor. Consequently, if Smeding was able to prove that Van Hemminga had been aware of the assignment, then he would be entitled to demand payment from her. It appears from the judgment of 18 Deeember 1694 that Smeding was unable to prove his assertion. 30

The Court's judgment is remarkable - albeit fully in conformity with the views expressed by Van den Sande - in that, according to the strict doctrine applying in the matter, the moment at which the denuntiatio takes place represents the constitutive point in time at which entitlement to the debt passes. The judgment is in fact more in line with the custom prevailing in Holland, where the point in time at which such entitlement passed was regarded as coinciding with the moment at which the assignment came into existence. From that moment on, the debtor was regarded as being obliged to pay the assignee, unless he had no knowledge of the assignment. In the latter event, he remained at liberty to discharge his indebtedness by making payment to the assignor. If, however, he acquired knowledge of the situation from any source, that option ceased to be open to hirn. That was the tenor of the consistent doctrine as applied in Holland. The position might be said to be different in Friesland, where the emphasis was placed entirely on the point in time at which notice of the assignment was served. Yet Van den Sande too equates knowledge on the part of the debtor with notification, which means that the mere pos session of knowledge causes "the debt or claim to cease to be intact": solam hanc scientiam efficere ut res integra esse desinat?l How does Van den Sande arrive at his view? Not without considerable deliberation, he himself says, since there is such a Euripus of opinions on this notorious issue, with so many swirling, uncerCase No 16563: judgment dated 18 December 1694. Van den Sande, Oe aetionum eessione, Chapter XII, No 18: ... si debitor absque denuntiatione ipsius eessionis, aliunde reseiverit eessionem, solam hane scientiam efficere, ut res integra esse desinat ("If the debtor, without having been officially notified of the assignment, has himself acquired knowledge of the assignment from another source, the mere possession of that knowledge eauses the debt or claim to cease to be intact"). 30 31

5. Personal knowledge on the part of the debtor

97

tain currents to negotiate, that there is no place in which one can safely anchor. 32 The anchorage which Van den Sande finally chose was found by hirn in Roman law, in the praetorian protection afforded to debtors in the form of the exceptio doli. 33 That allowed a debtor who had knowledge of the assignment to raise a defence against an action by the assignor for payment of the assigned debt. There is no excuse whatever, says Van den Sande, for letting off scot-free a debtor who, in the knowledge that the debt has been assigned and that he is protected by the praetor against an action by the assignor, nevertheless chooses to pay the assignor rather than the assignee. Such a debtor abu ses the protection afforded to hirn. But does not that view, which had previously been advanced by Bartolus, conflict with Gordianus' well-known text, which expressly refers to the service of notice? According to Van den Sande, it does not. Gordianus' text is concemed with circumstances in which it is established beyond any doubt that the debtor is aware of the situation. Where, however, a person has acquired knowledge of the assignment in some other way, he no longer needs to be made aware of it, as is apparent from the concluding wording of D. 19, I, 1: neque certiorari debuit qui non ignoravit. 34 A second argument is inferred by Van den Sande from D. 2, 15, 17: [Suppose that] after the vendor of an inheritance had mandated his actions to the purchaser, he made a composition with a person indebted to the estate who is unaware of the sale of the inheritance. If the purchaser of the inheritance wishes to claim from that person the debt owed by hirn, the latter must, on account of his ignorance of the situation, be granted the benefit of a defense on the ground of the composition. 35

32 Van den Sande, De actionum cessione, Chapter XII, No 17: ... adeo ut in tanto opinionum Euripo non sit in quo tuto anchora figi possit. The Euripus is the narrow channel between Attica and Euboea, notorious for its fickle currents. According to legend, Aristotle is said to have drowned in the Euripus because he was unable to solve the riddle of the currents. 33 The praetorian protection is based on D. 13, 7, 18: Si convenerit, ut nomen debitoris mei pignori tibi sit, tuenda est a praetore haec conventio, ut et te in exigenda pecunia et debitorern adversus me, si cum eo experiar tueatur. ergo si id nomen pecuniarium fuerit, exactam pecuniam tecum pensabis, si vero corporis alicuius, id quod acceperis erit tibi pignoris loco ("If we have agreed that the claim against my debtor is to be used as security for my indebtedness to you, that agreement must be protected by the praetor, in the sense that, on the one hand, he is to protect you when you claim the money and, on the other hand, that he is to protect the debtor as against me if I bring proceedings against that debtor. If the claim is a pecuniary claim, you may therefore offset the sum of money received against your claim against me; if, however, the claim relates to some corporeal object, you are to retain as security that which you have received"). 34 Translation: " a person who was not unaware of the situation did not need to be notified". See Van den Sande, Oe actionum cessione, Chapter XII, No 18. 1 LokiniJanscnlBrandsma

98

Chapter V: The assignee who did not give notice of the assignment

It folIows, conversely, from the protection afforded, on account of his ignorance, to a debtor who is unaware of the situation that a debtor is not eligible for protection if he has knowledge of the arrangement entered into. By the same token, argues Van den Sande, such a debtor should not be afforded any protection if he is aware of the assignment. Thus, knowledge on the part of the debtor works exclusively to his disadvantage; in other words, it means that he can no longer discharge his indebtedness by making payment to the assignor. Conversely, the debtor cannot derive any rights from his knowledge of the assignment, since an assignment is effected in the interests of the assignor or the assignee or both of them, but not in the interests of the debtor. Thus, as long as the "transfer" has not yet taken place - that is to say, in Friesland, so long as the debt or claim remains intact (res integra est) -, the parties may agree between them to refrain from completing the assignment. In such circumstances, the debtor cannot rely on his knowledge of the assignment in order to bring it into existence. That was the point at issue in proceedings conducted in 1625 between Joannes Bemardi and the Staten van Stad en Lande (States of the City and County of Groningen). This was the same Bemardi who, thirteen years earlier, had triumphed in a lawsuit against the States of Friesland. 36 As had previously been revealed in the 1612 lawsuit, Bemardi had purchased from the Frankfurt creditors, for the sum of 6000 Caroli florins, a claim against the Staten van Stad en Lande. However, the debt owed by the States to the Frankfurt creditors in fact amounted to 13000 Caroli florins. On account of the state of war afflicting the Provinces, the creditors had thought it more prudent to sell and assign the claim. A short time afterwards, they started to regret the assignment and revoked it, with Bemardi's consent. Perhaps the prospects of obtaining payment had improved on account of the twelve-year truce between Spain and the Provinces (1609-1621). At any rate, the arrangement was now somewhat different. Henceforth, Bemardi acted as a mere mandatary on behalf of the former assignor - in short, as a procurator in rem alienam - and claimed on that basis the full sum of 13 000 Caroli florins. The States protested against this, arguing that they had knowledge of the assignment and that it could not therefore be revoked "just like that". They submitted that they had an interest in the assignment, by virtue of the so-called lex Anastasiana. That constitutio of the Emperor Anastasius, dating from 506 A.D., provided that an assignee could never claim from the debtor more than he himself had paid to the assignor together, naturally, with the interest on that sum. 37 Thus, by virtue 35 D. 2, 15, 17: Venditor hereditatis emptori mandatis actionibus cum debitore hereditario, qui ignorabat venditam esse hereditatem, transegit: si emptor hereditatis hoc debitum ab eo exigere ve\it, exceptio transacti negotii debitori propter ignorantiam suam accommodanda est. 36 Van den Sande, Gewijsder Saecken, m, 7, 2: Case No 16495: judgment dated 25 February 1625.

5. Personal knowledge on the part of the debtor

99

of that lex, Bernardi was precluded from c1aiming more than 6000 Caroli florins plus interest. On those grounds, the States contested the revocation of the assignment. In addition, they were distrustful of Bernardi's new status as simplex procurator, and maintained that he had remained a procurator in rem suam. The Court ruled against the States. It held that, as long as notice of the assignment had still not been given to the debtor and neither of the other two acts referred to in the constitutio of Gordianus had been performed - as was the case, according to the Court -, the claim was still intact (res integra esse), which meant that the parties were quite at liberty to revoke the assignment by mutual consent. The fact that the States had knowledge of the assignment was irrelevant in that regard, since the assignment was not intended to work to the advantage of the debtor. That was the decision reached by the Court on 25 February 1625. The States lodged an application for a review, as a result of which the case was on ce again considered and determined. However, those conducting the review came to the same conclusion as the Court and upheld the judgment, together with the Court, on 3 September 1627.

In his treatise, Van den Sande went still further, arguing that, up until the moment when notice of the assignment was given, the assignor was entitled to revoke the assignment mandate, even against the will of the assignee, if, for example, one of the conditions goveming the sale of the action remained unfulfilled. 38 In Holland, such a unilateral revocation was regarded as no longer possible - after all, the transfer of the claim had taken place and it was thought that, in such a case, the assignor was required to bring a personal action against the assignee. 39 37 C. 4, 35, 22 pr.: Per diversas interpellationes ad nos factas comperimus quosdam alienis rebus fortunisque inhiantes cessiones aliis competentium actionum in semet exponi properare hocque modo diversas personas litigiorum vexationibus adficere, cum certum sit pro indubitatis obligationibus eos magis, quibus antea suppetebant, sua vindicare quam ad alios ea transferre velle. Per hanc itaque legern iubemus in posterum huiusmodi conamen inhiberi ( ... ), ita tarnen, ut si quis datis pecuniis huiusmodi subierit cessionem, usque ad ipsam tantummodo solutarum pecuniarum quantitatem et usurarum eius actiones exercere permittatur, licet instrumenta cessionis venditionis nomen inserturn sit ("We have learned from various petitions made to our courts that certain persons, covetous of the property and fortune of others, encourage the transfer to them of debts and claims belonging to others, and in that way threaten diverse people with legal proceedings, albeit that it is quite certain that, in the case of undisputed claims, the persons previously entitled to them prefer to claim the debts rather than to transfer them to another. Consequently, we hereby decree by this law that that practice is in future to be prevented ( ... ) and that, accordingly, any person to whom, in return for payment, a claim has been assigned is to be permitted to bring an action only up to the amount of that sum of money (i.e. the amount paid by hirn), even though the expression 'sale' is recorded in the deed of assignment". 38 Van den Sande, De actionum cessione, Chapter XII, No 7. 39 Voet, Commentarius ad Pandectas, re D. 18, 4, No 16: Porro actionis cessionem seu mandatum in praejudicium cessionarii non posse revocari, usque adeo verum est, ut nec assentiendum sit Sandio de cessione action. cap. 12 num 7 ... 7"

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Chapter V: The assignee who did not give notice of the assignment

The extent to which recourse was had to Roman law in connection with the complex issues raised by assignment is weil illustrated by the lawsuit brought by Frans van Eysinga van Burrnania against Suzanna Mans. That case dates from 1716, and concemed the following: 4o Frans van Eysinga van Burmania, the Official Forester and Bird Warden of Friesland, was short of money. On 6 February 1711 he borrowed from Mr Harmannus Syburgh a large sum, which he hirnself c1aimed to amount to 638 Caroli florins, in return for the payment of interest at the an nu al rate of 5 %. He partially repaid that debt in instalments over the course of 1711. On 2 February 1712 Syburgh sold and assigned the balance of the debt to Franciscus Frisius, an advocate at the Court of Friesland, for the sum of 398 Caroli florins. The remainder of the debt was paid by Van Eysinga to Frisius during the course of 1712. It presently emerged that members of Van Eysinga's family had already paid off portions of the debt. Van Eysinga then sought to reclaim the amount overpaid (231 Caroli florins, 3 stivers and 2 pence) by way of condictio indebiti, and brought an action against Frisius, the assignee. Syburgh had died in the meantime, and Frisius in turn brought a third-party claim in the proceedings against Syburgh's widow and heir, Suzanna Mans. The proceedings concerned, in addition to the validity of the payments, that of the assignment. Suzanna Mans argued that the assignment was valid, since Van Eysinga had been given notice of the assignment at the time and had been instructed to pay the outstanding sum to Frisius. It was also established that Van Eysinga had paid too much. However, the Court, "having duly weighed up and considered all the circumstances", declared the plaintiffs claim "inadmissible"; in other words, it was dismissed. According to Beucker, Van Eysinga had brought his case against the wrong person. The condictio indebiti proceedings should have been brought not against the assignee but against the assignor. That judgment was based on a somewhat obscure text in the works of Papinian: "Where a creditor has given instructions that the debt due to hirn is to be paid to his mandatary and too much money is paid, a claim may be brought against the mandatary on the ground of payment not owed. But if he has given a specific instruction requiring payment of a given sum which is later found to be too great, the action founded on the payment not owed must be directed against the person who conferred the mandate; and that right of action will not be regarded as having lapsed if proceedings are unsuccessfully brought against the mandatary.,,41 existimanti, revocari posse cessionem actionis, quoties paritum non fuerit conditionibus venditioni et cessioni nominis appositis ("It is so c1early the case that an assignment of an action, or a mandate relating thereto, may not be revoked to the detriment of the assignee, that it is impossible to concur with Van den Sande, who, in Chapter XII, No 7 of his book on assignment, expresses the view that an assignment of an action may be revoked so long as the conditions goveming the sale and assignment of the claim have not been perforrned"). 40 Case No 16585: judgment dated 31 March 1716. Case-file. The case is also described in Beucker, Rerum judicatarum, Chapter LXXXVI. 41 D. 12, 6, 57, I: Creditor, ut procuratori suo debitum redderetur, mandavit: maiore pecunia soluta procurator indebiti causa convenietur; quod si nominatim, ut maior pecunia solveretur, delegavit, indebiti cum eo qui delegavit erit actio, quae non videtur perempta, si frustra cum procuratore lis fuerit instituta.

6. Conclusion

101

In this case, the assignor had conferred on the assignee a mandate to collect his debt - a procuratio in rem suam - and had in that connection given the debtor an instruction, or delegatio, to pay the amount covered by the assignment to the assignee; this subsequently proved to be too much. In those circumstances, the assignor was, in law, the only person who could be sued. But surely, it might be argued, the assignor, Suzanna Mans, had been joined in the proceedings: did she not thereby become a party? No, says Beucker, citing the initial wording of a fragment from the works of Ulpian: "Since involvement in the proceedings as a defendant means that one is equated with the party originally sued ... ,,42 Beucker concludes from that passage that the party joined, Suzanna Mans, appeared in the proceedings for and on behalf of the assignee and not on her own behalf. Thus the judges adhered forrnally and strictly to the letter of Roman law and dismissed Frans van Eysinga's action on 31 March 1716. He was required to start fresh proceedings against Suzanna Mans, since Papinian expressly states that the right of action against the assignor did not lapse. Frans van Eysinga undoubtedly tried his luck a second time. However, it appears probable that he did not actually have to go as far as to bring another lawsuit, since history has left no trace of any second action.

6. Conclusion All in all , we ean see that Frisian law adhered more faithfully to the texts of Roman law than did the system of law applying in Holland. It preserved the assignor's rights for as long as the debt or claim remained "intaet" (res integra esse). On ce it eeased to be integra, for example as a result of the service of notiee on the debtor, but also by reason of knowledge aequired by the debtor from another source, the assignor was no longer entitled to eolleet the debt and the debtor eould no Ion ger discharge his indebtedness by paying the assignor. He was required to pay the assignee, who was the only party entitled to sue if the debtor failed to pay. Thus, whilst in Friesland the "conveyance" of the debt or claim might occur at various points in time - upon the service of notice, litis contestatio, part payment or the acquisition of knowledge of the assignment -, that point in time was fixed and invariable in Holland. lt was the moment at which the assignment itself was effected - in other words, the moment of the exercise of pure will or nuda voluntas, whieh manifested itself by way of an informal sale agreement, gift or conferrnent of a mandate. Whilst the 1838 Burgerlijk Wetboek (Civil Code) endorsed the point in time applying in Holland (albeit subject to the requirement of a deed of assignment manifesting the nuda voluntas), Article 3.94 of the Burgerlijk Wetboek introduced in 199243 enshrined the giving to the debtor of notice of the assignment as a 42 D. 3, 3, 51, I: Quoniam tarnen defendere est eandem vicem quam reus subire ...

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Chapter V: The assignee who did not give notice of the assignment

constitutive requirement. Unless notice is given, there can be no valid transfer of the debt or claim. In that respect, the new Burgerlijk Wetboek follows the Frisian way of thinking.

43 Article 3:94, first sentence: "In cases not falling within the scope of the previous article, entitlement to exercise rights against one or more specific persons may be conferred by a deed executed for that purpose and by the service of notice thereof on those persons by the transferor or transferee."

Chapter VI

"Mobilia habent sequelam": Hypothecs on cows and horses or: on Friesland, where the jus Romanum is closely observed 1. A black-starred mare Friesland honours a father and a mother who together form an unlikely couple. In 1954, the Frisian Stadholder Count Willem Lodewijk, affectionately known as "Os Heit" ("our Father"), whose statue had been unveiled in Leeuwarden in 1906, was joined by "Os Mem" ("our Mother") - only in the form of a bronze statue of a cow, it is true, but a significant monument nevertheless. In erecting that statue, the Frisian cattle-farmers were honouring the fount of their prosperity. It would not be inappropriate for the lawyers of Friesland to lay a wreath at the foot of it, since it comes as no surprise to leam that a people who erect astatue of a cow should also, on numerous occasions, have gone to law about their cattle. Thus, on 22 February 1718, the Court of Friesland set aside a judgment delivered by the "Nederreghter" (Lower Court) of Dokkum and ordered Timotheus Heringa, "salt burner, of Dokkum", to return a "black-starred mare" or alternatively to pay to the appellant and plaintiff in the proceedings at first instance, Dr Jacobus Fenema, town clerk of Dantumadeel, "eight and sixty thalers, and three and twenty stivers, with interest thereon".1 On 23 July of that year, the Dokkum municipal court had delivered its judgment in the matter, in which it rejected Fenema's claim. Fenema, in his capacity as town clerk of Dantumadeel, had acted as vendor at a public auction, held on 31 (sie) September 1713, of horses belonging to Lieuwe Jans? The purchaser was a certain Romke Pytters Boitsma, and the purchase price amounted to 68 thalers and 23 stivers. The purchaser failed 1 Case No 10415. See Huber, Observationes rerum judicatarum, Obs. XXVII, pp. 90-97. 2 See Huber, Observationes rerum judicatarum, Obs. XXVII, p. 90: "Secretarii nostrates ita vulgo dicti, sive Scribae qui curant Acta judiciorum in Urbibus & Praefecturis agrestibus, etiam solent auctione publica vendere res mobiles rusticorum, suo periculo, ... " ("Our secretaries, as they are generally known, or scribes who attend

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Chapter VI: "Mobilia habent sequelam": Hypothecs on cows and horses

to pay that sum, and Fenema sought, without success, to recover the money from hirn. Fenema subsequently discovered that the particular horse which had been sold was in the possession of the defendant, Timotheus Heringa. As was customary at that time, the clerk had insisted on the execution, by way of security for the purchase price, of a general charge (hypothec) over all the purchaser's property and of a special charge over the item sold. Fenema now sought to enforce against Heringa, as the person in possession of the horse sold, his hypothec in relation to it. However, the latter refused to deliver up the horse, and Fenema was therefore left with no alternative but to bring proceedings be fore the Dokkum Lower Court and, subsequently, the Court of Friesland in Leeuwarden. The central issue in those proceedings was whether a hypothec in respect of a chattel could be enforced against a third party who had acquired possession of the chattel concerned, that is, whether such a hypothec remained effective once the chattel in question ceased to be in the possession of the debtor. In short, the point at issue concerned the effect of a hypothec on a chattel as against third parties (i. e. whether a "droit de suite" attached to it): could it be said that mobilia habent sequelam per hypothecam? It was a hotly contested issue that the Court was called upon to determine.

