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Provincial Court of Appeal on the transfer of the right to copy in Max Havelaar, Amsterdam (1862)
Source: Noord-Hollands Archief, Haarlem, archief Provinciaal Gerechtshof, toegangsnummer 27, inventarisnummer 511
Citation:
Provincial Court of Appeal on the transfer of the right to copy in Max Havelaar, Amsterdam (1862), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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4 translated pages
Chapter 1 Page 1
Provincial Court of Appeal in North Holland
Chamber of Civil Cases
Public Hearing of Thursday twentysecond May 1862, at which are present the Lords Mr. G. Schimmelpenninck Jzn, Vice President, Mr. W.J.C. van Hasselt, Mr. J.J. Splitgerber, Mr. C.D. Asser and Mr. J.F.T. van Valkenburg, Justices, Mr. P.S. Noyon Advocate-General, and Mr. W. Goedkoop, Judge's Clerk.
In the morning, at 10 3/4 hours, the Hearing is opened by the President.
The bailiff at the session reads the following cases on the roll.
No. 950
Douwes Dekker, Procurator litis: Dammers
versus
Mr. J. van Lennep, Procurator litis: Luber
In this case, the following judgment is pronounced.
No. 950
Eduard Douwes Dekker, honourably discharged Assistant Minister Resident of Lebak, now having his residence in Amsterdam, having chosen at this domicile the offices of his procurator litis, to be mentioned, at the Kloveniersburgwal in Amsterdam, appellant by registered writ of summons in appeal by the procurator bailiff JH Stroethoff of the date 28th of November 1861, appearing with the procurator litis F.E. Dammers.
Versus
J. van Lennep, Esquire, Lawyer in Amsterdam, residing there at the Keizersgracht, respondent in the aforesaid writ, appearing with procurator litis M.W. Luber Jr.
The Court
Having heard the statement of the appellant Eduard Douwes Dekker, residing in Amsterdam, from the mouth of procurator litis F.E. Dammers.
Having heard the statement of the respondent Mr. J. van Lennep, residing in Amsterdam, from the mouth of procurator litis M.W. Luber Jr.
Having seen the Documents
with regard to the facts and the proceedings carried on, taking over that which appears in the judgment given by the District Court on 29 May 1861 between the parties, whereby on the grounds mentioned therein by the plaintiff, now appellant, the claim instituted against the defendant, now respondent, has been dismissed, which was to the effect of ordering the defendant to give and hand over accounts of the
Chapter 1 Page 2
delivering, commissioned to him, of the publication of the work Max Havelaar of de koffijveilingen der Nederlandsche Handel Maatschappij (Max Havelaar or the Coffee Auctions of the Dutch Trading Company), written by the plaintiff, with the offer to compensate the defendant and to comply with the obligations entered into in accordance with the law, and that which is further mentioned in detail in the writ, and considering furthermore that the appellant of that judgment appealed and has found fault with that the judgment assumes that a transfer of property without any stipulations cannot be an act between mandator and mandatory, and that the alleged mandate is entirely at odds with the recognition of the property rights of the defendant, in other words, that the mandate cannot be the cause of transfer of property; that this statement is legally incorrect, about which the appellant has entered into an extensive argument, of which the application in casu is that the defendant has asked for, and also obtained, Carte Blanche to publish the contested work for the benefit of the plaintiff; that he has fulfilled the task and has to give accounts thereof; that he has to proof the purchase and sale on which he relies; that he does not do this; that in any case an agreed purchase price is not demonstrated, without which a purchase is not conceivable; that the recognition of the enjoyed value is nothing but a guarantee of the right of third parties on the title to be given by the mandatory; that in casu no purchase or sale is conceivable, whereby the defendant would have obtained the exclusive right to the work in question, which already is demonstrated by the circumstance that he was not allowed to destroy the manuscript, he was not free to not publish it, while also the moral and legal responsibility rested with the plaintiff, whose interests he represented, -- the appellant pleads the reversing of the judgment a quo on all grounds, and the allocation of the aforesaid pleadings given in the first instance, with order for the respondent to pay the costs of both instances.
