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Fundamina

On-line version ISSN 2411-7870

Abstract

WIJFFELS, Alain. Revisie en rechtsdwaling. Fundamina (Pretoria) [online]. 2014, vol.20, n.2, pp. 1042-1050. ISSN 2411-7870.

At the Great Council of Mechlin revision (also referred to as proposition d'erreur) was an extraordinary procedural remedy which allowed a litigant to challenge a final decision of the Great Council. Revision proceedings took place before the same court (with some exceptions, for example cases from Utrecht), but judgment was given by a bench of judges of the Great Council sitting together with judges from other superior courts in the Netherlands. Revision could only be requested if the party who challenged the decision was able to argue that the judges had erred in their judgment. It was admitted (and explicitly stated in the earliest statute of 1473) that the alleged error had to relate to the facts. The sixteenth-century practice of the Great Council shows that very few revision proceedings were pursued up to the point where a new judgment was given (perhaps because most litigants were deterred by the costs). It also appears from the court's records that litigants (and their counsel) were inclined to include legal arguments in their submissions, as if an error on a point of law were also admissible. It was a controversial question, but the records show that in practice, revision submissions often addressed both factual and legal issues. Those legal issues, however, referred almost invariably to the application of iura propria, namely rules of customary and statute law. The judicial application of "written law" (ius commune, the learned Roman and canon law) was never an issue which - by itself - could justify revision proceedings.

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