2. Roman law or Germanie law? Under Roman law, it was considered self-evident that a hypothec could be created over a chatte\. The position was the same in relation to a pledge of immoveables. In Roman times, the distinction between the two types of security right was not based to the same extent as it is today on the difference between moveable and immoveable property. Instead, that distinction concerned the difference between a form of security without possession of the property charged and a form of security requiring the debtor to hand over to the creditor possession of the property thus encumbered. In other words, a right of pledge, or pignus, was in principle secured by handing over the property to the creditor, whereas a hypotheca allowed the debtor to retain possession of the property charged. Just to complicate matters, both types of right continued to be known and referred to generally as "pledges". 3 This meant that it was equally possible, under Roman law, to pledge chattels or to hypothecate them. Consequently, a form of security in respect of chattels, without the handing over of possession of them, was available in the towns and distriets to the drawing-up of legal acts, also frequently engage in the sale at public auction of the chattels of farmers, at their own risk, ... "). 3 See Lokin, Prota, Z68.

2. Roman law or Germanic law?

105

to a debtor who wished to continue using his property. A hypothec could be created quite simply by mere agreement. No publicity of any kind was required in order for a hypothec to be granted. The right which it created was nevertheless a right in rem which was effective as against third parties. A "droit de suite" attached to a hypotheca, and it could thus be invoked against any person in possession of the property charged, regardless of the good or bad faith of the latter. Especially in the case of chattels, it could easily happen, of course, that the property in question found its way into the possession of a third party. Because of the absence of publicity, the likelihood was that many third parties would be unaware of such an encumbrance in rem. None the less, under Roman law a hypothec invariably operated against third parties, pursuant to the maxim: mobi/ia habent sequelam. That term was formulated in later times, when its application no Ion ger appeared to be so self-evident. Where a person in possession of a chattel wished to grant a right of security in respect of it, but wanted to retain the use of it for hirnself, there was yet another option open to hirn. For whilst it was a requirement of the creation of a right of pledge that the creditor had to be given pos session of the chattel concemed, the question clearly arose as to whether it might not be possible for possession to be given in such a way that the person giving it retained actual control of the property in question. In short, was delivery of the property constituto possessorio (i.e. constructive delivery) sufficient in order to establish a right of pledge? That question was answered in the affirmative by Paul in D. 13, 7, 37. If I have hired out to its owner ?tn item of property which has been pledged to

me, I retain possession by virtue of the hiring out, because the debtor did not have possession of the thing in question before he hired it. For, on the one hand, I have the intention of retaining possession and, on the other hand, the hirer does not have the intention of acquiring it. 4

The pledgee remained the person in possession of the thing pledged, even if he hired it out to the pledgor after the right of pledge had been created. It was of course also possible to bring about that state of affairs straight away, simultaneously with the creation of the right. s Thus, the pledgor was not required actually to hand over the thing pledged. The giving of possession, in whatever form, was enough. 6 This meant that both pledges and hypothecs offered the possibility of what we now term an 4 D. 13, 7, 37: Si pignus mihi traditum locassem domino, per locationem retineo possessionem, quia antequam conduceret debitor, non fuerit eius possessio, cum et animus mihi retinendi sit et conducenti non sit animus possessionem apiscendi. 5 See D. 13, 7, 35, l. 6 This is a source of controversy amongst Romanists (see, for example, Jörs-Kunkel-Wenger-Honsell-Mayer-Maly-Selb, Römisches Recht, 1987, p. 200, note 9), but

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"undisclosed" fonn of security in respect of chattels, operating against third parties. The protection of third parties was a concept foreign to Roman law. A right in rem operated without restriction against third parties, even those acting in good faith. The only protection afforded to a third party acting in good faith was the right to raise a plea of prescription. In the case of rights of pledge, such a plea, if successful, resulted in the lapsing of the right. The interests of third parties were only indirectly protected, since the concealment of rights of pledge in r.elation to an item of property was a punishable offence. The offence in question was known as stellionate, and was liable to the imposition of severe penalties. Not only rights in rem other than ownership, the so-called iura in re aliena, were regarded as having unimpaired effect in rem; this was the position as regards ownership as weil. For example, the owner of a chattel which had come into the possession of a third party was entitled to demand its return from the latter, even where the third party concerned had acquired the chattel in good faith from a person to whom the owner had himself handed it over. To that end, the owner could bring an action in rem, based on his ownership of the chattel in question: the rei vindicalio, or action for recovery of possession. Thus, the nemo dat quod non habel rule was applicable without exception. A person could not transfer to another person greater rights in property than those wh ich he himself had: Nemo plus iuris ad alium lransferre polest, quam ipse haberet. 7 According to what is known as Gennanic law, the position as regards chattels appears to have been completely different. 8 Gennanic law drew no distinction between ownership and pos session, and did not, therefore, recognise the concept of an action in rem such as the Roman rei vindicatio, which was based on that distinction. For, by exercising that right of action, an owner claims possession of his property. However, that presupposes the existence of a legal system in which a distinction is drawn between ownership and possession, with the possibility of property being in the pos session of a person other than its owner. According to the law as laid down in, for example, the Sachsenspiegel, however, the person regarded as the proprietor of a chattel was the person having what was known as the "Gewere" or seisin. That "Gewere" was attributed to the person having actual pos session of the property, that is to say, not necessarily possession in the sense apthe text in question is interpreted in that way by the authors of works on the ius commune. 7 D. 50, 17, 54. 8 See, as regards the following passages, W. J. Zwalve, Hoofdstukken uit de Geschiedenis van het Europese Privaatrecht, I: Inleiding en zakenrecht, Groningen, 1993, pp. 81 et seq., 121.

2. Roman law or Gennanic law?

107

plied to the tenn by Roman law but actual control over it. Such actual control conferred "Gewere", and the "Gewere" conferred a right to protection against interference with it. In tenns of Roman law, this may be said to equate to possessory actions, on the understanding that a person could be said to be in possession where he had actual control over the property in question, even though, under Roman law, such actual control involved no more than the fact of holding that property. Even the mere holder of property had "Gewere", and was entitled to claim the protection which it provided. Thus, the basis of such rights of action lay not so much in the protection afforded by the right to the property in question as in the protection against disturbance of actual possession. Consequently, there was a sort of action in tort against such disturbance. According to the notions underlying the law set out in the SachsenspiegeL, the right to property was the same as actual pos session of it, and this was protected with the aid of actions against any person who unlawfully interfered with such possession. Suppose that the person whom we may call the owner had handed his property over to someone who was to "hold" it. In those circumstances, the "owner" could definitely be said to have a better right to actual pos session of the property than the "holder", but he could assert that right only on the basis of the contract which he had concluded with the latter. If the "holder" had alienated the property to a third party, the "owner" had only a contractu al right of action against the "holder"; he did not have any right of action against the third party, since the third party had not disturbed his actual pos session of the property in question. Nor did he have such a right of action against the "holder", since the "owner" had himse\f handed over actual pos session of the property to the "holder". The third party had acquired the "Gewere", and the "owner" was required to seek to recoup his loss from the person to whom he had entrusted the property and to whom he had handed it over, pursuant to the maxim "Hand wahre Hand" or "let hand indemnify hand". The good faith of the third party played no part, in principle, in all of this. There could not really be said to exist a system for the protection of third parties, but rather a different system of possession and ownership, the consequence of which was that, in circumstances such as those described, there was no right of action against a third party. Nor, indeed, was there any need for such a right of action, since the "owner" could seek relief from the "holder". The situation was different in the case of theft. An "owner" from whom property was stolen could self-evidently claim against the thief for disturbance of his actual possession, by means of an action based on that tort. Moreover, the "owner" had such a right of action against any third party who held "his" property, since any third party withholding actual posses-

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sion of stolen property from its "owner" was acting unlawfully and was interfering with his possession of it. 9 Thus, in the case of theft, possession of the property was obviously unlawfully withheld from the "owner", whereas, in the case of its being voluntarily handed over to a "holder", that was not the position. Even in that case, however, there could not be said to exist any right attaching to the property to which, as such, protection was afforded. Otherwise than in cases of loss or theft, therefore, an "owner" could not take any action against third parties. This state of affairs was given appropriate expression by the maxim: mobilia non habent sequelam (in other words, rights in rem do not TUn with chattels). However, it correctly defines the position only from the standpoint of Roman law, since there could not be said to exist, under the law as set out in the Sachsenspiegel, any property right which enjoyed protection and which specifically attached to the property in question even as against third parties. Rights running with property constitute an element of the Roman-Iaw concept of rights in rem. Under the Sachsenspiegel, what counted was disturbance of actual possession, which enabled an action to be brought in tort, or breach by a "holder" of the trust placed in hirn, against which an action could be brought in contract. There existed no rights of action in rem, and thus no "droit de suite". The same basic premises applied in relation to security rights in respect of chattels. The concept of a hypothec over chattels was unknown. A right of pledge or - more accurately - the pledge did exist, but even then it was the "Gewere" which was protected. This meant that a right of pledge was created by actually placing the property in the possession of the pledgee. The pledgee was protected, because he actually held the property in questi on and thus had the "Gewere"; but he was protected only for as long as he actually retained possession of the property. If he wished to avail himself of his right of pledge or - more accurately - his pledge, he could do so for as long as he had control over the property. Obviously, disputes could not arise in such circumstances in relation to third parties against whom that right might be asserted. If the pledgee handed the property back to his debtor, he lost, as a matter of fact, the possibility of recovering through it, since he relinquished his pledge and thus his right of pledge, albeit not his claim against the debtor. A former pledgee had no right of action against a third party to whom the debtor subsequently alienated or pledged the property. Naturally, there was no question whatever of any possible creation of a right of pledge by means of delivery of the property constituto possessorio. 9 The same applied, mutatis mutandis, with regard to a finder of lost property who did not hand it over to the person who had lost it.

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109

It was not until the reception of Roman law that it became possible to create a fonn of security without actual pos session in respect of chattels - or, to put it another way, a fonn of security which did not involve "Gewere". The concepts of hypotheca and of the creation of a right of pledge by means of delivery of property constituto possessorio were introduced. However, the rules emanating from Roman law frequently conflicted in this sphere with indigenous rules of a type comparable with those described above. The question to which this generally gave rise, and which was naturally posed in tenns of Roman law, was: do rights in rem run with chattels, or not? Mobilia habent sequelam? or Mobilia non habent sequelam? A comparable maxim existed with regard to the a hypothec or a right of pledge constituto possessorio in respect of chattels, although it was generally less disputed, being frequently accepted: mobilia non habent sequelam per hypothecam - in other words, encumbrances resulting from the above-mentioned undisclosed, i. e. non-publicised, fonns of security do not run with chattels.

3. Roman-Dutch law Much has been written about the disputed validity of the maxim mobilia non habent sequelam in what is called old Dutch private law. The question wh ich commonly arises concems the extent to which rights in rem generally ron with chattels under the legal roles of indigenous origin which have been applied since time immemorial in the territories of what is now the Netherlands. The prevailing view, somewhat simplified, may be stated as folIows. Various legal roles of indigenous origin conferred on the "owner" of a chattel a cause of action against a third party in possession of the chattel only in the event that the "owner" was deprived of possession as a result of loss or theft. If, however, the "owner" had voluntarily handed the chattel over to another, for example by way of hire, loan, deposit or the like, and if the chattel were subsequently alienated by that other person to a third party, the "owner" had no cause of action against that third party; his right of recourse was only against the party to whom he had handed the chattel over. That situation was reflected, as said before, by the maxim "Hand wahre Hand". The authors of older works on the subject, especially those written in the nineteenth century, frequently infer from the incidence of such legal roles of indigenous origin the existence of a role of "Gennanic law" - as distinct, naturally, from "Roman law", which in such cases generally afforded an owner who had lost possession of a chattel the possibility of claiming it back from a third party into whose possession it had come. Opposition arose to the idea outlined above. Fierce controversies raged, especially in the columns of the Tijdschrift voor Rechtsgeschiedenis. Van

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Chapter VI: "Mobilia habent sequelam": Hypothecs on cows and horses

Bemmelen, Hofmann and Telders denied that any such Germanic legal rule had ever applied. Van Apeldoom defended the then prevailing view against their attacks. This gradually led to arevision of the old idea. The notion of a single, integral Germanic system of law incorporating the above-mentioned rule was abandoned. Instead, it was concIuded that that rule, and others like it, had applied in various places at various times, but could not be said ever to have been uniformly applicable. 1O Whatever further concIusions may be drawn in this connection, it is now generally accepted that the rule mobilia non habent sequelam did not in principle apply in the various legal systems operating in the provinces at the time of the Republic of the United Netherlands. 11 Consequently, the modem rule laid down in section 3:86 BW [Burgerlijk Wetboek = Netherlands Civil Code] does not hark back to "old Dutch" law; instead, it emanates, via its predecessor, section 2014 OBW [the old (Dutch) Civil Code] and the enigmatic formulation "bezit geldt als volkomen titel" ["possession amounts to perfect title"] contained therein, to the equally puzzling maxim "possession vaut titre", which originates from BOUljon and has been incorporated into section 2279 of the French Civil Code. After much controversy, 12 section 2014 OBW was finally interpreted in 1950, in the judgment delivered in Damhof v The State,13 in the manner now codified in section 3:86. The restriction of protection to third parties acting in good faith can be traced back to the connection estabIished by Bourjon between his maxim and the prescription rules existing under Roman law, which rendered success in pleading prescription conditional on proof of good faith. 14 The section was to be found among the prescription rules set out in the OBW, and also features in the corresponding rules of the French Code civil; its effect was to make the prescription complete immediately upon possession being handed over.

10 For arecent account of this and similar questions, see A. F. Salomons' thesis entitled 2014 tot 1950, De geschiedenis tot 1950 van de vertrouwensbescherming bij overdracht van roerende zaken door een beschikkingsonbevoegde, th. Amsterdam, 1997, and the works referred to therein. 11 See, to begin with, B. M. Telders, "Het beg insel 'roerend goed heeft geen gevolg' ten tijde van de republiek", published in: Tijdschrift voor Rechtsgeschiedenis 8 (1928), pp. 5~8, esp. p. 67, with whom L. J. van Apeldoom feit able to concur on that point in "Roerend goed heeft geen gevolg", published in: Rechtsgeleerd Magazijn 49 (1930), pp. 184-225 (subsequently published in German translation under the title "Mobilia non habent sequelam", in: Tijdschrift voor Rechtsgeschiedenis 11 (1932), pp. 133-186, esp. p. 180). See also the latter's notes supplementing those of S. J. Fockema Andreae on Grotius' Inleidinge tot de Hollandsche Rechts-geleerdheid, 4th edition, Amhem, 1939, Part 11, p. 118 et seq. 12 See the work by Salomons, cited above. 13 Judgment of the Hoge Raad of 5.5.1950, NJ 1951, 1. 14 See W. J. Zwalve, Hoofdstukken uit de Geschiedenis van het Europese Privaatrecht, 1 Inleiding en zakenrecht, Groningen, 1993, p. 95 et seq.

3. Roman-Dutch law

111

Under Roman-Dutch law, the maxim mobilia non habent sequelam was applicable only to hypothecs on moveable goodS. 15 A hypothec on moveables - or, as we would now call it, an undisclosed pledge - did not create any "droit de suite", and could not therefore be invoked as against a third party who had acquired the property encumbered by the hypothec. In other words, such a hypothec could be invoked against the debtor/owner of the property who had created it only for as long as the lauer still held the property in question. Consequently, it conferred only a preferential right vis-avis other creditors of that debtor/owner. As Grotius put it, in his lnleidinge (11, 48, 29): "But if, as a result of lawful acquisition,16 the chatte! has come into the hands of a third party, that chattel is free and unencumbered, unless the vendor insisted on being given a right of pledge over the property sold by hirn in order to cover the eventuality of his not being paid: in that laUer case, the right of a vendor in the "Rijnland" will subsist, even as against a third party, and even where the hypothec was created privately".

As soon as the debtor/owner had transferred ownership of property subject to a hypothec to a third party, or handed it over to a third party by way of possessory pledge, the hypothec therefore lapsed. Accordingly, the maxim mobilia non habent sequelam per hypothecam was in principle applicable under Roman-Dutch law. As Grotius states, an exception existed in Rhineland (i. e. the (old) Rhine estuary region around Leiden in the Netherlands) as regards sales of moveable property in the context of which the vendor had insisted on taking a hypothec over the property sold by way of security for payment of the purchase price. The right created by such a hypothec was enforceable there against a third party to whom the property had been conveyed by the purchaser, e. g. in the event of a sale. 17 That was the position even where the hypothec had been created by a private, non-notarial deed.

Van der Keessei speaks in that connection of the Dutch legal maxi m or paroemia iuris Belgici: mobilia non haben! sequelam hypothecae. 18 To prove his point, he refers to the following case. On 31 May 1631 a so15 See in that regard A. G. Pos' thesis entitled Hypotheek op roerend goed (Bezitloos pandrecht), Enkele rechtshistorische en rechtsvergelijkende beschouwingen, th. Leiden, 1970, p. 180 et seq. 16 Annotation from the Lund ms: Titulus proprietatis an et pignoris. Requiritur ut titulus sit onerosus ... ("Be it ownership or pledge. There must be an onerous title.") A different view is taken by Van der Keessei in Prae!ectiones m, 965, re Grot. 11, 48, 29, who considers that Grotius fails to draw any distinction between an onerous title and a lucrative title, without, of course, having any knowledge of the annotation from the Lund ms. 17 See D. G. van der Keessei, Praelectiones iuris hodiemi ad Hugonis Grotii Introductionem ad Iurisprudentiam Hollandicam, Iß, Amsterdam/Kaapstad, 1966, 966, re Grot. 11, 48, 29.