That the respondent, after having contested the grievances put forward by the appellant against the judgment a quo, has noted that the appellant has argued two points which have not been dealt with in the judgment; that the first is that of the purchase alleged by the respondent; that the judge a quo has passed on this point in silence, because the burden of proof, that the respondent had been his mandatory, rested with the appellant, and that, if this had not been delivered, it is not necessary to investigate whether there exists purchase or sale, that the respondent has never
Chapter 1 Page 3
acknowledged that he did not have full rights to the manuscript, notwithstanding that he alleges to have become owner without reservations thereof; that the second point, which also has not been investigated by the judge a quo under his regime, that the ground of inadmissibility is that proposed by the respondent, casu quo the mandate was deemed to be proven; that this here respondent now repeats that argument; that in the deed of 25 January 1860, the appellant declares to be satisfactorily and completely paid; that thus he cannot ask any more for accounts, -- that he argues against that that the recognition is nothing but a guarantee of the right of third parties on the title to be given by the mandatory; but that that interpretation is contrary to the phrasing of the deed, and therefore nor in that document, nor outside of it, even the slightest ground exists, so pleads the respondent for the upholding of the judgment a quo cum expensis.
Considering with regard to the law;
That anyone who alleges to have right, or relies on any fact in confirmation of his right, has to proof the existence of that right or that fact;
That the appellant, relying on the mandatory, as ground for his claim, should have proven the existence of that agreement; -- that this proof has not been delivered; that nor the correspondence between the parties admitted in the proceedings, nor the letter of the respondent to a third party, on which the appellant has relied, has proved that the alleged agreement of mandatory has come to be.
Considering that on the other hand, as the court has justly noted, the act of 25 January 1860 cited in the judgment, whereby the appellant, without any reservations or conditions, declares to have relinquished the copyright to the already mentioned work to the respondent, and to be satisfactorily paid, and the letter of 7 April 1860, wherein the appellant writes to the respondent "the book belongs to You, may I translate it," excludes the thought of the existence of an agreement of mandatory; that therefore the court, judging correctly that the ground of the action has not been proven, justly has rejected the claim on that ground.
Also joining with the judgment given on 29 May 1861 by the court of Amsterdam between the parties.
Having seen art. 1902 of the Civil Code and art. 56 of the Code of Civil Procedure,
Upholds mentioned judgment, Orders that it will take full effect and orders the appellant to pay the costs of the appeal.
Chapter 1 Page 4
Thus adjudicated by the Lords and Masters of Law G. Schimmelpenninck Jzn, Vice President, W.J.C. van Hasselt, J.J. Splitgerber, C.D. Asser and J.F.T. van Valkenburg, Justices, at which was present P.S. Noyon Advocate-General.
Witnesses W. Goedkoop judge's clerk, G. Schimmelpenninck Jzn.
[...]
Translation by: Miluska Kooij
Source: Noord-Hollands Archief, Haarlem, archief Provinciaal Gerechtshof, toegangsnummer 27, inventarisnummer 511
Citation:
Provincial Court of Appeal on the transfer of the right to copy in Max Havelaar, Amsterdam (1862), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
4 translated pages
Chapter 1 Page 1
Provincial Court of Appeal in North Holland
Chamber of Civil Cases
Public Hearing of Thursday twentysecond May 1862, at which are present the Lords Mr. G. Schimmelpenninck Jzn, Vice President, Mr. W.J.C. van Hasselt, Mr. J.J. Splitgerber, Mr. C.D. Asser and Mr. J.F.T. van Valkenburg, Justices, Mr. P.S. Noyon Advocate-General, and Mr. W. Goedkoop, Judge's Clerk.
In the morning, at 10 3/4 hours, the Hearing is opened by the President.
The bailiff at the session reads the following cases on the roll.
No. 950
Douwes Dekker, Procurator litis: Dammers
versus
Mr. J. van Lennep, Procurator litis: Luber
In this case, the following judgment is pronounced.
No. 950
Eduard Douwes Dekker, honourably discharged Assistant Minister Resident of Lebak, now having his residence in Amsterdam, having chosen at this domicile the offices of his procurator litis, to be mentioned, at the Kloveniersburgwal in Amsterdam, appellant by registered writ of summons in appeal by the procurator bailiff JH Stroethoff of the date 28th of November 1861, appearing with the procurator litis F.E. Dammers.
Versus
J. van Lennep, Esquire, Lawyer in Amsterdam, residing there at the Keizersgracht, respondent in the aforesaid writ, appearing with procurator litis M.W. Luber Jr.
The Court
Having heard the statement of the appellant Eduard Douwes Dekker, residing in Amsterdam, from the mouth of procurator litis F.E. Dammers.
Having heard the statement of the respondent Mr. J. van Lennep, residing in Amsterdam, from the mouth of procurator litis M.W. Luber Jr.
