RS 8

Alexander Korthals Altes 66 on insurance he did follow Walraven and for maritime law besides Walraven’s sources, also a textbook written by himself, a textbook in which both French and German influence was expressly indicated: the work of Pothier resp. Martens’ Grundriss des Seerechts. But another development started within two years. Far more an adeptation of the French Commercial Code, the Draft Commercial Code of 1809 introduced the suppremacy of French legal concepts in our country. Our draft-Code followed the structure of the French Commercial Code, and in parts also its contents, i.a. for carriage of goods. Van der Linden’s treating of the so-called ‘commercial law’ as part of our civil law, proved to be only a brief incident. Not only in the 1809-draft but, even after the French retired from our country and a new draft was made in the newborn Kingdom of the Netherlands, commercial law remained a separate entity, in a Code of its own: a situation only going to fade away in the very last years. We enter a new era with the definite steps to arrive at an all-over Dutch codification, steps which started with a new Draft in 1815, followed by a new version in 1822 and ultimately, after the Belgian secession interrupted the proceedings, achieved with the coming into force of both the Civil and the Commercial Code in 1838. We must briefly explain here on what base the new concept of carrier’s liability was vested, by going back into Roman law, this because the French concept and, with its influence in our codification, Dutch lawas well, was strongly inspired by Roman legal concepts. The Roman lawyers considered that the three forms of hire (locatio/conductio), to wit hire of an object, hire of services and contracting for a particular work, in particular of constructing a building were related with the contract of carriage. Among contracts for a work the Romans also included bailment. For all these forms of locatio/conductio the conductor had a rather strict liability. But the Romans thought this would do injustice to the bailee. Hence bailment was separated from locatio/conductio, and the bailee was only liable for dolus (intent), in Justinianus’ time extended to culpa lata (gross negligence). But some bailees in fact gave a guarantee to bailors that their objects would be, and remain to be, safe and sound (rem salvum fore, recipere). Therefore the pretorian law gave an action named ‘de recepto’ against the three types of bailees, the nauta (master), caupo (innkeeper) and stabularius (stable-keeper), if these bailees did not return the object of their custody to the bailor in the same state as they had received it in their custody. First this action was based upon the . actual guarantee, but within short the action was given to the bailor as if this guarantee was given by the bailee, who had a strict obligation for his custody. When the French started to codify, and ‘received’ the Roman law, they nevertheless separated locatio/conductio (as ‘louage’) from the contract of bailment (depot). But in which of the two categories carriage of goods should be placed? This contract had particulars of both categories, but the French ultimately chose for louage (hire); subject however for custody and

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