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caIIed turbe, i. e. a hearing of legal experts, was held, comprising four advocates, two town clerks, seven attorneys and nine notaries, who had practised for between six and thirty six years in the city of Amsterdam; they appeared before the aldermen of Amsterdam, declaring on oath that "here in this City" it was customary to apply "the rule or commonly accepted precept that meuble geen vervolg van hypotheecq en heeft" (meaning that hypothecs on chattels do not run with the goodS).19 Hugo Grotius, referring to that hearing, observed in an opinion of 26 February 1632 that "this custom is foIIowed not only in Amsterdam but throughout the whole of Holland and in other countries.,,20 Certain authors even went so far as to draw from that maxim the conclusion that no legal consequences of any kind attached to a hypothec on chattels. 21 The only way in which a moveable could be encumbered, they argued, was by handing it over to the creditor: in other words, by pledging it. In connection with that assertion, the question was raised as to whether it was sufficient in that context for the creditor to be given pos session of the chattel - possibly even without its being actuaIIy handed over to hirn. In other words, was it possible to create a right of pledge by giving possession constituto possessorio? In Voet's view, that was not a feasible means of encumbering property, since it must of necessity be regarded as a device intended to circumvent the requirement of delivery, and operated to the detriment of other creditors?2 He went on to discuss the fragment from the Digest cited above - D. 13, 7, 37 -, raising the question as to how his view could be squared with Roman law, since, under Roman law, a right of 18

Van der Keessei, Praelectiones, III, 965, re Grot. 11, 48, 29; with reference to

A. Matthaeus 11, Paroemiae Belgarum jurisconsultis usitatissimae, Utrecht, 1667,

para. 7, Nos 11, 12. 19 Consultatien, Advysen, en Advertissementen, Gegeven en geschreven by Verscheide Treffelyke Rechts-Geleerden, in Holland en elders, III(2), Utrechtl Amsterdam, 1745, cons. 174. 20 See the opinion referred to in footnote 19. 21 A. Matthaeus 11, Paroemiae Belgarum jurisconsultis usitatissimae, para. 7, No 11; Voet, Commentarius ad Pandectas, 20, I, No 12. 22 In advancing that view regarding delivery constituto possessorio, Voet refers to the opinion of Grotius cited above. In that opinion, however, Grotius was not discussing the question whether or not delivery constituto possessorio constitutes a possible means of creating a right of pledge, but rather the question of delivery constituto possessorio of a hypothecated chattel by the debtor to a third party, where the debtor retains possession of the chattel precario - at will - for as long as the third party consents to his doing so. Unlike the "turbe" referred to above, Grotius took the view that such delivery did not nullify the right of the person to whom the hypothec was granted, and that it did not cause the mobilia rule to take effect, since the property could not in such circumstances be said to be handed over: "on the contrary, such a proviso raises the suspicion that the transaction is vitiated by deception and collusion."

3. Roman-Dutch law

113

pledge could also be created constituto possessorio, for example under an arrangement whereby the debtor retained the property as lessee. In such circumstances, possession of the chattel was handed over; it ceased to be vested in the debtor, who was merely the holder of the chattel in question. 23 Voet concluded that the text referred to did not conflict with the view formulated by hirn, and put forward two arguments in support of that conclusion, as folIows. First, where a debtor alienated or pledged to a third party a chattel which had previously been "pledged" constituto possessorio, by actually handing it over to that third party, he consequently ceased to hold it on behalf of the (first) creditor, whose pos session of it thereupon came to an end and who could no longer, as a result, invoke against the third party a right of pledge or plead any right of precedence over other creditors. Second, delivery constituto possessorio could no longer be regarded as valid nostris moribus, since mobilia non haben! sequelam. 24 lt followed that a creditor had to have actual possession of a chattel in order to be able to invoke any preferential right in relation to it. In opposition to this, Van der Keessei points out that the maxim is applicable only to cases in which the debtor has alienated the pledged chattel to a third party, and has relinquished control over it - or, one might add, where he has re-pledged it; it does not apply, he says, where the debtor still (physically) holds the pledged chattel. 25 Why, he asks, should a pledgee or hypothecary creditor not be able to exercise his right, so long as the debtor is still holding the chattel in question? In other words, even though no "droit de suite" may exist, why should it not be possible to invoke the other consequence flowing from security rights in rem, namely the preferential right, against the debtor's other creditors, as long as the chattel is still under his actual control? The Hoge Raad (Supreme Court) was called upon to determine just such a case on 13 November 1737.26 In that case the debtor, named Titia, had transferred all her "moveables and shop-goods" by way of security to Maevius, "without retaining any right thereto, but holding the entirety thereof precario, and remaining in possession thereof until such time as Maevius might manifestly terminate that arrangement". Upon Titia becoming insolvent, a dispute arose between Maevius and Titia's other creditors conceming the question whether Maevius had a preferential right to the proceeds of sale of the chattels in question, which were sold by public auction. The See also, as indicated above, D. 13, 7, 35, I. This rernarkable line of reasoning is rightly contested by Van der KeesseI. 25 Van der KeesseI, Praelectiones, m, 962, re Grot. n, 48, 28. 26 . C. van Bijnkershoek, Observationes Tumultuariae, ed. E. M. Meijers, H. F. W. D. Fischer, M. S. van Oosten, IV, Haarlern, 1962, No 3051. See also Zwalve, Hoofdstukken uit de Geschiedenis van het Europese Privaatrecht, p. 351. 23

24

8

LokiniJanscnlB~sma

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Chapter VI: "Mobilia habent sequelam": Hypothecs on cows and horses

Middelburg bankruptcy court dismissed Maevius' claim. Upon appeal to the burgomasters and aldermen of Middelburg, it was rejected a second time. The case was then brought direct before the Hoge Raad, which assumed that, in agreeing the transfer of the property, the parties had intended to create a right of pledge. It went on to consider in depth the questi on whether that right of pledge had indeed been created, given that the chattels purportedly pledged had not actually been handed over and given that it had been agreed that they were merely to be held (by the debtor) on the basis of possession at will. Van Bijnkershoek submitted that this was possible under Roman law. It was troe, he said, that Voet had rejected the concept of constitutum possessorium, "but for incorrect reasons", at any rate where the applicable law was that of Zeeland. 27 In Utrecht, the role applying was that "one cannot simuItaneously give something and hold onto it"; but in the province of Holland such an arrangement was permitted under the customary law, as was shown by the events of 31 May 1631, involving the hearing referred to above?8 It was true that Amsterdam recognised a rule rejecting such a constitutum possessorium, but "a legal rule of general application cannot properly be inferred from a particular, specific statute.,,29 Moreover, even if that was the rule applying generally - or at any rate on a local basis - in the province of Holland, why should it necessarily also apply in Zeeland? Whilst it was true that certain edicts were applicable in the latter province which prohibited the constitutum possessorium to farmers and country people, they did not extend to townsfolk and city-dwellers. Consequently, Maevius was entitled to assert his preferential right. It followed, according to the Hoge Raad, that it had been possible for the right of pledge to be created constituto possessorio. The following will be apparent from abrief resume of the principal features of the law of the province of Holland concerning the question whether rights in rem ron with chattels. The maxim "rights in rem do not run with moveable property" certainly formed part of the law applying in that province as regards pledging arrangements; but it did not apply in relation to ownership and the right of recovery.30 Under Roman-Dutch law, a right of pledge or hypothec over a chattel certainly conferred a preferential right ("droit de preference"), but it did not create a "droit de suite".

Sed rationibus valde inutilibus. Van Bijnkershoek speaks of the date as having been 31 March 1631, but refers to the same opinion: Holl. Consult. III 174 No 2. 29 Ex speciali statuto non recte effeceris jus generale. 30 Van der KeesseI, Praelectiones, ITI, 966, re Grot. H, 48, 29: "quod paroemia 'mobilia non habent sequelam' in Hollandia quidem recepta sit in oppignorationibus, non autem in dominio et rei vindicatione." 27

28

4. The case of Fenema versus Heringa

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4. The case of Fenema versus Heringa, or the position under Roman-Frisian law As stated above, the Court of Friesland was called upon, in the litigation between Fenema and Heringa, to determine the question whether a right of hypothec over moveable property constituted an encumbrance which ran with that property. Fenema claimed to have reserved that right in the context of the public sale of the horse which ultimately found its way into the hands of Heringa. Various things had been provided for in the conditions of sale comprising the Dantumadeel auction rules, by means of what was known as a clausula constituti?1 Consequently, on 26 April 1714, Fenema had sent the major commanding the militia of the town of Dokkum to see Heringa, in order to demand that the horse be handed over. This Heringa had refused to do, but he had declared that he would not remove the horse or he would satisfy Fenema's claim. Thereafter, Fenema had brought proceedings against Heringa before the Court of Friesland on the basis of the auction conditions, but the Court had declared that it did not have jurisdiction to hear and determine the action. The dispute was thereupon brought before the Dokkum Lower Court. In the proceedings before that court, Heringa put forward a defence based on the following grounds. First, he inferred from the fact that the Court of Friesland had upheld his defence to the effect that it lacked jurisdiction in the matter the argument that "by virtue of the auction conditions, the recipient of the [proceeds of sale of] goods sold at auction has no cause of action against a third party in possession". Had there been any possibility that such a cause of action existed, would not the Court of Friesland have had jurisdiction in the matter? For he pointed out that the auction conditions not only contained a clause vesting jurisdiction in the Court of Friesland 31 The clause in question, which is set out in the court documents, read as follows: "The goods of the purchaser and guarantor shall be generally available by way of security for the payment of the promised purchase moneys, together with any costs, damages and interest incurred in relation thereto in the event of actual enforcement as aforesaid, and the same shall remain subject to seizure, and also, specifically, any goods, household articles, ... furniture, domestic livestock, food, tools and implements, fruits in the fields or in barns, whether or not threshed, which may specifically be owned either now or in the future by the purchaser and guarantor, and, moreover, all things which, under the laws and customs of this land, may not be understood as falling within the ambit of a general hypothec; the same shall be specially hypothecated and secured by way of guarantee for the promised purchase moneys, in addition to the lot sold, and, in accordance with the clausula constituti, no person shall have any right of action or right in respect thereof until such time as payment shall have been effected and made in full." 8'

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but also provided for an "encumbrance of property", that is to say, a hypothec, in particular on the horse. In the light of the judgment subsequently delivered by the Court of Friesland in the appeal proceedings in this case, in which it found in favour of Fenema, that interpretation of the decision given by the Court at first instance was cIearly incorrecL The reason for the initial decIaration by the Court of Friesland that it lacked jurisdiction was that the relevant auction conditions vested in that Court competence to determine at first instance only disputes between the vendor and the purchaser, whereas the case submitted to it concemed a dispute between the vendor and a third party. Clearly, the third party in question had not agreed to submit to the jurisdiction of the Court of Friesland sitting at first instance. However, Heringa went a step further in his interpretation of the decision given by the Court of Friesland at first instance, submitting that the hypothec in respect of the horse on which the vendor had insisted was effective only against the first purchaser. He advanced aseries of arguments in support of that submission. To begin with, Heringa pleaded the maxim nemo ex contractu alterius obligatur, taken from C. 4, 12, 3. A person cannot be bound by a contract entered into by another. He went on to plead the role mobilia non habent sequelam - no "droit de suite" attaches to moveable property. 32 In short, the question which arose was whether any such "droit de suite" attached under Frisian law to a hypothec over moveable property and, consequently, whether or not such a right could be asserted against a third party in possession of such property (whether or not the latter was the owner thereof). Heringa maintained that the role in question was applicable in Friesland, and particularly in his case, since it concemed a hypothec in respect of a horse "from a consideration of whose forehead a purchaser cannot tell that its master still owes the purchase price". In support of that argument, he went on to observe that "it is almost always the case with markets overt" that payment is made forthwith upon delivery of the goods purchased and that no period of grace is allowed for payment, as in the case of purchases of "real property". Heringa had yet more strings to his bow, however. He maintained. on the basis of the Authentica Sed hodie,33 that, before any claim could be asserted against a person in pos session of pledged property. it was necessary to levy execution. first, against the debtor himself and then against the sureties, if any. That defence wasultimately not accepted. A surety had not 32 In advancing that plea, he relied on P. Christinaeus, In Leges Municipales (eiusdem civitatis ac provinciae: sc. Civitatis ac Provinciae Mechliniensis) Commentaria ac Notae. Antwerp. 1671, Title 7, Article 7, No 7. 33 Nov. 4, 2, to be found at that time in the Corpus Iuris editions after C. 4, 10, 14.

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been given, and Fenema had adduced evidence showing that he had had "discussions" with the purchaser at the outset regarding the purchase price. In response to this, Heringa argued that the auction conditions imposed on the vendor an obligation requiring the purchaser to provide a guarantor. Since that had not happened, the vendor could be said to have acted imprudently, or even to have had what was known as "fides de pretio". The loss and damage arising from all this should be borne, he said, by Fenema, quite apart from the fact that ownership had as a result passed to the purchaser. The tenn fides de pretio signified a sale on credit by the vendor, and was connected with a special rule of Roman law concerning the transfer of ownership on the purchase of property, inasmuch as Inst. 2, I, 41 laid down the condition that, in order for ownership to pass in the event of a purchase, the purchaser had to have "paid the purchase price to the vendor or in some other way to have furnished the latter with some fonn of security, for example by providing a surety or pledge . . . However, where the vendor has granted credit to the purchaser, it must be said that ownership of the property passes forthwith to the purchaser. .. 34 In short, ownership of an item of property which had been sold did not pass by virtue of its being handed over before the purchase price was paid, unless credit was granted or security provided for the sum to be paid. Heringa sought to argue, on the basis that the vendor had not demanded a surety, that he had granted credit, and consequently that a third party should not be troubled on account of the fact that the grant of credit had turned out so badly. However, Zacharias Huber had previously pointed out, in his analysis of cases such as this, that the passage in the Institutes concerning the criteria according to which it was to be assumed that credit had been gran ted appeared to require something more than this.35 Where there was any doubt on the point, it should not too readily be assumed that credit had been granted, since this involved a quest ion of fact which had to be proved. The mere fact that the item of property in question had been handed over did not constitute sufficient proof for those purposes. Something more needed to be shown, for example the giving of a surety or something of that kind. Consequently, in a case in which no surety had been demanded or provided, he could see no reason for assuming, on that ground, that credit had been granted.

As his final argument, Heringa maintained that Fenema was not entitled to bring an action - that is to say, a revendication or claim for the return of the property - on the basis of the so-called clausula constituti, since he had never been the owner of the property in issue. In advancing that argument, he relied on Inst. 4, 6, 4 and D. 6, 1, 23 pr. According to both of those texts, no right of action in rem vests in a non-owner enabling hirn to claim 34 •• • venditori pretium solverit vel alio modo ei satisfecerit, veluti expromissore aut pignore dato . .. sed si is qui vendidit fidem emptoris secutus fuerit, dicendum est statim rem emptoris fieri. 35 Huber, Observationes rerum judicatarum, obs. 27.

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the return of an item of property of which he has lost possession - albeit that lost. 4, 6, 4 clearly indicates that a special right of action, namely the actia Publiciana. vests in a possessor who is about to become owner by prescription. 36 In other words, irrespective of the effect of the clausula constituti in general (discussed immediately below), Fenema was not entitled to bring the revendication to recover the property in issue, since he had never been the owner of it. In sum, therefore, Heringa's defence was to the effect that Fenema had no right to claim against hirn as a third party, since Fenema was not the owner of the property concemed and no "droit de suite" attached to his hypothec right: mobilia non habe nt sequelam. The Dokkum Lower Court was called upon to deli ver judgment in the case at first instance. Fenema's action was dismissed. In the light of the defences raised by Heringa's counsel, it must be assumed that the Lower Court accepted the latter's reliance on the maxim mobilia non habent sequelam, since it was clear that Fenema had caused a hypothec over the horse to be gran ted in his favour and, in the absence of acceptance of the validity of the maxim, there was no reason for rejecting the enforcement of that hypothec as against a third party - in this instance, Heringa. Zacharias Huber, who had previously had occasion to express his view conceming a judgment delivered by the same judge at first instance (idem ille a quo lata fuit sententia, cujus meminit Observatio XIV), appeared, in anticipation, to be unwilling to accept that the judex inferior in question could have had any well-founded argument on which to base his decision; for he states that, in the case at issue, Fenema "had a better understanding of the position than that judge, which, led astray by I know not what insignificant and unfounded persuasion", had rejected the claim. 37

36 lost. 4, 6, 4: Namque si cui ex iusta causa res aliqua tradita fuerit, ... necdum eius rei dominus effectus est, si eius rei casu possessionem amiserit, nullam habet directam in rem actionem ad eam rem persequendam: quippe ita proditae sunt iure civili actiones, ut quis dominium suum vindicet ... ("For where, on any legal basis, a thing is transferred to someone, . . . but the person concerned has not yet become the owner of it, and he then by chance loses pos session of it, there vests in hirn no direct right of action in rem entitling hirn to claim the return of the thing in question. This is because, under the ius civile, actions may be brought only in order to enable a person to claim the return of his property."); D. 6, I, 23 pr.: In rem actio competit ei, qui aut iure gentium aut iure civili dominium adquisiit ("A right of action in rem vests in a person who has acquired ownership, by virtue either of the ius gentium or of the ius civile."). 37 Et sapiebat (sc. Actor), plus quam Judex inferior; ... qui nescio qua futili & vana persuasione seductus, censuerat Actorem non esse admittendum, ut procedebat, zoo als hij procedeerde ... las he brought his action] . ..

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Fenema, in his appeal, indicated to the Court of Friesland his understanding of the reason for the rejection of his claim by the lower court. 38 The Dokkum Lower Court had held that, whilst he could certainly have brought proceedings in rem against Heringa, he was not entitled to bring an action in personam. However, he had claimed inter aUa the return of the horse, and was therefore unable to conceive how he could not be said to have brought an action in rem. In his statement of appeal, he limited himself to arepetition of the factual course taken by the events which had occurred, arguing on that basis that the claim must automatically be allowed. If it was indeed on those grounds that the lower court arrived at its decision - and Zacharias Huber appears to indicate as much when he states that Fenema's claim was rejected "ut procedebat. zoo als hij procedeerde [as he brought his action]" - then the attention given by the younger Huber on more than one occasion to that lower court would seem to be not undeserved.

In response to the arguments set out in the statement of appeal, the respondent, Heringa, contended, first of all, that he could not understand why the appellant was making such a fuss about the horse. He then proceeded to repeat, in essence, the grounds of defence wh ich he had successfully advanced before the Dokkum court, albeit - as often happens in an appeal from a lower to a higher court - embellished with various further reasons. Thus, he submitted that, as a matter of natural justice, no person should suffer loss as a result of the imprudence of another, and that, in the case at issue, Fenema had been imprudent by failing to secure himself more effectively against the contingency of non-payment of the purchase price. As to the grounds on which the lower court had reached its decision, he took the view that that court had declined to regard the claim as a revendication seeking the recovery of property since Fenema had not been the owner of the property in question. Nor, he argued, could the claim be seen as relating to a hypothec, since it was not possible to bring an action based on a hypothec against a third party in possession of the property in issue. Thus, the proceedings brought by Fenema must necessarily have been an action in personam. Such an action could, however, "never be brought against a third party". In his reply, Fenema argued in turn that he had retained title to the horse by virtue of the clausula constituti. or at any rate that he had acquired it constituto possessorio from the purchaser, with the result that the latter had at no point been capable of transferring title to a third party. 39 It was selfStatement of appeal dated 7 November 1717, paras 13 and 14. The parties had. in addition, debated in depth the question whether the clerk had indeed been the owner of the property on the date of the auction, given that the 38

39

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evident, therefore, that, in the event of failure to pay, he was entitled to claim recovery of the horse "wheresoever the same might be located". In so arguing, he relied on the Heedensdaegse Rechtsgeleertheyt, in which, however, Huber's analysis of the clausula in question had focused on its consequences in the case of a hypothec. 40 Huber commenced with an interpretation of the contents of the clausula: (43) The Clausula Constituti, as it is often so called, is frequently attached to special hypothecs; its tenor is such that the debtor declares that he holds the property, wh ich is pledged by hirn, on behalf of the creditor. who thereby obtains the true and immediate possession thereof, even though the debtor may retain physical possession 0/ it.

