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Fundamina

On-line version ISSN 2411-7870

Abstract

DE JONG, Hylkje. "Soo 's Lands Ordonnantie vergeeffs niet is gemaeckt": Rooms-Fries recht in een zaak over dierschade bij het Hof van Friesland. Fundamina (Pretoria) [online]. 2014, vol.20, n.1, pp. 196-205. ISSN 2411-7870.

On 17 September 1707, in the court of first instance in Leeuwarden, farmer Jacob Jans was ordered to compensate farmer Pieter Pieters for the damage his bull caused by grazing on Pieters' land and by serving Pieters' cows. Jans, represented by lawyer Dr Henricus Popta, appealed to the Court of Friesland. Pieters was represented by Dr Sibrandus Mellama. The main question concerned the interpretation of the Landsordonnantie: is article 3, book 2, title 3 of the Landsordonnantie imperative law? Article 3 deals with damage caused by another's animal. The lawyers not only considered the relationship between the articles of the Landsordonnantie, but also the relationship between the Landsordonnantie and Roman law (Roman-Frisian law). Popta argued that article 3 should be interpreted in the "spirit of the law" and that for the purpose of claiming compensation for the damage caused by someone else's animal, the article contains a mandatory rule. According to Popta, Pieters did not comply with this rule and Jans could not be liable for the damage. He based his interpretation of the Landsordonnantie on Roman law, in particular the Codex, and on the Practicae Observationes of Andreas Gaill. Popta averred that Mellama's contention that article 3 could be invoked above Roman law as it was not drafted in a peremptory manner, was according to the "letter of the law" and against the "spirit of the law". The Court nevertheless refused the appeal.

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