Having seen the Documents
with regard to the facts and the proceedings carried on, taking over that which appears in the judgment given by the District Court on 29 May 1861 between the parties, whereby on the grounds mentioned therein by the plaintiff, now appellant, the claim instituted against the defendant, now respondent, has been dismissed, which was to the effect of ordering the defendant to give and hand over accounts of the
Chapter 1 Page 2
delivering, commissioned to him, of the publication of the work Max Havelaar of de koffijveilingen der Nederlandsche Handel Maatschappij (Max Havelaar or the Coffee Auctions of the Dutch Trading Company), written by the plaintiff, with the offer to compensate the defendant and to comply with the obligations entered into in accordance with the law, and that which is further mentioned in detail in the writ, and considering furthermore that the appellant of that judgment appealed and has found fault with that the judgment assumes that a transfer of property without any stipulations cannot be an act between mandator and mandatory, and that the alleged mandate is entirely at odds with the recognition of the property rights of the defendant, in other words, that the mandate cannot be the cause of transfer of property; that this statement is legally incorrect, about which the appellant has entered into an extensive argument, of which the application in casu is that the defendant has asked for, and also obtained, Carte Blanche to publish the contested work for the benefit of the plaintiff; that he has fulfilled the task and has to give accounts thereof; that he has to proof the purchase and sale on which he relies; that he does not do this; that in any case an agreed purchase price is not demonstrated, without which a purchase is not conceivable; that the recognition of the enjoyed value is nothing but a guarantee of the right of third parties on the title to be given by the mandatory; that in casu no purchase or sale is conceivable, whereby the defendant would have obtained the exclusive right to the work in question, which already is demonstrated by the circumstance that he was not allowed to destroy the manuscript, he was not free to not publish it, while also the moral and legal responsibility rested with the plaintiff, whose interests he represented, -- the appellant pleads the reversing of the judgment a quo on all grounds, and the allocation of the aforesaid pleadings given in the first instance, with order for the respondent to pay the costs of both instances.
That the respondent, after having contested the grievances put forward by the appellant against the judgment a quo, has noted that the appellant has argued two points which have not been dealt with in the judgment; that the first is that of the purchase alleged by the respondent; that the judge a quo has passed on this point in silence, because the burden of proof, that the respondent had been his mandatory, rested with the appellant, and that, if this had not been delivered, it is not necessary to investigate whether there exists purchase or sale, that the respondent has never
Chapter 1 Page 3
acknowledged that he did not have full rights to the manuscript, notwithstanding that he alleges to have become owner without reservations thereof; that the second point, which also has not been investigated by the judge a quo under his regime, that the ground of inadmissibility is that proposed by the respondent, casu quo the mandate was deemed to be proven; that this here respondent now repeats that argument; that in the deed of 25 January 1860, the appellant declares to be satisfactorily and completely paid; that thus he cannot ask any more for accounts, -- that he argues against that that the recognition is nothing but a guarantee of the right of third parties on the title to be given by the mandatory; but that that interpretation is contrary to the phrasing of the deed, and therefore nor in that document, nor outside of it, even the slightest ground exists, so pleads the respondent for the upholding of the judgment a quo cum expensis.
Considering with regard to the law;
That anyone who alleges to have right, or relies on any fact in confirmation of his right, has to proof the existence of that right or that fact;
That the appellant, relying on the mandatory, as ground for his claim, should have proven the existence of that agreement; -- that this proof has not been delivered; that nor the correspondence between the parties admitted in the proceedings, nor the letter of the respondent to a third party, on which the appellant has relied, has proved that the alleged agreement of mandatory has come to be.
Considering that on the other hand, as the court has justly noted, the act of 25 January 1860 cited in the judgment, whereby the appellant, without any reservations or conditions, declares to have relinquished the copyright to the already mentioned work to the respondent, and to be satisfactorily paid, and the letter of 7 April 1860, wherein the appellant writes to the respondent "the book belongs to You, may I translate it," excludes the thought of the existence of an agreement of mandatory; that therefore the court, judging correctly that the ground of the action has not been proven, justly has rejected the claim on that ground.
Also joining with the judgment given on 29 May 1861 by the court of Amsterdam between the parties.
Having seen art. 1902 of the Civil Code and art. 56 of the Code of Civil Procedure,
Upholds mentioned judgment, Orders that it will take full effect and orders the appellant to pay the costs of the appeal.
Chapter 1 Page 4
Thus adjudicated by the Lords and Masters of Law G. Schimmelpenninck Jzn, Vice President, W.J.C. van Hasselt, J.J. Splitgerber, C.D. Asser and J.F.T. van Valkenburg, Justices, at which was present P.S. Noyon Advocate-General.
Witnesses W. Goedkoop judge's clerk, G. Schimmelpenninck Jzn.
[...]
Translation by: Miluska Kooij