This then raised the question of the effect of the clausula as against third parties: (44) And if the debtor should transfer to a third party the item of property thus encumbered, then a creditor enjoying the benefit of the Clausula Constituti may assert not only the right of retention but also the possessory right or remedie possessoir, whereby he is entitled to demand that the person currently in possession 0/ the property do permit and allow the sale 0/ the property as if the same belonged to him, so that the sale proceeds may be applied in satis/action of the debt due to hirn, and in such a way as to give effect to the Law whereby any creditor who, through no fault of his own, loses pos session of the property in question becomes vested with a Condictio entitling hirn to recover possession thereof as if he had never lost the same.

In his rejoinder, Heringa argued that, if Fenema was seeking to rely upon the clausula constituti, allegedly vesting in hirn (the right to) possession of the property, then he cannot have remained the owner or again become, more accurately, the owner of it, and was not entitled to proceed by way of a revendication, being instead required to bring an actio hypothecaria. This was because the clausula was designed to grant a hypothecary right. However, no "droit de suite" attached to such a right. It must be conceded in Heringa's favour that a clausula constituti is not necessary in order for a vendor to retain title to property. It suffices if the property is

actually handed over on the basis that the purchaser is merely to hold the same.

If, however, the vendor wishes to establish a hypothecary right over the item of

property sold, an act granting such a hypothecary right is required. A hypothec can be granted merely by contract. The establishment of a right of pledge re-

clerk had conducted, ex officio, a public auction of the effects of another. Fenema argued, inter alia, that the owner of those effects had concluded a contract with rum which was based on the innominate contract known as aestimatum, as a result of which the title to the property had been transferred to hirn together with a mandate to seil the property in his own name and at his own risk. This involved, again, the question whether, by virtue of the c1ausula constituti, Fenema had in fact retained title to the property. 40 Huber, Heedensdaegse Rechtsgeleertheyt, 11, 50, 43-44.

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quires a transfer of possession. In that case, the vendor is the person in pos session. It is not until he transfers such possession to the purchaser that the laUer becomes the owner of the property, whereupon the purchaser can grant a right of pledge. The latter transaction may, under Roman law at least, take place by constitutum possessorium. Thus if the vendor uses that device, with the help of the clausula constituti, he will have granted a right of pledge.

Heringa went on to rely on a decree issued by the States of Friesland on

21 February 1685, enacted in order to combat "the significant dishonesty

and false acts engaged in with regard to livestock and other moveab1e Goods, to the substantial disadvantage of Creditors".41 The States issued that decree "having learned from experience that many persons, acting with great dishonesty, engage in divers false acts with regard to livestock and other moveable property, to the great detriment of their creditors". They decreed "that all transfers of livestock and other moveable assets which are effected as between contracting parties without actual possession or custody thereof passing to the purchaser but where instead the same remains with, or reverts to, the vendor, are to be null and void, unless the deed recording the transaction in question is registered with the Clerk of the municipality or town in which the vendor resides, with effect from such registration".

According to Heringa, the form of delivery known as constitutum possessorium was thus declared by that decree to be null and void, since it was generally used in order to deceive third parties and to feign transfers. It became valid only from the time at which a deed recording the transaction was registered with the clerk of the locality in which the alienator resided. Whilst it was true that the clausula constituti was valid under the jus civile, it had no legal force jure statutario. The decree provided that it was to be ineffective vis-a-vis the other creditors of the alienator, 1et alone against a bona fide third party in possession of the property. In his analysis of this matter, Zacharias Huber dwelt in considerable detail on the effect of the clausula constituti. The clausula in question was, he said, one which frequently occurred in practice. In his view, it was important clearly to establish the effect which it had. Fenema's assertion was that, by virtue of the clausula, he had retained title to the property concemed. In Zacharias Huber' s view, that was not the case, however. The clausula related to the constitutum possessorium, in the context of which the purchaser declared that the asset which had been sold was being held by hirn for and on behalf of the vendor pending payment of the purchase price. The purcbaser bad initially acquired such possession by virtue of the banding-over of the property pursuant to tbe sale, and tbereafter be had, by means of the clausula, given possession direct to tbe vendor, by declaring 41 Groot Placaat en Charter-boek van Vriesland, published by G. F. Baron thoe Schwartzenberg en Hohenlansberg, Part V, Leeuwarden, 1793, p. 1239.

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that he held the property on the latter's behalf. Consequently, there was no retention of title; instead, credit was gran ted to the purchaser. That meant that the vendor had been satisfied in another way, namely by procuring for hirnself possession constituto possessorio. So that amounted to a retention of possession. This possession - or, right to possession, as it is termed by Zacharias Huber - afforded various advantages to the vendor, since, on the basis of C. 7, 32, 12, a possessor who possessed through the intermediary of a detentor retained his (right to) possession, even where the person physically holding the property handed it over to a third party, and could demand it from that third party. 42 Fenema had pleaded that text in support of his case. Its effect was to preclude such a third party from pleading the beneficium ordinis. That plea involved the defence mentioned above, namely that the creditor was required to assert his claim against the debtor hirnself and against the sureties before he could enforce it against the person in possession of pledged property, since (the right to) possession was such as to enable hirn to claim the return of the property from the third party without having in any way to concern hirnself with defences relating solely to execution of a hypothecated asset, which was aimed not so much at procuring the return of the asset in question as at obtaining payment of the secured debt. It was therefore necessary to regard the clausula, in this case, as supplementing and reinforcing the hypothec. Moreover, the grant of a hypothec c1early indicated that the purchaser had been given credit and had thus become the owner of the property concerned. This was borne out by Inst. 2, I, 41, which specified the giving of a pledge as a c1assic example of the provision of credit. The advantage afforded by such pos session on the part of the vendor was that it prevented the purchaser, in the absence of possession, from transferring the asset constituto possessorio to a third party. And in the event of a de facto transfer to a third party, the vendor could claim the return the property in question by pleading C. 7, 32, 12. In short, the object of the clausula in such circumstances had been the creation of a hypothec with possession, that is, a right of pledge. 43 One point with which Zacharias Huber does not expressly deal is the following. As stated above, the decree of the States of Friesland of 21 February 1685 had declared transfers constituto possessorio to be "null and void". What did that mean in this case? Hamerster observed, in his explanation of that decree, that it 42 As to the meaning of this constitution of lustinian (531-532 A.D.), which had been a subject of debate ever since the time of the glossators, see, for example, F. K. von Savigny, Das Recht des Besitzes, 7th edition, Wenen, 1865 (reproduced in Aalen, 1990), p. 372 et seq. (§ 33); for an analysis of the modem views on the point, see M. Kaser, Das römische Privatrecht 11, Munich, 1975, p. 254, para. 23. 43 Zacharias Huber relies in this connection on his father's Praelectiones juris civilis, re D. 18, 1 and D. 41, 2.

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related, in essence, to "transporten", that is to say, transfers of title 44 - "wh ich term is in no way to be construed as meaning hypothecs, since, in so far as they may be said to constitute a sort of alienation, they nevertheless do not involve a transfer of titfe, as seems to be supposed in this case." For those reasons, Zacharias Huber will not have considered that there was any occasion in this case to enter into a discussion of the decree. It may implicitly be inferred from the decisi on of the Court of Friesland in this case that the Court indeed considered the decree to be inapplicable to the creation of a hypothec by means of the constitutum possessorium, since a hypothec was valid even without pos session being given. Heringa had gone on to plead in his defence the maxim mobilia non haben! sequelam. According to Fenema, that rule might weil be applicable in other countries, "but certainly not in Friesland, where the jus Romanum is strictly observed". In order to prove that point, he once again relied on the

Heedensdaegse Rechtsgeleertheyt. 45

It is said by most authors that no hypothecary action lies in respect of moveable property as against a third party in possession thereof who has become the owner or pledgee of such property, since this would create an unacceptable obstacle to ordinary commerce, even if it were to involve a special pledge; and whilst all [other] nations subscribe to such an idea, we [in Friesland] also do not accept that any right of recourse may be exercised, in the context of the public auction of the effects of insolvent persons, against moveabfe property which has previously been sold. Moreover, a person to whom property has been pledged will not usually hand it over to older creditors without any payment, as the Lombards (pawnbrokers) and others would be required to do if there existed a hypothecary right of action in respect of moveable property. Nevertheless, the rule that the Imperial law invariably forms part of our legal system, save where it has been done away with, is so strong that it must apply even in the present case, where a person wishes to avail hirnself of the legal consequences thereof; and it has, to my knowledge, been accepted by the Court in relation to a horse conceming which a hypothecary action was brought, the said horse having been awarded to the creditor in the year 1679 ... According to Huber, a similar judgment had been given on a previous occasion in proceedings conceming a "Landts Obligatie" which "had passed by way of transfer through various hands". Fenema maintained that that earlier decision had been confirmed by the Court of Friesland in the proceedings between Eelckien Alles and Radbodus Dircks, on 20 December

1687. 46

Lastly, Heringa put forward a strong plea to the effect that the maxim

mobilia non habent sequelam was applicable in Friesland.

Hamerster, Statuten, Ordonnantien, I, 8, Art. 5. Huber, Heedensdaegse Rechtsgeleertheyt, 11, 49, 12. 46 Case No 16556: judgment record of 1687, judgment No 24. See Beucker, Rerum judicatarum, c. 119. 44 45

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For that rule had necessarily "to apply, propter utilitatem commercii, both here in Friesland and in other countries. This is because, given the promiscuity with which claims were brought to recover moveable goods, and especially horses which are so frequently traded in this country and elsewhere, in markets and otherwise - from the bona fide purchasers thereof, a situation had arisen in which nobody in the world who bought something could be sure of having actually acquired it, even in a free market. Consequently, a municipal clerk would be empowered, by virtue of such auction conditions, to unhitch such a horse from the coach or wagon of anyone who had bought and paid for it; and there existed no means whatever of securing oneself."

By contrast, the clerk in this case, namely Fenema, could certainly have taken steps to protect his position, for example by not handing the property over until he had first received payment, or by demanding a surety from the purchaser. Heringa further pointed out the difference between "entrusted goods", that is to say, goods consigned to a detentor, and stolen property. "For stolen goods are tainted with a loathsome provenance, and may be reclaimed from a third party pursuant to the special law. By contrast, no recourse may be had in respect of entrusted goods other than pursuant to a special contracl. Consequently, they may not be reclaimed ultra personam contrahentium [from a person other than one of the contracting parties], first, propter utilitatem commercii [for reasons relating to the efficient conduct of trade] and, second, quia certi juris est, quod nemo ex contractu alterius obligatur [because it is settled law that no (contractual) obligation is incumbent on a person who is not one of the contracting parties]."

In so contending, he briefly stated the principles underlying the indigenous law in various places: stolen goods are tainted and may - on the ground of a tort - be reclaimed from third parties, whereas goods entrusted to holders may be reclaimed only pursuant to contract: in other words, only from the holder thereof.

s.

The decision of the Court: ruinous to all traders?

As stated above, Zacharias Huber discusses this case in great detail. The matters in issue concemed not only the question as to whether a "droit de suite" attached to a hypothec over moveable property. In addition, Heringa had raised the question of the basis of Fenema's claim: was he acting as the owner of the property, as the gran tee of a hypothec or as a person enjoying rights in personam? As regards the latter question, it was necessary to determine the effect of the clausula constituti, to which frequent reference has previously been made. According to Zacharias Huber, Heringa was, as stated above, correct, inasmuch as Fenema had not acquired ownership of the property but merely a hypothecary right in relation to it. As we have seen, it was equally implausible, in Zacharias Huber's view, that Fe-

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nema could have remained the owner of the property sold by virtue of the rule relating to payment of the purchase price. After all those hurdles had been surmounted, the paramount question still remained to be determined. Thus, there was said to exist a validly created right of pledge or hypothec over a moveable asset, and the question to be decided was whether any "droit de suite" attached to that right of pledge, rendering it effective as against a third party in possession of the assel. Thc Court ruled that that was the case, and ordered Heringa to return the mare or, alternatively, to pay the purchasc price still due from the original purchaser to Fenema. Consequently, the rule mobilia non habent sequelam, which according to Zacharias Huber was on everyone's lips, did not apply in Friesland. That rule was based, he said, on an erroneous belief which, though widely held, formed no part of the law applied amongst the Frisians, who applied the legaldoctrines laid down by Justinian. It was true to say that the rule in question was upheld in the province of Holland and elsewhere, in the interests of trade, to which no sm all value fell to be attached "even amongst us [Frisians]". Nevertheless, the certain authority of the written law prevailed. Equity not only demanded that those in possession of moveable property should be afforded protection, but it also applied to creditors, who ought not to be deprived of the money advanced by them and denied the right which they had acquired. That, then, was the ruling which, to use the words of D. 1, 3, 38, the Court of Friesland gave in an unbroken line of similar decisions, thereby creating a Stilus euriae having the force of law. 47

6. Jus apud Frisios, utentes doctrina juris Justinianaei Zacharias Huber subsequently added the three cases mentioned above to the Heedensdaegse Rechtsgeleertheyt, in which his father had previously 47 See Case No 10705, in which judgment was given on 6 February 1720 in proceedings between Gosewyn van Coehoom and Yde Symons, and Case No 11082 concemjng a dispute between Claas Huberts Braem and Beert Arriens, the judgment in which was delivered on 20 December 1721. Both those cases concemed cows. In the first of them (relating to a "red-and-white cow, such coloured cows still existing (thanks be to God) in their thousands in Friesland"), the plaintiff also acted as municipal clerk, this time of Ferwerderadeel; his pleadings were to a considerable extent taken word for word from the documents in the earlier proceedings brought by his colleague from Dantumadeel. This gave rise to a lively debate (lepida disputatio) conceming a non-existent issue (non ens), since the clausula constituti on which the plaintiff relied did not appear in the auction conditions. Nevertheless, the plaintiff chattered on about the point interminably - indeed, ad nauseam, according to Zacharias Huber, in the same manner as a "non ens" was debated "in Scholis Philosophorum".

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given an account of a case dating from 1679 which concemed a hypothecated horse. In the Praelectiones, Ulrik Huber had maintained the same view at rather greater length, albeit with some slight hesitation. 48 As Fenema stated, the Court of Friesland had also ruled along those lines in a case dating from 1687. 49 In his account of that case - which was not yet available, incidentally, to Fenema - Beucker did not fail to stress that the maxim mobilia non habent sequelam, which was applicable elsewhere, for example "apud Batavos", was not observed amongst the Frisians, who applied the jus civile. The Frisians were in fact not entirely alone in their somewhat pro ud rejection of that "indigenous" maxim. Beucker had already referred to the compendium of Romano-Saxon case-Iaw produced by Benedikt Carpzov. 50 Carpzov termed the contrary result iniquissimum and absurdum. Antonius Faber (Antoine Favre), the President of the High Court of Savoy, referred somewhat disdainfully to the application of the maxim "apud Gallos" as being more or less standard customary law. 51 In his view, the rule in question was so contrary to the ratio of the ius commune that it was not accepted "by us, who apply the laws of the Romans". Naturally, areverse form of pride also manifested itself. Thus, reference was made in a "Gelderse ConsuItatie, of Advies, of Advertissement" ("Gelderland Disquisition, or Opinion, or Notice") to the "Gelderland paroemia, quod mobilia non habent sequelam in hypotheca".52 The author of the opinion considered that he had "cIearly demonstrated" the validity of the maxim "ex principiis juris Patrii, in such a way that no part thereof can be contested, whether ex jure Civili, sive ex jura Sabaudiae, sive ex jure Germaniae, so that no pleading may possibly be submitted in opposition to it". He concIuded by stating 48 Huber, Praelectiones juris civilis, III, re D. 20, I, No 10 and D. 20,4, Nos 32 & 35. See also H. Cannegieter, Dictata de differentiis juris Romani et Frisici secundum ordinem pandectarum auctore Westenbergio, M.S. 1085, Provincial Library, Leeuwarden, re D. 20, I, p. 73. 49 Beucker, Rerum judicatarum, c. 119. 50 Iurisprudentia forensis Romano-Saxonica secundum ordinem constitutionum D. Augusti Electoris Saxoniae, Frankfurt & Leipzig, 1650, Part 11, Constit. XXIII, Definit. XII. This concems adecision dating from 1632. 51 Codex Fabrianus Definitionum Forensium, et Rerum in Sacro Sabaudiae Senatu Tractatarum, Leipzig, 1706, Book VIII, Title VI, Def. XXI. This concemed a decision dating from 1594. See also Book VI, Title XXVII, Def. XI. 52 Geldersche Consutatien, Advysen ende Advertissementen van rechten, by wylen Mr Marten Alexander van Lamzweerde, en andere voomame Geldersche Rechtsgeleerden afgegeven, Amhem, 1782, Part III, LI, pp. 413-424. This concemed a "notice" submitted to the "Gentlemen of the Judiciary of the City of Amhem" by "the opposite party", Rutger Tulleken, in response to an application made to those "Gentlemen" by Arent Bongers. The issue between the parties had arisen in the 1730s.

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that "no foreign laws may take effect or find acceptance in this Province, where we have our own special law and, in particular, a body of customary law". To the Frisians, Roman law did not constitute a foreign legal system. On the contrary, the correct application of that law gave Frisian law its own identity. So it was that the Frisians noted, with due pride, that "there are still - thanks be to God - thousands of co ws in Friesland" and that Romano-Frisian law was more Roman than, for example, the mixed system of Roman and indigenous law applied in the provinces of Gelderland or Holland, the latter being also known as Roman-Dutch law. 53

53 However, under the law applying in the Rhineland, this case would have been determined in the same way, as Grotius (Inleidinge, 11, 48, 29) observes.

Chapter VII

"A little bit longer": Or "How much longer Roman feet were than Frisian ones" Can the proprietor 0/ a servient tenement relocate a servitude? 1. Vexatiousness? Feije Jans was heartily fed up with the situation. His neighbours enjoyed, it is true, the benefit of a servitude allowing them freely to pass and repass - or, in short, a right of way - over that part of the Canterland at Giekerk wh ich he owned, but they crossed diagonally back and forth over the land, roaming wherever they liked and wherever their whim took them. This had a severely detrimental effect on the land, and made it quite impossible for hirn to improve the land or, from time to time, to make the best use of it. He therefore dug out and removed a causeway over which his neighbours had hitherto had access to his land, constructed a new path alongside that land and separated this from the rest of his property by means of a ditch. In so doing, he designated a fixed route for the use of those entitled to the benefit of the servitude, taking the view that he had every right to do so, if not on equitable grounds then at any rate pursuant to the law - that is to say, Roman law. For, after all, what benefit could he derive from his own property if his neighbours could freely pass "back and forth" over his land? "Citizen" Abraham Bruinsma appeared as the husband and guardian of "his spouse" Clara Maria Zijlstra, and as the proxy for a total of eighteen beneficiaries of the servitude from Giekerk and Wijns, in the proceedings which were comrnenced on 20 November 1798. He applied to the Court of the former Province of Friesland for a declaration that he was entitled, as a matter of law, to the benefit of the servitude, and for an order requiring Jans to permit and allow the use thereof and to construct the necessary dams or causeways within twice four and twenty hours. Bruinsma and his fellow claimants denied that Jans had any right to move the route over his land. Those by whom it had been used were now obliged, it was claimed, "twice a day to joumey much further with the milk" than they had had to do when they were able to ride diagonally across Jans' land. For those liv-

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ing in Wijns and Giekerk, the loss of the ancient path leading to the church and graveyard was inconvenient. Above all, however, the displacement of the path was said to cause the fanners "considerable inconvenience in the busy haymaking season, when every prudent fanner hastens to bring in his hay into the dry". Jans dismissed all this as nothing more than vexatiousness. After all, had he not, at his own expense - "at least thirty guilders" -, gone to the trouble of providing a new route? Was not that route far more easily negotiable than the old one? Had he not, in acting for his own benefit, at the same time benefitted each of those persons having an interest in the matter? "And that was how he had been rewarded for his pains!" He conceded that the new route was "a little bit longer". That was self-evident, "since a li ne going round a corner is invariably longer than a straight line". However, the beneficiaries did not always travel in a straight line; they tended to roam about. Consequently, he argued, the difference was minimal. He had acted with the best of intentions, and was fully confident that the matter would turn out for the best. On 15 July 1801 the Court of the fonner Province of Friesland was called upon to adjudicate on the question whether Jans had been entitled to move the route elsewhere. It proceeded to do so, ruling no longer for and on behalf of the Sovereign Domain of Friesland but "in the name and on behalf of the Batavian people". I

2. In a proper manner In 1798 the Batavian Republic was declared as being a single and indivisible State. This brought to an end the independence as a region which Friesland had enjoyed under the Republic of the Uni ted Netherlands. Consequently, the Court ceased to be the Court of the Sovereign Domain of Friesland, becoming instead the Court of the fonner Province of Friesland. However, it was to be several years yet before the judicial system of the new Republic was adapted to the unitarian polity. It was not until 1802 that the Nationaal Gerechtshof (National Court of Justice) began to function as the supreme court of the entire Republic. 2 Until then, the Frisian Court remained the highest court hearing Frisian cases. And while the Cras Committee had since 1798 been making fruitless efforts to draw up a draft code incorporating, inter aUa. rules governing the sphere of private law, the ap-

Case No 16002. For a recent account of these developments, see E. C. G. Bauwens, Het Nationaal Gerechtshof 1802-1811, prf. Leyden, Amsterdam, 1997. 1

2

9 LokiniJansenIBrandsma

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plicable law remained the same as before: thus, in Friesland Roman-Frisian law continued to be applied. Bruinsma and Jans were at odds, in particular, over the legal question as to whether, under Roman law, Jans had the power to relocate which he arrogated unto hirnself. The parties exchanged as many as three sets of pleadings on this issue (including a rejoinder, a surrejoinder and arebutter), which became steadily more detailed as the litigation proceeded. Bruinsma even had to seek Ieave to serve his surrejoinder, since it contained over a hundred paragraphs. Thereafter, Jans likewise took care to obtain leave to serve arebutter comprising more than a hundred paragraphs. Finally, in the post-interlocutory phase of the proceedings, each of the parties further lodged a remonstration. The text on which the parties were in particular disagreement was D. 8, 1, 9, wh ich originated from Celsus. Where, without being specified, a right of way is granted or bequeathed to a person over another person's land, the former shall be entitled to pass and drive cattle thereover without restriction - that is to say, over any part of the land in question -, but only in a proper manner. For, in common parlance, various things are tacitly excluded: thus it is impermissible for the person in whom the right is vested to pass or drive cattle through the homestead itself or diagonally through the vineyards if he may do so just as easily and with less damage to the servient tenement by proceeding over another part. On the contrary, it is firmly estabIished that the person in whom the right is vested may only pass or drive cattle over those parts where he first marked out his route, and that he is not empowered subsequently to alter that route. Sabinus also held that view. By way of an argument in support, he cited the case of a watercourse which a man might lead where he pleased at the outset, but whose course he could not change once it had been determined. It is right that this should also be taken into account with regard to a right of way.3

The parties were agreed that that text concemed unspecified servitudes that is to say, servitudes in respect of which the person who had created them had not specified over precisely which part of the servient tenement the right of way was to be exercised. In such a case. the person in whom the right was vested cou1d in princip1e exercise his right over the whole of 3 D. 8, I, 9: Si cui simplicius fit has been assumed, for the purposes of translation, that the word should read simpliciter] via per fundum cuiuspiam cedatur vel relinquatur, in infinito, videlicet per quamlibet eius partern, ire agere li cebit, civiliter modo: nam quaedam in sermone tacite excipiuntur. non enim per villam ipsam nec per medias vineas ire agere sinendus est. cum id aeque commode per alteram partem facere possit minore servientis fundi detrimento. verum constitit. ut. qua primam viam direxisset. ea demum ire agere deberet nec amplius mutandae eius potestatem haberet: sicuti Sabino quoque videbatur. qui argumento rivi utebatur. quem primo qualibet ducere licuisset, posteaquam ductus esset. transferre non liceret: quod et in via servandum esse verum est.

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\3\

the servient tenement. However, that had to be done in a proper manner civiliter. For example, in exercising the right, the person in whom it was vested had to take into account the interests of the owner of the servient tenement. He could not choose a route which caused detriment to the owner of the servient tenement, if he could just as easily take another route without causing that owner any detriment. Once he had chosen a specific route, he was thereafter required to keep to it, and could no longer change it. The primary issue on which the parties disagreed was whether this particular case concemed a specified right of way. lang argued that the right of way was not a specified one, since the persons in whom it was vested made use of the whole of his land, crossing over it in whichever way they might think fit. Had there been a specified route, the manner in which he had acted would indeed have been more questionable, but, by the same token, he would ne ver have had so many problems over the use of his land. He would still have been able to derive some benefit from the rest of his land. As matters stood, he was unable to do so, since people were passing over the whole of the land. According to lans, the fact that the land had for a long time been crossed "diagonally" did not mean that an unspecified right of way had become a specified one. It merely showed that the land was crossed at an angle, as opposed to along its borders. Those crossing it did not always keep to the same route, as would necessarily have been the case if the right of way had been a specified one. In opposition to this, Bruinsma stated that the right of way might perhaps once have been unspecified. He could not, he said, provide any particulars as to the manner in which it had come into existence. What was quite certain, however, was that the right had been exercised by hirn and his predecessors for some thirty or forty years, or indeed since time immemorial. It had been exercised by crossing the land diagonally, and this had led to the right becoming a specified one. According to Bruinsma, once the right was specified it could no longer be changed, or could only be changed by mutual agreement. Bruinsma contended that the specification or designation of an unspecified right of way could take place in three ways. First, D. 8, 3, 13, 1 referred to the appointment of an arbitrator to detennine the course of the way or path in question in the event that such a right of way was bequeathed without being precisely specified. Suppose that a right to cross over land is bequeathed without any geographical indication of the route to be taken. In such a case, the boundary shall be determined straight away, and the servitude will then exist where the first route is traced out; the remaining parts of the parcel of land remain unencumbered. Thus an arbitrator must be appointed to determine the course taken by the path. 4

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A second way in which the right could be specified was by means of the indication by the owner of the servient tenement of that part of his property on which the servitude is to be exercised. In support of this, Bruinsma cited D. 8, 3, 26, which provided as folIows: Where a right of way, of passage or to drive draft annimals or vehicles over, or a right to have a water pipe running through, (another person's) property is bequeathed without any specification of the route which it is to take, it is open to the owner of the property to establish the servitude on that part of the land which is chosen by hirn, so long as he does not cause any detriment to the legatee as regards the lauer' s servitude. 5

The third way of specifying the right was derived from the Celsus text, D. 8, I, 9, cited above; this provided that, once the person in whom the right was vested had exercised an unspecified right of way in a specific manner, he could no longer deviate from the chosen route. Thus, that text afforded the person in whom the right was vested the possibility of choosing a specific route. However, according to Bruinsma, these three ways of arriving at a specification or designation of a servitude were practicable only if the route still remained to be specified - in other words, if it could still be said that the servitude was unspecified. Once the route had been specified, however and this could be done by either the person in whom the right was vested or the owner of the servient tenement, not to mention the arbitrator -, neither of them could change the route chosen or indicated without the consent of the other. The fact that the person in whom the right was vested was not entitled to change it was expressly provided for by the wording of D. 8, I, 9. The impermissibility, on the other hand, of any such change being made by the owner of the servient tenement was inferred by Bruinsma from the same text in the Digest, on the basis that it made no mention whatever of the owner being empowered to change the route of the servitude. What applied in relation to one of the parties also applied with regard to the other: they had the same obligations and the same rights. Bruinsma contended on that basis, as stated above, that the specification had already taken place; and, since the texts cited related only to cases in which it had yet to take place, there was thus no legal basis for finding that laos was empowered to move the route or the right of way. 4 D. 8, 3, 13, I: ... Si iter actusve sine ulla determinatione legatus est: rnodo determinabitur et qua prirnurn iter determinaturn est, ea servitus constitit [the word appearing in the text is consistit1, ceterae partes agri liberae sunt: igitur arbiter dandus est, qui utroque casu [the words utroque casu have been left untranslated1 viam determinare debet. s D. 8, 3, 26: Si via iter actus aquae ductus legetur sirnpliciter per fundurn, facultas est heredi, per quarn partern fundi velit, constituere servitutern, si rnodo nulla captio legatorio in servitute fit.

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Jans persisted with his argument that the route was unspecified. This, he claimed, was detrimental to the owner of the servient tenement and thus to hirnself; and for that reason, the laws cited empowered hirn to indicate a fixed route. A servitude had to be used in a way which caused the least possible detriment to the owner of the servient tenement, who had to be capable of still deriving some benefit from his land. This was all quite clear from the wording of D. 8, I, 9. 6 Moreover, the principle of equity was on his side; for what benefit could he derive from his land if those in whom the right was vested were freely able to cross "hither and thither" over his land? No specification of the route had ever taken place. Was it not the case, therefore, that Bruinsma's claim was "totally inequitable; incompatible with the nature of servitudes; likewise, inconsistent with the laws themselves?" According to Jans, Bruinsma was attempting to give those laws a "very distorted twist". The laws in question, and particularly D. 8, I, 9, generally allowed a route to be moved elsewhere. After all, they did not provide that the persons in whom the right was vested were permitted to pass over his land by whatever route the mood took them. They were required to do so in such a way as to cause the least detriment - in other words, by taking the new route. He was empowered, he said, to specify a route where none had previously been specified. Bruinsma hirnself conceded that. However, suppose for one moment that, instead of there being a situation in which no route had yet been specified, such a route had in fact been specified, irrespective of how it had come into existence. Why should he not have the power to designate another route in place of the specified one, if he enjoyed that prerogative where no specification or designation had yet taken place? The rationale for the right to move the route elsewhere was really the same in both cases: so that the owner should not be precluded from deriving any benefit from his property, and so that the least possible detriment should be caused to the servient tenement. Jans referred in this regard to the Jurisprudentia Forensis of Hellfeld, who inferred from D. 8, I, 9 that a servitude must be exercised in such a way as' to cause the least detriment to the owner of the servient tenement, and from D. 8, 3, 26 that an owner who designated a specific part of his property for the exercise of the servitude had necessarily to be in the right where the servitude could be exercised just as easily on that part as on the whole of the land. 7 Where the same rationale existed in both cases, the situation in law must be the same in both cases: ubi eadem ratio, ibi eadem legis dispositio. 6 Jans referred in this regard to Domat, Traite des Loix Civiles, Book I, Title 12, Section I, [for which, read: 9]. 7 A. Hellfeld, Iurisprudentia Forensis secundum pandectarum ordinem, (e. g.) Jena, 1806, VII, I, No 630.

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Jans took the view, therefore, that he had every right to move the route elsewhere, and that his reasons for doing so were perfectly adequate. He went on to submit that the leamed authors of legalliterature did not differentiate between the various situations and that they acknowledged the owner of the servient tenement as having the right "without distinction" to move the route elsewhere. First of all, he relied, as a matter of course, on Huber and his Heedendaegse Rechtsgeleerdheyt, since, according to Jans, Huber recognised that the owner of the servient tenement was generally empowered to designate that part of his land over which those in whom the right of way was vested might go. A servitude is to be understood as attaching (0 the entire property, and to all parts thereof, such that the proprietors of the dominant tenement enjoying the right of way or right to use a footpath may exercise that right over whatever part of the land they like, albeit that they must do so in a civil fashion and without causing any detriment to the servient tenement, the owner of which is at liberty to designate a specijic part thereof through or over which the path, way or waterconduit is to TUn; moreover, it seems that he may weil be entitled to change the place in question and to designate a path which is better situated from his point of view, provided that this does not cause any signijicant inconvenience to the proprietors of the dominant tenement. 8

Huber states in the passage in question that the owner of the servient tenement could himself change the route taken by the path and specify a different one to the person in whom the right of way was vested, if the latter route suited his purposes better, provided that this did not cause any "significant inconvenience" to the person enjoying the right of way. Remarkably enough, or perhaps advisedly, Bruinsma did not comment on the view expressed by Huber, or at any rate hardly at all. This was perhaps initially due to the fact that Jans twice gave the wrong citation in respect of the passage in question. However, after Jans had stated the correct reference for it in his rebutter, Bruinsma did not revert to that point in his postinterlocutory remonstration. He continued throughout the proceedings to base his position on the wording of D. 8, 1, 9, which did not mention, in so many words, the existence of any such power. Having cited Huber, Jans then proceeded to reiy on Voet. According to Jans, Voet was equally unequivocal with regard to the disputed prerogative of the owner of the servient tenement. Voet started by claiming, on the basis of D. 8, 3, 13, 1, that the person in whom the right of way was vested could no longer change the route taken by his servitude once he had chosen 8 Huber, Heedendaegse Rechtsgeleerdheyt, 11, 43, 18. He refers to D. 8, I, 9, D. 8, 3, 13, I, D. 8,3,26 and the section entitled "Auteuren" in B. van Zutphen's Practycke der Nederlandtsche Rechten, Groningen, 1680, re voc. Servituyt, (for which, read: 17).

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a specific part of the servient tenement for the purposes of exercising his right. He nevertheless went on to state: However, all that does not prevent the owner of the servient tenement from being able to alter the route taken by the footpath or way and to designate or specify another one in place of that which had previously been specified by virtue of having been chosen or agreed, provided however that this does not cause any detriment to the owner of the dominant tenement. 9

Thus, the owner of the servient tenement was indeed at liberty to designate another part of his land for the exercise of the servitude, different from that which he had previously specified - provided, at any rate, that this did not prejudice the interests of the person in whom the right of way was vested. According to Jans, Voet was correct in reaching that conclusion on the basis of the texts cited.

3. The communis opinio doctorum The texts quoted by Voet in support of his view that the owner of the servient tenement was entitled to alter the route included, apart from those already cited - namely D. 8, 3, 13, 1 and D. 8, I, 9 -, a fragment from the Digest which had played a crucial role in the development of the view to wh ich Voet, inter aUa, adhered. The fragment in question was to be found in D. 11, 7, 2, 8. This was a text which had already been linked, through the Oloss, with D. 8, 1, 9; and the question which arose in relation to that text was whether the owner of the servient tenement was empowered to move a servitude elsewhere. D. 8, 1, 9 contained a passage stating that the owner of the dominant tenement was not permitted, once he had chosen that part of the servient tenement which he wished to use, subsequently to alter that choice. The following appeared in the Oloss in that regard: ... but the owner (of the servient tenement) may, where there is reason so to do, change the servitude, provided that this does not inconvenience the person to whom the servitude is owed; see D. 11, 7, 2, 8. 10

According to that gloss, where the owner of the servient tenement had some reason or causa for changing the servitude and this would not disadvantage the person in whom the right of way was vested, the owner was empowered to make that change. The circumstances from which that conclusion was to be inferred were set out in D. 11, 7, 2, 8, referred to above. 9 Voet, Commentarius ad Pandectas, re D. 8, 3, No 8: ... Quae tarnen non impediunt, quo minus domino praedii servientis mutare Iiceat, & aliud, quam prius electione vel conventione designatum fuerat, spatium ad iter actum viam assignare; si modo nullum inde praedii dominantis domino praejudicium generetur ... 10 Gloss Non liceret, re D. 8, 1, 9: ... sed dominus potest ex causa mutare sine incommodo eius, cui debetur servitus: ut infra de relig. I. ii § pen.

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No-one may consecrate a place which is encumbered with a servitude without the consent of the person to whom that servitude is owed. Where, however, the latter person may just as easily exercise the right attaching to that servitude by proceeding via another place, the burying is not to be regarded as being done to cause any impediment to the servitude, and so the pI ace becomes consecrated. This is undoubtedly reasonable. 11 Although, strietly speaking, that text does not provide a direet answer to the question whether the owner of a servient tenement was generally empowered to move a route elsewhere, that prerogative was inferred by the glossators from the speeifie cireumstanees deseribed, in whieh the owner had on his own authority eonseerated as a [oeus religiosus that part of his property whieh was subjeet to a servitude and had indieated to the person to whom the servitude was owed another part of his property for the exereise of the right attaehing to it. The Gloss eonstrued that text in the wide manner eharaeteristie of it, and inferred from the text in question the existenee of the general prerogative referred to. Bartolus hirnself subseribed to that view, and it beeame thereafter the communis opinio doetorum. 12

4. Roman-Dutch law Voet was not the only Roman-Duteh author to adopt the view expressed by the Gloss and by Bartolus. Van Leeuwen 13 and Van der Keessel 14 Iikewise held that opinion. Van Zutphen dealt with the question in his Practycke der Nederlandtsche Rechten, as folIows: The question which arises is this: where a person is required, on account of a servitude, to allow water emanating from his neighbour's property to pass through his land, and where he has for some time allowed that water to pass through a specific place on his property, can he subsequently change the servitude in respect of the passage of water, so as to conduct the water, or cause it to pass, through another place on his property? The answer must be in the affirma11 D. 11, 7, 2, 8: Locum qui servit nemo religiosum facit, nisi consentiat is cui servitus debetur. sed si non minus commode per alium locum servitute uti potest, non videtur servitutis impendiendae causa id fieri, et ideo religiosus fit: et sane habet hoc rationern. 12 Bartolus, Commentaria ad primam Digesti veteris partern, Lyon, 1552, re D.8, 1,9, No 5. \3 S. van Leeuwen, Het Rooms-Hollands Regt, Amsterdam, 1720, 11, 21, 6: ". .. and once someone has adopted his position in that regard, he may not subsequently alter it; it may be altered only by the person by whom the servitude is owed, without causing any inconvenience or obstac1e to the person to whom it is owed ... " (he refers inter alia to D. 8, 1,9, D. 8, 3, 13, I and D. 11, 7, 2, 8). 14 D. G. van der KeesseI, Praelectiones Iuris Hodiemi ad Hugonius Grotii Introductionem ad Iurisprudentiam Hollandicam, III, Amsterdam/Kaapstad, 1964,770, re Grot. 2, 35, 6.

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137

tive, if this does not cause any prejudice or harm to the person to whom the servitude is owed, but not otherwise. 15

The Hollandsche Consultatien similarly contained an opinion arguing in favour of that point of view. This concemed a case in which A had a "simple servitude" consisting of a right of way over B's property. A had installed a dOOf in the common fence running between the two properties through which he was able to exercise his right of way. After a certain amount of time had elapsed, however, B desired to use that part of his property where the door was located "for the purposes of the more commodious disposition of his buildings". Consequently, he wished to move the door some distance away, but in such a way as to enable A to retain the servitude which he enjoyed and to continue using it "in an equally practicable and convenient manner". The quest ion that arose was whether B was empowcred to do so. Adriaan van Stryen opined in Haarlem on 21 February 1662 that B was so empowered. Having established that a person who had acquired an unspecified servitude - "simple" was the term used by hirn - was entitled to choose which part of the servient tenement he wished to use, Van Stryen went on to point out that, once the beneficiary of the servitude had made his choice, he could not alter it. However, that rule applied only in relation to the person in whom the right of way was vested; it did not apply to the owner of the servient tenement. This was because the laUer could alter the arrangement if he had some reason to do so, provided that this did not inconvenience the person to whom the servitude was owed, as was stated in the gloss non ticeret. Van Stryen also cited at length Bartolus and various other authors to whom the communis opinio doctorum could be traced back. He concluded with a statement of the reason for this difference of treatment: The reason is quite clear: it is that the person cui servitus debetur, "to whom a servitude is owed", retains not only his right but also the same amenity of being able to exercise that right with the same facility and convenience as before, and consequently should not be permitted, where reasonable grounds exist, to prevent or hinder quod sibi non nocet & alteri aut vicino prodesse potest, i. e. something which does not prejudice his own position and which may benefit the other person or neighbour". 16

IS B. van Zutphen, Practycke der Nederlandtsche Rechten, Groningen, 1680, s.v. servitude, No 17. He refers inter alia to the Gloss, to Bartolus and to the Syntagma Comrnunium Opinionum sive receptarum sententiarum, Lyon, 1608, Book III, Title XXI, No 11. 16 Consultatien, Advysen en Advertissementen, gegeven en geschreven by Verscheyde Treffelyke Rechts- Geleerden in Holland en elders, Part V, Utrechtl Amsterdam, 1747, observation No 50.

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It followed that the view expressed in the gloss non liceret, to which Voet subscribed, also perrneated Roman-Dutch legal practice. The owner of the servient tenement was empowered to move the route elsewhere if that could be done without causing detriment to the owner of the dominant tenement. 17

5. Back to the proceedings between Bruinsma and Jans and Roman-Frisian law As stated above, Huber took the same view as that expressed by Voet, with the result that, if there could indeed be said to exist an unspecified servitude, Jans appeared to be in the right. The quest ion would very much appear to be whether Bruinsma was correct in c1aiming that the servitude, however it might originally have come into existence, had in the interim become a specified one on account of the land having been crossed diagonally. It seems that the term "specified servitude" must be understood as meaning a servitude the content of which was fixed when it first came into existence - in other words, a servitude in respect of which, during the negotiations for its grant, a specific part of the servient tenement was designated as the part on which the servitude was to be exercised. In such a case, the content of the servitude was precisely agreed between the parties, and could be altered only by mutual consent. This must be contrasted with an unspecified servitude, also referred to by the terms "simple" and "simpliciter", to which a different regime applied, on account of the fact that it had not been created on any specified basis. But specification or designation of the route to be taken in this case could weil pursue a practical objective, namely the demarcation of the possible uses of the land in question which might respectively be made by each of the parties. The decisive factor in that context was the use or benefit which the owner of the servient tenement should be permitted to continue to derive from his land, provided at any rate that this did not render the other person's right worthless; and this c1early emerged from the nature of that type of servitude. The reason for this was that, in such a case, the owner of the servient tenement had not expressly created a more onerous type of servitude, and it was a generally accepted princi17 It is interesting to note the following ground stated by De Villiers AR in the South African case of Gardens Estate Ltd v Lewis [1920] A.D. 144, at p. 150: "A definite servitude having originally been constituted, it could only be altered by mutual consent. In this respect a servitude as eonstituted [in this case] differs from a servitude created simplieiter (Dig. 8.1.9). In the latter case, according to Voet, 8.3.8, the owner of the dominant tenement has the election where to lay the line, whieh he must however exercise eiviliter. If he has once exercised his election, he eannot afterwards change. But the owner of the servient tenement would have the right to do so, provided the new route is as convenient as the old one (Rubidge v McCabe [1913] A.D. at p. 441). When Voet (Ioc. eil.) says that the owner of the servient tenement has the right to point out another route to that which has been agreed upon (vel eonventione designatum fuerat) he speaks of servitudes ereated simplieiter. "

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pie of interpretation that, where uncertainty existed as to the content of a servitude, the construction to be chosen and applied had to be that which was least burdensome to the owner of the servient tenement. However, in the case of an unspecified servitude, the nature of the servitude in question was not altered by the fact that, in due course, a specific choice was made as to the way in which, or the route over which, the servitude was to be exercised. Even where the parties subsequently concluded an agreement as to its exercise, the owner of the servient tenement retained - according to Voet, at least - the option of, for example, moving the route elsewhere. 18

However, there remained one further hurdle to be surmounted before Jans could prevail. This was because he was empowered to move the right of way only in so far as those in whom that right was vested did not suffer any prejudice as a result of its being changed. The parties naturally disagreed on that point also. laos claimed that he had done his best, and that he had installed a new route which served its purpose better than the old one. The beneficiaries of the right of way could not, he said, be deemed to have suffered any disadvantage. It was true that the new route was a little bit longer, but that small disadvantage was more than offset by the advantages. The new route was negotiable in wintertime as weIl as in summertime; the old one was not. He had appended to his pleadings a plan showing the situation; this was intended to facilitate the task of the justices, but the distances indicated on it were not drawn to scale. Even so, Bruinsma's argument that the new route was twice as long was a gross exaggeration, he said. According to Jans, his interests were served, inasmuch as he was now at last able to use his land in a proper manner, and the interests of the beneficiaries of the right of way were in any case equally weIl served, if not better. Moreover, the new route was wide enough to enable two vehicles to pass each other. This had been tested and found to be the case by three persons who also had an interest in the servitude. In the circumstances, Jans was unable to understand why Bruinsma and the others should be making such a fuss over the matter. They must be biased against hirn. Bruinsma claimed in opposition to this that the new route was far too narrow, that it was unusable and could never be made usable, and that it obliged those passing along it to make adetour the distance of which was twice as long as that of the old route. The farmers were required to proceed along it twice a day in order to milk the cows. The hay wagons moving back and forth during the hay-making season could not pass each other on 18 See the case referred to in footnote 17. It is not unreasonable, however, to wonder whether Voet might have been seeking to attribute to the owner of the servient tenement a general right to move the route taken by the servitude, regardless of whether the route in question was specified by a choice made subsequently or whether it had been specified straight away pursuant to an agreement made when the servitude was first created.

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the new route. A width of eighteen feet was needed in order for two laden hay wagons to pass one another, and the new route was only nine feet wide "by Frisian measurements". It was aB very weB for laos to say that a route eight feet wide was sufficient according to Roman law, but, in so stating, he had not indicated "how much longer Roman feet were than Frisian ones".19 The danger that, in the course of passing each other, one vehic1e might end up in the ditch was by DO me ans purely imaginary. After proceedings lasting alm ost one and a half years, the Court delivered an interlocutory judgment on I April 1800. It ruled that the parties were to provide information and granted them leave to adduce further evidence. The Court was not yet in a position to determine the case, since the facts were in dispute. That meant that it was manifestly unable to reach a decision merely on the basis of the question of law which had been debated. Had Bruinsma been correct in c1aiming that there existed a specified servitude which operated to deprive the owner of the servient tenement of the contested power, then an interlocutory judgment would not have been necessary. So the Court must have decided that, in principle, laos did indeed have that power and that Huber's analysis accurately reflected Roman-Frisian law in that regard. As it was, in order to answer the question whether the displacement of the route caused Bruinsma and his fellow c1aimants "significant inconvenience", it was necessary for the Court accurately to establish the facts. The distance to be covered via the new route indeed tumed out to be considerably Ion ger. The question whether two fuBy laden hay wagons could pass each other posed an equally difficult problem, especially for vigilant farmers. In the circumstances, one is inc1ined to think that the reason for which the Court ultimately found in favour of Bruinsma and his fellow c1aimants on 15 luly 1801 was based on the consideration that Roman feet were longer than Frisian ones.

19 Tbe Law of the Twelve Tables had indeed specified that a road or way must be eight feet wide: D. 8, 3, 8.

Chapter VllI

The disappointed heir: The unwilling victim of the cautio Socini I A jurist must do as Luther did, and not as Zwingli did, whenever there was a dispute as to whether or not to continue to observe an ecclesiastical practice. Zwingli asked: wh at text is there against it? Luther asked: what text is there in support of it?2 Lumina Johanna Wijnhouts, the widow of Colonel Jacob Cramer, was the mother of three daughters: Geertruid Maria, Johanna Lucretia and Maria Lucretia. A year before her death, she decided, "having given some thought to the uncertainty of the hour at which death will surely arrive to carry us off', to alter her will, with particular regard to the position under the law of inheritance of her youngest daughter, Maria Lucretia. As the mother of her three daughters, Lumina proposed that they should all inherit equally under her will, but there was a catch in the arrangements as far as Maria was concerned. "But, for reasons of my own relating to the protection of her best interests, I encumber the share of my estate which I leave to my youngest daughter Maria Lucretia Cramer with a jideicommissum, it being my desire that the property which she shall inherit from me should upon her death devolve, without deduction therefrom of the legitimate and Trebellianic portions, unto such child or children as she may leave; and in the event that she dies without leaving a child or children, then the property which she has received from me is to pass and devolve, again without deduction therefrom of the legitimate and Trebellianic portions, unto my two other daughters, or to their descendants by representation (... ) and I forbid my aforesaid daughter to undertake the alienation or administration of the said estate (... )." The two other daughters, unlike Maria, were given a right of "alienation" and "administration" in respect of their portions. Their mother directed that, in the event that they should die before the will was read, their respective children should inherit, without deduction of the legitimate and Trebellianic Case No 14900: judgment dated 14 July 1770. C. W. Opzoomer, Het Burgelijke Wetboek verklaard, Part 4, Amsterdam, 1871, p.329. 1

2

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portions. She concluded her last will and testament with the following direction: "I further direct that my children and heirs should be satisfied with these my dispositions; in the event, however, that one or other of them is not inclined to approve the arrangements hereby made by me, then 1 revoke the aforesaid dispositions in respect of her and direct that the daughter in question is to inherit from me only to the extent of the legitimate portion due to her according to law (... ). 1 thus give to my heirs the freedom to choose whether they wish to enjoy the whole of their respective shares in my estate subject to the encumbrances attaching thereto or instead to accept the legitimate portion without any encumbrance; and 1 direct that they should state their decision in that regard in writing within fourteen days after leaming of the contents of this will, and that, should any one of them fail to make such a declaration, she shall be deemed to have chosen to take the legitimate portion."

Maria Lucretia was not content. She feit that she was being punished by her mother. Therefore it is not surprising that at the very moment of mother's death a bitter lawsuit arose between the sisters Geertruid and Johanna on the one hand and Maria on the other, with the validity of their mother' s will being at stake. Maria described the disposition which her mother had made in relation to her as a fraus legis. The lawyer whom Maria instructed to assist her fully appreciated her frame of mind. He expressed hirnself in a sour tone, sometimes uttering bitter reproaches directed at the opposite party, who in his view was simply working old arguments to death without refuting Maria's fundamental objections, "repeating things ad nauseam" and boring the bench of justices "by reading out various passages of law" which had been indiscriminately copied out from the works of other jurists. All this was ultimately to be of no avail to Maria.

1. A c10ser look at the law governing testamentary dispositions The idea slowly developed in Roman law that it is not right and proper to fail to make adequate provision in one's will for one's closest relatives. Certain specified heirs acquired the right to a part of the inheritance which could not be taken away from them by the testator. That part (subsequently) became known as the portio legitima or legitimate portion. At the same time, a special action came into existence, known as the querela inofjiciosi testamenti (complaint conceming an uncharitable will), which could be asserted in the case of a violation of the right to receive the legitimate portion. Justinian decreed that the portion in question was to amount, in the event that there were four or fewer children, to one third of the non-disposable part of the estate. 3

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The testator could impose on his heir an obligation to comply with a direction requiring the latter to distribute all or part of the inheritance to another person. Such a direction was known as a jideicommissum. Some testators made such excessive use of that option that the heirs feIt themselves compelled to renounce the entire inheritance, in which event the jideicommissa also lapsed. In due course two senatorial decrees were promulgated, improving the heir's position: the Senatus consultum Pegasianum4 and the Senatus consultum Trebellianum 5 . The interaction between the two senatorial decrees brought into existence a complex set of legal ruIes. lustinian integrated and simplified the content of the two senatorial decrees and subsequently repealed the Senatus consultum Pegasianum. 6 According to the law as laid down by lustinian, the fideicommissary successor stepped into the shoes of the heir under the will once the rights in rem had been assigned to hirn by that heir. The creditors of the estate were required to claim against the fideicommissary as if he were an heir under the will, and the fideicommissary was hirnself placed in the position of being able to bring proceedings against the debtors of the estate. The heir under the will could then accept the inheritance, since he was released from any future financial difficulties. In addition, the heir under the will was empowered to withhold the fourth part. That part came later on to be referred to as the "Trebellianic" portion. 7 Tbe rules of Roman law concerning the Iegitimate and Trebellianic portions were adopted in Friesland. Huber defined the legitimate portion as "a part of the estate which the law necessarily requires to be left to that person who, on account of the ties of blood, may not be disinherited or passed over". The basis of the legitimate portion was to be found not only in civil law but also in "natural law". The consequence of this was that the legitimate portion may never be done away with, but it can be reduced or increased. As in lustinianic law, the legitimate portion accruing to each child was one third of what he would have received on intestacy, on the basis that there were not more than four children. 8

3 Nov. 18, chapter l. See J. C. van Oven, Leerboek van Romeinsch privaatrecht, third impression, Leyden, 1948, paragraph 371 et seq. 4 Inst. 2, 23, 5. See also Gaius, 2, 254 and 256 et seq. 5 The literal text is set out in D. 36, I, I, 2; see Inst. 2, 23, 4. See also Gaius, 2, 253 and 255. 6 Inst. 2,23, 7; see Huber, Heedendaegse Rechtsgeleertheyt, n, 19, 19. 7 Although that right originated from the Senatus consultum Pegasianum. See in that regard Van Oven, Leerboek van Romeinsch privaatrecht, para. 364; Girard, Manuel elementaire de droit Romain, fifth edition, Paris, 1911, pp. 934-935. 8 Huber, Heedendaegse Rechtsgeleertheyt, n, 22, 6, 7 and 20.

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According to the account given by Huber, the Senatus consuLtum TrebeLLianum had a threefold effect in Friesland at the time at which he was writ-

ing. First, an heir on whom the encumbrance was imposed could be obliged and compelled to hand the inheritance over to the second party, in accordance with the direction given by the testator. Second, the heir on whom the encumbrance was imposed was entitled to deduct a quarter part of the property, which he was free to keep for himself. Third, all actions, burdens and benefits passed, as to three quarters, to the beneficiary or second heir, those in respect of the remaining one quarter being retained by the heir on whom the encumbrance was imposed. 9 So far, no differences can be discerned between Roman-Frisian law as described above and lustinianic law. However, there was a difference in the following situation. Where parents imposed on their children a direction prohibiting them from alienating the inheritance and requiring them, subject to certain conditions, to leave it to another, then, according to Huber, the children were permitted to withhold both the legitimate portion and the Trebellianic portion. Tbat deduction of the two portions, as it was termed, was probably not possible under lustinianic law. 1O It could be traced back to a canon originating from the DecretaLs of Gregory IX, the so-called Liber extra, and came, over the course of time, to be established in the Republic, including inter aUa the provinces of Holland and Friesland. 11 In 1723 the Frisian Landsordonnantie laid down on a statutory basis the law as outlined by Huber. That ordinance provided that "children and grandchildren on whom a fideicommissum is imposed ... may deduct both the legitimate portion and the Trebellianic portion". It was likewise decreed - presumably, contrary to lustinianic law - that the testator could not prohibit heirs once removed from deducting the two portions. 12

2. The cautio Socini Tbe statutory wording cited above would seem to have come as music to the ears of Maria Lucretia in her proceedings: it appeared quite clearly to express the principle that parents may not deprive their heirs once removed - or at least not directly - of the right to deduct the two portions, namely the legitimate portion and the Trebellianic one. Having regard to the will of Huber, Heedendaegse Rechtsgeleertheyt, 11, 19,20-22 and 84. See C. 6, 49, 6. 11 X 3, 26, 16; see Huber, Heedendaegse Rechtsgeleertheyt, 11, 19, 85; Voet, Commentarius ad Pandectas, re D. 36, 1, No 52, and Grotius, Inleidinge, 11, 20, 10. See also H. Coing, Europäisches Privatrecht 1500 bis 1800, Volume I, Munieh, 1985, p. 580 et seq. 12 See Hamerster, Statuten, Ordonnantien, 1.19.10 and 11. 9

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Lumina Wijnhouts, the question arises as to whether it might not be permissible indirectly to do so. It was relatively common practice in Holland and Friesland for parents to designate their children as heirs subject to a jideicommissum, in such a way that the children were given the choice as to whether to accept the will, including the jideicommissum and the dispositions made (such as provisions prohibiting alienation and administration and/or deduction of the Trebellianic portion, and suchlike), or whether - if they were unable to agree to the will - to be satisfied merely with the unencumbered legitimate portion. The clause "si voluntati meae non consenserit ex sola legitima heres esto" ("if he does not agree with my last will, then he must inherit only to the extent of the legitimate portion,,)13 was known as the cautela or cautio Socini, after consilium 122 in the consilia of Marianus Socinus (who died in 1566), but it probably dates from earlier times. 14 Was that clause permitted? Maria argued that the cautio Socini was really a classic example of fraus legis. It typified the way in which parents arranged things in such a way as to force their children - on pain of having to forego part of the inheritance - to choose to accept an "encumbered" legitimate portion. At any rate, Maria had one Frisian heavyweight on her side: Van den Sande concluded that the effect of the cautio Socini was ultimately "to emasculate the law and render it ineffective, the intention of that law being to ensure that legitimate portions are unfettered and unencumbered".15 The question arises as to the way in which that legal concept was regarded by other jurists and in the (Frisian) case-law. First of all , however, it is appropriate to give an account of the arguments advanced in the proceedings between the Cramer sisters.

3. Cramer versos Cramer Geertruid and Johanna were very happy with what their mother had intended them to have. They had !ittle hesitation in approving the will. Maria, on the other hand, took a long time in reaching her decision. Just as the fourteen-day deadline was about to expire, she declared that she would \3 This is a variation on the wording appearing with regard to the quarta Falcidia (the fourth part accruing to the heirs under the will, which could not be encumbered with specific legacies) in D. 35, 2, 27. This provided: "quod si voluntati meae non consenserint, exheredes sunto" ("if they do not agree with my last will, they must be disinherited"). If they were prepared to accept the will without invoking the quarta Falcidia, they inherited as heirs. 14 Asser-Meijers-Van der Ploeg, Erfrecht, eleventh impression, Zwolle, 1992, para. 129. 15 Van den Sande, Gewijsder Saecken, IV, 7, 2. Moreover, according to Leyser, nobody seriously doubted that the clause was a fraus legis. A. Leyser, Meditationes ad Pandectas, 11, Leipzig, etc., 1742, re D. 5, 2, p. 298.

10 LokinlJanseulllrandsma

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acquiesce in the will of her late mother if deduction of the legitimate and Trebellianic portion were allowed in her favour. Geertruid and Johanna were not pleased about the position thus taken by their si ster. They demanded that Maria should approve the will as envisaged by their mother: either Maria should accept the entire portion of the inheritance to which she was entitIed in accordance with the will, albeit subject to the encumbrances imposed, or she should choose to take the unencumbered legitimate portion. 16 Geertruid and Johanna were not impressed by Maria's argument that their mother's will in fact contained an illegal cIause, the cautio Socini. They disputed the contention that the cautio was directIy and indirectIy contrary to the law. According to them, the position was crystal cIear, as was apparent from three simple principles of law. First, a father or mother was only obliged to designate the children as heirs in respect of the bare but unencumbered legitimate portion. 17 Where that happened, as in this case, there ceased to be any grounds for complaining that the will was uncharitable. Second, a child designated as heir in respect of more than the legitimate portion was obliged to comply with the condition imposed in that regard if he or she wished to receive the inheritance provided for. 18 Maria's mother had given her the opportunity of receiving an inheritance wh ich was larger than just the legitimate portion, but if she wanted to have it she had to submit to the conditions which her mother had imposed. She was free to choose. If she refused to satisfy her mother' s wishes, then she would receive the legitimate portion, free, unencumbered and without any impediment. Third, it was open to a child to waive the deduction of the legitimate and Trebellianic portions. 19 One reason for not cIaiming the deduction might, for example, be that the will offered certain advantages, as was the position in Maria's case. Geertruid and Johanna acknowledged that, under the Landsordonnantie,20 a testator could not prohibit the withholding of the legitimate and Trebellianic portions by his heirs once removed, but considered that no such situation arose in this case. It was left to Maria to decide whether she wished to waive the deduction. Geertruid and Johanna rejected the idea that the situation was totally analogous with D. 35, 2, 27, which featured a case comparable to the present dispute, concerning a cIause precIuding reliance on the lex Falcidia. which 16 Geertruid and Johanna claimed at the same time compensation for the loss which they had suffered and were to suffer in the future as a result of Maria's refusal. 17 C. 3, 28, 30. 18 In accordance with Inst. 2, 14, 9, 10 and 11. 19 As to the legitimate portion, see D. 5, 2, 31, 3; as to the Trebellianic portion, see D. 36, 1,47. 20 Article I, 18, 11.

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provided that no more than three quarters of the estate could be bequeathed by way of specific legacies, so that the heirs received at least one quarter. "If, within thirty days after my death (... ), Seius and Agerius give a guarantee

that, without deduction of the benefit of the lex Falcidia, they will be content with so many pieces of gold, then they shall inherit. In such circumstances, I designate them to be my heirs and I substitute them each to the other. But if they are not in agreement with my last will, then they shall be disinherited." The question which arises is whether designated hc;:irs can accept an inheritance if they are unwilling to fulfil a condition, because each of them has a substitute under the terms of the condition thus imposed. In ans wer to this, (Scaevola) states that Seius and Agerius, as the first heirs designated, may accept their inheritance just as if that condition, drawn up contrary to the law, had never been written. 2 \

Where a testator's will included a condition precluding the children designated as heirs from relying on the benefit of the lex Falcidia, this was deemed not to have been written. 22 Geertruid and Johanna submitted that, in their case, the analogy did not hold good, since an heir could waive the legitimate and Trebellianic portions and be content to receive only the legitimate portion. Such was not possible, however, with regard to the benefit of the lex Falcidia. 23 Only in the event that an heir, such as Maria, was not given the choice of opting for the unencumbered legitimate portion did the clause in the will have to be regarded as not having been written?4 Lastly, Geertruid and Johanna relied, in support of their arguments, on the views expressed by Ulrik and Zacharias Huber, Dominicus Hamerster, Bemardus Schotanus and Johannes Voet. Maria eramer observed, as a preliminary point, that ~he States of the Province of Friesland had for centuries accepted the jus Pontificium as constituting customary law with regard to deduction of the legitimate and Trebellianic portions, and had subsequently, in 1723, enshrined that customary According to Gaius 2, 227. D. 35, 2, 27: "Seius et Agerius si intra diem trigesium mortis meae rei publicae nostrae caverint contentos se futuros tot aureis legis Falcidiae beneficio omisso, heredes mihi sunto. quos invicem substituto. quod si voluntati meae non consenserint, exheredes sunto." quaesitum est, an heredes instituti hereditatem adire possint, si condicioni parere nolunt, cum habeant substitutos eadem condicione praescripta. respondit Seium et Agerium primo loco institutos perinde adire posse, ac si ea condicio, quae fraudis causa adscripta est, adscripta non esset. See also footnote 13. 23 As a result, complex calculations had to be carried out in order to reduce the scope of the specific legacies in such a way as to enable the heirs to receive the quarta Falcidia. See J. C. Van Oven, Leerboek van Romeinsch privaatrecht, third unamended impression, Leyden, 1948, p. 547. D. 35,2 is full of such calculations. 24 Voet, Commentarius ad Pandectas, re D. 5, 2, No 64 (c1osing words), supported the view taken by Geertruid and Johanna. They re1ied on Fachineus, Controversiae juris, Book 5, Chapter 96. Huber, Van den Sande and Hamerster did not deal with the analogy. 2\

22

10"

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law in the Landsordonnantie (Articles 10 and 1l in Book I, Chapter 19). Thanks to the sophistry of certain leamed jurists, that right was invariably circumvented. The cautio Socini was, she said, "diametrically opposed to all that is lawful and equitable". lt might not constitute a direct violation of the law, but was certainly an indirect one. In other words, it was a way round the law, since the purpose of the law was thwarted. 25 For that reason, the Roman model ought to be followed. lt was apparent "ex corpore juris ( ... ) with what degree of veneration the Romans invariably applied their laws." According to Maria, the legitimate portion could not, under the jus ch'ile, be encumbered in any way, let alone directly or indirectly prohibited. 26 The same applied to the Trebellianic portion?7 The condition laid down in her mother's will operated to deprive her of the legitimate and Trebellianic portions, and constituted, to that extent, a blatant attempt to circumvent the law. The cautio Socini could not be seen as anything other than a penalty imposed on the heir whom it affected. Thus, the clause was of a "penal" nature and had necessarily to be looked upon as an indirect infringement of the law. As a result, the condition set out in the will was not permissible: anything in a will which operated to penalize any person deriving any benefit from the will in question had to be regarded as invalid. Maria took that argument from D. 34, 6, I. The answer given by (Juli anus) was that, where a son subject to parental authority or a slave is designated an heir, any improper or insulting legacy, if it is given in order to penalize even the father or master, is in itself invalid. For, according to hirn, it is not only the provisions laid down in the will with a view to penalizing the heirs that must be regarded as invalid, but everything contained in that will which is intended to penalize anyone deriving any benefit from its dispositions?8

This necessarily prompted a comparison with other protective mIes contained in Roman law. According to D. 35, 2, 15, 1 and 8, the withholding of the benefit of the lex Falcidia from any heir could be prohibited. Yet some testators had attempted to circumvent that law indirectly, by imposing a condition comparable to the cautio Socini, in the form of the designation See D. 1,3, 29 and 30; C. 1, 14, 5. C. 3, 28, 32 and 36, 1; Nov. 18, chapter 3; Nov. 1I5, chapter 3. 27 C. 6, 49, 6; this text was never expressly repealed by another law; and, in accordance with C. 7, 62, 32, 6, it therefore necessarily continued to apply. See Vinnius, Selectarum juris quaestionum libri duo, Book I, chapter 22. 28 D. 34, 6, 1: Filio familias vel servo herede instituto etiam si in patris dorninive poenam illicite ve1 probose datum est, nullius momenti legatum esse respondit: non enim id solum, quod in heredes, sed omne, quod in cuiusque lucrum aliquid ex ultima voluntate sentientis talern poenam in testamento scriptuin sit, nullius momenti h~bendum. 25

26

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of an heir subject to a prohibition of invoking the privilege of the lex Falcidia and a direction requiring the heir to state within a specified time-limit whether or not he was willing to accept that condition. According to Paulus, such a condition was "in fraudem legis Falcidiae" and must therefore be regarded as not written in the will. 29 By analogy, the cautio Socini necessarily fell to be treated in the same way. No person could be compelled to comply with such a clause, a fortiori since it must be deemed not to have been written. 30 A comparison could likewise be drawn with the Senatus consultum Macedonianum. According to that senatorial decree, the lending of cash to a filius familiae was prohibited. 31 Certain usurers thought up a scheme designed to get round the prohibition against money-lending, involving the conclusion of an agreement for the simple loan of specific items of moveable property. The son could purchase those items of property acquired by hirn, and after selling them he could use the sale proceeds. That could not be said to amount to direct money-lending, but this expedient was never in fact successful as a means of circumventing the law, since it indirectly infringed the senatorial decree. Therefore D. 14, 6, 7, 3 prohibited this circumvention: Is there perhaps a case for saying that we must construe the term "Iending" as covering not merely cash but anything that may be lent? Let us consider that question for a moment. I myself think that the wording in question refers to cash. After aB, the senate uses the words: " ... has lent money". But where a person has sought to circumvent the senatorial decree by lending, for example, grain, wine or olive oil, with the intention that, after seBing those products, the son should use the sale proceeds, assistance must be afforded to the son. 32

According to Maria, that situation bore a strong resemblance to the concept of the cautio Socini, wh ich was likewise designed indirectly to circumvent the law. Maria maintained that the argument advanced by Geertruid and Johanna, to the effect that she had voluntarily waived the option of invoking the legitimate and Trebellianic portions, did not hold water. She insisted that she had by no means waived those legal rights, having on the contrary let D. 35, 2,,27. According to Maria, comparable instances of fraus legis, rendering the clause in question ineffective, appeared in D. 28, 7, 7, D. 35, 1,64 and D. 35, 1,79,4. 31 D. 14, 6, 1 pr. 32 D. 14, 6, 7, 3: Mutui dationem non solum numeratae pecuniae, verum omnium, quae mutua dari possunt, an accipere debeamus, videndum. sed verba videntur rnihi ad numeratam pecuniam referri: ait enim senatus "mutuam pecuniam dedisset". sed si fraus sit senatus consulto adhibita, puta frumento vel vino vel oleo mutuo dato, ut his distractis fructibus uteretur pecunia, subveniendum est filio farnilias. 29

30

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Chapter VIII: The unwilling victim of the cautio Socini

it be known that she indeed wished to enjoy the benefit of them, without any impediment or encumbrance. Her mother had forced the clause upon her, thereby effectively giving her the choice as to whether to effect a waiver. The conclusion which followed from that could only be, once again, that the way in which the will had been drawn up was unlawful. 33 In Maria's view, the words of Papinian, although intended to refer to another case, were only too applicable to that disposition by her mother: a forced choice is no choice at all. 34 Lastly, she submitted that a person may not include in his will a condition that the law cannot be applied to that will?5 In those circumstances, her mother could not - according to Maria, who revered her mother - have intended such a circumvention of the law. Consequently, Maria concluded with a warning to her sisters, which she had kept up her sleeve and which was taken from the so-called Pauli Sententiae of the Roman jurist Paulus: where a will contains nothing wh ich is meant to get round the law, all persons who act against the wishes of the deceased are to be regarded as unworthy and must forfeit their right to inherit!36

4. A further look at the cautio Socini The Court of Friesland found in favour of Geertruid and Johanna. The judges ordered Maria "within fourteen days unequivocally and without any qualification or condition to declare whether she approves the will of her mother Lumina Johanna Wijnhouts, ( ... ), pro ut jacet, and elects to take the entire testamentary portion left to her, subject to the encumbrances attaching thereto, or whether she elects to take the legitimate portion without any encumbrance, in default of which choice the defendant is to be deemed to have chosen to take the legitimate portion". This will come as no surprise to anyone with any knowledge of the legal literature and Frisian caselaw of that time. Whilst it is true that the authoritative jurist Van den Sande was opposed to the cautio Socini, he was relatively alone in his view. Huber and Hamerster, forexample, dismissed the objections raised See also C. 3, 28, 30. D. 31, 67, I: Non enim facultas necessariae electionis propriae Iiberalitatis beneficium est ("For the the exercise of a necessary choice is not a benefit conferred by personal liberality"). 35 D. 30,55. 36 Paul. Sent. III, 5, 9, 13: Omnibus, qui contra voluntatem defuncti faciunt, ut indignis aufertur hereditas, si nihil testamento in fraudem legis fuerit cautum. It is significant of the Frisian approach to the Roman law that an advocate should refer in a pleading to pre-Justinianic law. We have not frequently come across references to pre-Justinianic sources in 18th-century documents. 33

34

4. A further look at the cautio Socini

151

against the use of that c\ause. They maintained that parents were not obliged to leave their children anything over and above the legitimate portion, and that - provided they did so properly - they were entitled to dispose as they pleased of the residue of their estate?7 If the parents wished to leave the residue to the children subject to certain conditions, there was nothing in law to prevent them from doing so. It was always open to the children to choose whether to take that part of the inheritance which the law required to be bequeathed to them. Artic\e I, 19, 11 of the Landsordonnantie merely provided that a testator could not directly prohibit the deduction of the legitimate and Trebellianic portions. In the case of the cautio Socini, deduction of the legitimate portion was not prohibited: the heir received the legitimate portion free and unencumbered. It was only to the receipt of the residue that any conditions attached. 38 The Court of Friesland gave its seal of approval on several occasions to the cautio Socini, affirming its validity. One of the first cases to which attention is given in Frisian legalliterature concemed the proceedings between Riemke Froukes and Fryke Aatsma?9 Riemke was Fryke's grandmother. Fryke's mother, Riemke's daughter, had already passed away. Fryke was designated as heir in the will of her grandfather, Yge (together with three children of Riemke and Yge). The estimated value of the legitimate portion was 125 gold florins. However, under the will, Fryke was entitled to receive property worth 250 florins, but subject to a universal jideicommissum and a right of usufruct in respect of the immoveable property. If she was unwilling to agree to the encumbrance, she could elect to take the unencumbered legitimate portion. Fryke's principal objection was to what she termed the "penal" nature of the cautio Socini. Consequently, relying on D. 34, 6, 1,40 she claimed that that part of the will should be held invalid. Naturally, she also sought to support her case by referring to Van den Sande.

The Court ruled that Fryke could be compelled to choose between an unencumbered legitimate portion or an encumbered inheritance in a greater amount. It held that the c\ause in issue did not operate to circumvent the law. Fryke was always entitled to elect to take the free and unencumbered legitimate portion. If she were unwilling to agree to the conditions attaching to the residue over and above the legitimate portion left to her, then she See C. 3, 28, 30. Huber, Heedendaegse Rechtsgeleertheyt, 11, 19, 86-87 and 11.22.11-12; Huber, Praelectiones juris civilis, re D. 5, 2, No 16; Hamerster, Statuten, Ordonnantien, I, 19, 11: B. Schotanus, Examen juridicum, re Book V, Title 2; H. Cannegieter, Dictata de differentiis juris Romani et Frisici, re D. 5, 2, 53 (sine u110 onere) (PBL, M.S. 1085). 39 Judgment Book 1695 (Case No 16564): judgment dated 29 January 1695. 40 See above; this was also a major argument advanced by Maria. 37

38

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Chapter VIII: The unwil\ing victirn of the cautio Socini

could voluntarily elect to take the legitimate portion and waive her entitleme nt to the residue. 41 A second case in which the Court of Friesland removed the possibility of any misunderstanding concerning the permissibility of the cautio Socini was that between Andele Meijnderts (in his capacity as the father of Meijndert Andele Meijnderts) and Hans Caspers. 42 Grietje Wybrens had by wil\ designated as heirs her son, Hans Caspers, and the son of her previously deceased daughter, Meijndert Andele Meijnderts. Meijndert was bequeathed an entire house, half of another house and a farm cornprising sorne 73.5 ares. If he were to die without leaving issue, her son, Hans Caspers, was to inherit everything jure jideicommissi. "And in the event that rny grandchild, thus designated as rny heir, should state that he is not content or satisfied with this his portion of rny estate, then I leave to hirn only the bare legitirnate portion." Andele Meijnderts brought legal proceedings c1airning that an inventory and appraisal of the entire contents and effects should be carried out, since his son was entitled to the legitirnate and Trebel\ianic portions of his entire child's portion. Caspers argued in opposition to this that Meijnderts had first of all to declare that he approved the will and that he was wil\ing to accept the encurnbrance irnposed in the form of the jideicommissum.

Meijnderts senior characterised the encumbrance of the will with the jideicommissum as a penalty c\ause necessarily rendering the wi\1 invalid. 43 According to hirn, the legitimate portion had to remain free and unencumbered. He went on to argue that the situation would have been different if the wi\1 had been worded on an "alternative" basis, with an "express stipulation prescribing aperiod of time within which the designated heir was to choose one or other of the two possibilities". As it was, the "penal" conditi on referred hirn direct1y to the legitimate portion, which was contrary to the law. 44 Caspers expressed surprise at the arguments advanced by Meijnderts. According to hirn, it had been "convincingly" shown by Ulrik and Zacharias Huber, Voet and other learned jurists that "where the children are granted the freedom to receive either the legitimate portion absque nullo onere or a larger part of the inheritance cum onere jideicommisso, that does not impose the slightest encumbrance" on the legitimate portion. He regarded as naive the attempts to argue, on the basis of the wording of the will, that the cautio Socini was contrary to the law. These were, he said, quibbles which deserved to be rejected in their entirety. 41 Huber, Observationes rerurn judicatarum, Obs. XVI (p. 71); Beucker, Rerum judicatarum, Chapter XLVII. 42 Case No 13429: judgment dated 14 July 1742. 43 He referred to Voet, Commentarius ad Pandectas, re D. 34, 6, No 3. 44 For a proper construction, he referred to Voet, Commentarius ad Pandectas, re D. 5, 2, No 64. As to the penal nature of testamentary dispositions, see the more frequently cited text contained in D. 34, 6, 1.

5. A few incidental remarks concerning private international law

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"For it amounts to one and the same thing whether, on the one hand, a testator states that he is giving the children the choice either to have the legitimate portion free from any jideicommissum or to receive a larger part of the estate cum onere jideicommisso or whether, on the other hand, he says that he is imposing on his children the encumbrance of a jideicommissum and that, in the event that they are not happy with it, he bequeaths to them only the legitimate portion and nothing else. For, in both cases, the children can choose whether they wish to receive the legitimate portion free from any jideicommissum or whether they prefer to inherit a larger part of the estate cum onere jideicommisso."

According to Caspers, there could be no doubt that the will established a system of alternatives wh ich did not TUn counter to the wording or spirit of the law. The Court of Friesland found in his favour and dismissed Meijnderts' claim. The Frisian jurists and judges were not, for that matter, alone in their view that the cautio Socini did not constitute a fraus legis. The legal literature and case-Iaw of the province of Holland were likewise based on the assumption that such a clause was valid. 45

5. A few incidental remarks concerning private international law The difference of opinion regarding the validity of the cautio Socini was not the only area of disagreement between the Cramer sisters. The will of Lumina Wijnhouts was not solely concerned with immoveable property situated in Friesland; it also related to certain lands in Overijssel. Maria rightly argued that, under the law of property applying in Overijssel, a will was deemed to have no legal force if it was not drawn up, registered and made public in Overijssel itself. 46 She initially claimed, on the basis of that established fact, that the entire will must be null and void. Later on - out of respect for her mother - she changed her position, stating that she regarded as void only that part of the will which related to the lands in Overijssel. The Frisian law dictating that, with regard to the formalities govern4S See Voet, Commentarius ad Pandectas, Book V, Tide 2, 64, and the decision of the Hoge Raad van Holland en Zeeland [Supreme Court of Holland and Zeeland] of 17 November 1746, in Pauw, Observationes Tumultariae Novae, No 191. As regards the very common use of the cautio Socini in Friesland and Holland, see the remarks concerning the draft Wierdsma legislation, in Y. M. I. Greuter-Vreeburg (ed.), Erfrecht 1798-1820, contained in: Bronnen van de Nederlandse codificatie sinds 1798, Zutphen, 1987, pp. 85-86. 46 Book 2, Tide 5, Artic1e 2. This was a "real" provision: the applicable law was that of the place where the immoveable property was located (by contrast with "personal" provisions, under which the personal characteristics of the property attach to the person concerned).

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ing the validity of a will, the jus civile had to be complied with was, "as is generally known, incapable of having any effect outside [Frisian] territory". Disputes concerning that type of property had to be determined in accordance with the law of the province in which the immoveable property was situated - being, in this case, Overijsse1. 47 Geertruid and Johanna agreed with Maria that, on the basis of the law of property applying in Overijssel, their mother's will was incapable of having any legal force in relation to the lands situated in Overijssel. In their view, the solution to that problem could be left to a later date. First of all, Maria had to declare, once and for all , that she approved the will, without any reservation or qualification. According to them, it was evident that such a declaration could not prejudice Maria's interests if the will should turn out to be ineffective with regard to the lands in Overijssel. The Court did not expressly comment on that point. However, we may infer from its judgment that it implicitly supported the view taken by Geertruid and Johanna. Despite the fact that the opposing side was not in disagreement with the position adopted by hirn, Maria's counsel decided substantially to develop that part of the defence. He thus proceeded to present a detailed argument to the effect that the law of Overijssel must be applicable to the winding-up of the inheritance under the will as regards the lands situated in Overijssel. HAnd all the more so since the sovereign or executive empowered to implement the laws of one Province is not obliged, and cannot be compelled, to follow the leges and Placita of another province, or indeed to approve them - first, because it is a well-known precept of law quod pari in parem nullum competit imperium48 (... ), and, second, inasmuch as it would be absurd, not to say extremely harsh, for a Judge in one Province to be required to approve an act done by a citizen of another Province in the territory of that other Province which, if done by someone within his own territorial jurisdiction, he would be obliged to repudiate as being contrary to the Law applying in his own Province."

According to Maria, there was a further reason for applying the law of Overijssel in the present case. This was because the Overijssel law concerning the drawing-up, registration and other formalities in respect of wills diverged from Roman law. Thus, the local rules were intended not to supplement the general law but to rectify it. Consequently, Roman law could not be applicable, and Frisian law even less so, in view of the fact that it faithfully reflected Roman law in the sphere of wills and testarnentary dispositions. 49 It followed, according to Maria, that the will of Lumina Wijnhouts was quite simply incapable of being valid as regards the lands in Overijssel. 47 By analogy with D. 2, 1, 20. Maria also referred to GailI, Practicarum observationum (... ) libri duo, Book 2, Obs. 24, 5. 48 ••• that authority in one sphere does not extend to another, similar sphere taken from D. 4, 8, 4.

6. Conclusion

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6. Conclusion It is quite dear from the proceedings between the Cramer si sters that the lawyers appearing before the Court of Friesland thought and argued in terms of Roman law. There was naturally respect for the existing local Frisian law, but questions (of interpretation) relating to that law were resolved by reference to Roman law. Where, however, the local law expressly diverged from Roman law (as did Overijssel law in this case), then Roman law faded into the background. It is noteworthy, moreover, that reÜance was placed in the proceedings on the Pauli Sententiae, a pre-Justinianic source of law containing pronouncements by the great Roman jurist Julius Paulus5o , whose utterances were relatively little invoked in the 18th century. This says something about the familiarity of Frisian jurists with Roman law.

Leaving aside exceptions, comparisons or analogies were borrowed from Roman law in order to support, and equally to contest, a given standpoint. Maria's counsel had at his disposal a virtually endless quantity of Roman law texts with which to substantiate his assertions. He roundly criticised his esteemed opposing counsel for the fact that the latter cited so few sources of law yet so many authors "as if it were the norm quod auctoritate Jurisconsultorum non vero legibus esset certandum", i.e. that litigation should be conducted on the basis of the authority of jurists but not on that of the law. Time and again we find evidence, in the lawsuits discussed in this work, of the authoritative force of Voet's Commentarius ad Pandectas, in Friesland as elsewhere; for although counsel for the sisters Geertruid and Johanna could have amply fulfilled his task by means of references to the works of Frisian jurists (for example, in support of the argument concerning the validity of the cautio Socini), he regularly cited Voet. The same way of proceeding had characterised the approach adopted by the lawyer acting for Hans Caspers. What has been the fate of the legal concepts which we have encountered in this chapter? The legitimate portion, or statutory portion of an estate, as it is often referred to, remains enshrined in Netherlands law. 51 The Trebellianic portion, by contrast, disappeared from Netherlands law at the time of 49 Maria referred to Mevius, Commentarii in ius Lubecense libri quinque, and Schrassert, Commentatio ad Refonnationem Velaviae (Harderwijk, 1719), in order to emphasize her point that Overijssel law and other local law was applicable in priority to Roman law. so As to whom, see: W. J. ZwaIve, Keizers, soldaten en juristen. Vijf Romeinse juridische biografieen, Deventer, 1998, p. 1\5 et seq. 51 Article 4:63 of the Burgelijk Wetboek (Civi! Code).

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the codification process. 52 The cautio Socini continued until quite recently to be applied in Netherlands legal practice. Apart from one exception, that clause always subsisted without being founded on any statutory basis. The exception in question arose in the context of the first codification of Netherlands civil law. Article 705 of the Code Napoleon, as laid down for the Kingdom of Holland, was in the following terms: Parents and grandparents shall be at liberty to bequeath to their children or grandchildren the whole or part of an inheritance, subject to any encumbrances, collateral engagements or conditions which may be specified, provided that they confer on the latter freedom to choose whether they wish to accept the bequest subject to the encumbrances attaching thereto or to enjoy the bare legitimate portion without any encumbrance.

Although no comparable provision was laid down in the Ci vii Code of 1838, the cautio Socini has always been accepted as valid in law. In a judgment delivered in 1914, the Hoge Raad (Supreme Court of the Netherlands) considered as follows: "The plaintiff may indeed claim that her legitimate portion be issued to her on a free and unencumbered basis, but she was also given the option of relinquishing her claim to it and of submitting to the administration of that legitimate portion, by analogy with the similar choice conferred by Article [4:] 965 of the Ci vii Code; consequently, the condition attached to the specific legacy bequeathed to her, namely that she should submit to the administration of that legitimate portion, cannot be contrary to the law, as was asserted in the appeal in cassation; it scarcely needs saring that this is unequivocally apparent from the genesis of the Civil Code (... )." 3

Doubt has now been cast on the validity of the cautio Socini, not by virtue of any legislative provision but as a result of a judgment of the Hoge Raad dating from 1985. In that year, it inferred from Article 1370(2) of the old Civil Code54 the role that a legal act (including, therefore, a will) is null and void if it operates to impede the freedom of a person to exercise his prerogatives under the law of succession. 55 That finding would appear to have sealed the fate of a hallowed legal concept which was solidly 52 See Y. M. I. Greuter-Vreeburg, Oe codificatie van het erfrecht 1798-1838, Zutphen, 1987, p. 88 et seq. 53 Judgment dated 4 Oecember 1914; W. 9780 (with note by E. M. Meijers); NJ 1915, p. 231. For a detailed account of the cautio Socini, accompanied by comparisons with German and French 1aw, see P. W. van der Ploeg, Oe privatieve clausule, WPNR (1954) 4369, pp. 471-473, and 4370, pp. 483-485. 54 It is not possib1e, however, to disc1aim an inheritance which has not yet devo1ved, or to attach any condition to such an inheritance, even with the consent of the persons whose inheritance is involved - except for the provisions of Artic1e 146 ofBook 1. ss HR, judgment of 25 October 1985, NJ 1986, 308; Asser-Meijers-Van der Ploeg, Erfrecht, e1eventh impression, 1992, paragraph 129.

6. Conclusion

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rooted in the old indigenous Iaw of succession. Having regard to the nature of the clause, it is perhaps not wholly wrong that the cautio Socini should have died a death. Effect has been given to Article 1370(2) of the Old CiviI Code, as regards the law of succession, in Article 4:4 (the new law of succession). That article leaves little roorn for rnisunderstanding: a legal act perforrned prior to the devolution of an inheritance is null and void in so far as it operates to irnpede the freedorn of a person to exercise prerogatives which vest in hirn under that Code with regard to that inheritance.

Chapter IX

The purehase of a ruin at public auction: is the doctrine of laesio enormis applicable?l "Res enim tanti valet, quanti publice vendi potest?"

1. Introduction In 285 A.D. the Emperor Diocletian issued two decrees which have had generations of jurists reaching for their pens. 2 The best known of those two edicts, known as the lex secunda, is in the following terms: If you or your father have sold a valuable piece of land for too low a price, it is

no more than human that, through the intervention of judicial authority, you should recover the piece of land sold after retuming the purchase price to the purchasers or, if the purchaser indicates a preference to that effect, that you should receive that part of a fair and equitable price that was wanting. A price will be regarded as too low if less than half of the true price is paid. 3

The imposition of the rule that the purchase price had to be a fair one (a pretium iustum) saw the commencement of the (highly problematic) development of the doctrine of extraordinary prejudice or laesio enormis. The rescripts of Diocletian represented, in asense, a break with the past. Jurists such as Pomponius and Paulus had, in fact, written that, in fixing the purchase price, the vendor and purchaser were as a matter of course (naturaliter) allowed to outwit each other. 4 Case No 11505: judgment dated 20 December 1724. There has been a fierce debate conceming the question whether the rescripts constituted a lustinianic interpolation. Even the· date of issue of the decrees is disputed. See Zimmermann, The Law of Obligations, p. 255 et seq. (as weil as other works). 3 C. 4, 44, 2: Rem maioris pretii si tu ve\ pater tuus minoris pretii distraxerit, humanum est, ut vel, pretium te restituente emtoribus, fundum venditum recipias, auctoritate iudicis intercedente, vel, si emtor elegerit, quod deest iusto pretio recipias. Minus autem pretium esse videtur, si nec dimidia pars veri pretii soluta sit. See also C. 4, 44, 8. 4 D. 4, 4, 16,4 (Pomponius) and D. 19,2,22, 3 (Paulus). 1

2

2. Laesio enormis in Roman-Frisian law

159

Since the rescripts of DiocJetian, relating as they did to a particular set of circumstances, formed part of the legislation laid down by lustinian, they could be regarded as general statutory provisions by the practitioners of the so-called 'Ieamed' Roman law. The medieval scholars, in particular, elaborated the principle of a fair price into the doctrine of laesio enormis, "a breathtaking expansion of the institute", as Zimmermann termed it, whereby any restrietions on the scope of laesio enormis were dependent on the way in which one looked at the application and interpretation of Roman law. The Netherlands jurists of the 17th and 18th centuries did not hesitate to join in the discussions of their predecessors and to adopt a view conceming the points of contention. 5 The following section takes a cJoser look at the Roman-Frisian interpretation of the concept of laesio enormis with reference to the views expressed by Van den Sande and Huber.

2. Laesio enormis in Roman-Frisian law In Roman-Frisian law, the question of nullification of a purchase agreement on the ground of prejudice equivalent to a sum exceeding one half of the value of the thing sold arose in connection with the particular "causes" which might attend the nullification of the purchase. Laesio enormis was not expressly incJuded amongst the general "causes", such as deceit or undue influence, which were also applicable to agreements other than purchase agreements. This was cJearly "on account of the reason given in the works of our Mr Van den Sande, namely that this represents a new remedy, introduced as a change to the old law; in consequence of which, it may not be extended to cover matters going beyond the ambit of the wording of the new law.,,6

The fact is that the lex secunda constituted an intrusion on the freedom of the vendor and the purchaser themsel ves to determine the price of the thing sold, as conferred by D. 4, 4, 16, 4. 7 For the course of trade could not be upset by each and every inequality in the respective positions of the contracting parties. For that reason, Huber argued that it was necessary to adhere strictly to the requirement that the prejudice suffered must exceed one half of the value of the thing sold. Any lesser prejudice could not have 5 For an overview, see eh. Becker, Das Problem der Austauschgerechtigkeit, in: Feenstra-Zimmermann, Das römisch-holländische Recht, p. 201 et seq. 6 Huber, Heedendaegse Rechtsgeleertheyt, III, 6, 1, 2 and 12; Van den Sande, Gewijsder Saecken, III, 4, 17. 7 D. 4, 4, 16, 4: Idem Pomponius ait in pretio emptionis et venditionis naturaliter licere contrahentis se circumvenire ("The same Pomponius says that it is permissible as a matter of course for the purchaser and the vendor to seek to outwit one another in the determination of the price").

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any effect on the purchase agreement. Thus, a vendor who received 48 florins for a thing wh ich was in reality worth 100 florins could rely on a plea of laesio enormis. Any more flexible approach to that limit would ex cessively impair the conduct of trade and commerce, as referred to above, and the common good. That was also the approach adopted by the Court of Friesland. 8 A dispute arose between Ernst Mockema van Harinxma toe Sioten, 'grietman' (local magistrate) of Baarderadeel in the district of Weidum, and Wybrandus van Boelens, delegate in the Auditors' Office of the Province of Friesland, concerning some 184 ares of land located at Weidum. The initial point of contention concerned the question whether Mockema van Harinxma or Van Boelens was the owner of the land in question. They were also in disagreement, however, regarding the price. Two arbitrators were appointed to determine that price. In the second set of proceedings, Van Boelens claimed that the purchase price as determined by the arbitrators did not correspond to the value of the land. He considered that he had been prejudiced. The Court delivered an interim judgment dismissing his claim, citing as the grounds for its decision the grounds referred to above (prejudicial consequences for trade and the common good).9 In order to circumvent objections of the type raised, the parties customarily waived in their agreement the possibility of pleading the lex secunda.

Huber expressly stated that the "manifest fairness" of the concept of laesio enormis was applied by many jurists to other agreements bonae fidei, such as rental agreements, out-of-court settlements lO and partnership (societas) agreements. According to hirn, however, the significant imbalance between the price and the value of the property concerned did not play such a prominent role in such contracts as it did in the case of a purchase. Thus, a rental agreement, for example, concerned the use of a thing, not any transfer of ownership. In Huber's view, therefore, the lex secunda should not be extended to cover other agreements. His conclusion gave rise to (considerable) divergences between, inter alia, Roman-Dutch law (that is to say, the law applied in the Province of Holland) and Roman-Frisian law. \I The 8 Huber, Heedendaegse Rechtsgeleertheyt, III, 4, 7; Voet, Commentarius ad Pandectas, re D. 18, 5, No 3. 9 Case No 10320: judgment dated 15 July 1717; Case No 16.588 (judgment records): (interim) judgment dated 7 May 1720. 10 See Van Bijnkershoek, Observationes Tumultuariae, No 900, concerning a judgment delivered by tbe Hoge Raad (Supreme Court) of Holland and Zeeland, in wbicb that court declined to follow Grotius (Inleidinge, III, 52, 2) and beld tbat tbe lex secunda was not applicable in the case of an out-of-court settlement. 11 Huber, Heedendaegse Recbtsgeleertbeyt, III, 6, 10. See tbe view expressed by Grotius in Inleidinge, III, 52, 2, and Voet, in Commentarius ad Pandectas, re D. 18,5, No 13. According to Voet, some jurists regarded tbe lex secunda as applicable even in the case ofagreements stricti juris (within tbe context of D. 19,5, No 14), since the difference between an agreement bonae fidei and a contract stricti juris bad disappeared in modem practice (moribus bodiemis).

2. Laesio enormis in Roman-Frisian law

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question arises whether or not the Court of Friesland ever found otherwise in relation to, for example, arental agreement. Nauta, in his compendium of judicial decisions, records one case concerning the determination of a new rent for a house following a valuation by experts, in which the Court of Friesland in principle allowed reliance to be placed on the lex secunda, provided that laesio enormis was proved. 12 Both Van den Sande and Huber - following the view expressed by Donellus (Hugues Doneau) and contesting that of Cujas - rejected the idea that the "remedy afforded by the lex secunda" should be restricted to the vendor. In their view, the purchaser was equally at liberty to plead that he had suffered prejudice equivalent to more than one half of the value of the thing sold. After all, the right to plead laesio enormis vested in the vendor not on account of his being the vendor but because he was an aggrieved and cheated party. The same rationale should apply to the purchaser. "For where similar grounds or reasons exist, the law should be similarly applied", as Van den Sande put it. Adherents of the school of Roman-Dutch law asserted the same view as that put forward by Van den Sande and Huber. Most jurists in Friesland and Holland in the 17th and 18th centuries interpreted the concept of prejudice in excess of half of the value of the thing in question as meaning that the purchaser had paid twice the fair price: 201 florins instead of 100. Voet championed the view that the purchaser was entitled to invoke the protection of the lex secunda if he had paid ISI florins instead of 100 (on the basis that the limit was taken to be one half of the fair price of the thing in question). 13 There was no difference between Roman-Frisian law and Roman-Dutch law as regards the limitation period for the institution of proceedings for laesio enormis, an issue wh ich had given rise to fierce disagreement amongst medieval jurists. Van den Sande, dismissing the approach adopted by the "Greek (Byzantine) interpreters or translators", rejected the old view that "the benefit of the lex secunda Cod. de rescind. vendit." lapsed after 12 Nauta, Decisien, quaestio XXIX. This concemed a judgment dated 15 July 1636 in proceedings between Doede Hendriks and H. Fries. 13 Van den Sande, Gewijsder Saecken, Iß, 4, 13, invoking adecision of the Court of Friesland of 19 May 1607 (Rijnck Roelofs versus Yme Pieters); Huber, Heedendaegse Rechtsgeleertheyt, Iß, 6, 5. See also Grotius, Inleidinge, III, 52, 2, and Voet, Commentarius ad Pandectas, re D. 18, 5, No 5. For reliance on the lex secunda by a purchaser in proceedings before the Hoge Raad van Holland en Zeeland, see: Pauw, Observationes Tumultuariae Novae, No 1044. The Hoge Raad relied in that case on Huber, Heedendaegse Rechtsgeleertheyt, III, 4, 6 (in which Huber argued that, in order for a plea of laesio enormis to succeed, the thing sold had to have a price which was certain (pretium certum». See Becker, Das Problem der Austauschgerechtigkeit, in: Feenstra-Zimmermann, Das römisch-holländische Recht, p.215. 11 LoI