Page 343 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SEVEN
1794 (ALR), the Österreichische Allgemeine Bürgerliche Gesetzbuch of 1811 (ABGB) and the Bürgerliche Gesetzbuch of 1900 (BGB).15
Another line of development is rooted in the customary and natural law inspired writings of Domat and Pothier. Through France's Code civil of 1804 (Cc), which drew substantively from Pothier's work, this mix of customary law and natural law theory also acquired a place in the Dutch Code of 1838 (BW 1838)16 and Spain's Código civil of 1889 (Código).17 Natural law thinking also influenced the deductive structure of the Germanic civil codes mentioned above.18
Furthermore, Roman-Dutch law, Roman-Frisian law and German 19th century Pandectism contributed to the Dutch Burgerlijk wetboek of 1838 (BW 1838) and the BGB. Finally, all codes were highly indebted to the early modern scholastic natural law view on contract which had shaped both usus modernus-doctrine and Pothier's thinking, as will become clear from the study of the natural law elements which the ALR, ABGB and the Cc possess. Drafters of the codes were not able to get round the need to justify their choices in sales law in the light of the theory of commutative justice. Both advocates and adversaries referred to the theory of fairness in exchange and explained why they adopted
or dismissed its precepts in their versions of the codes on which they were working.
The aim of this chapter is to demonstrate which remnants of the centuries old debate concerning how to shape the law about defects in sold goods eventually made their way into the modern civil codes. As the material about the remedies for defects in sold things and lesion beyond moiety in the 19th century civil codes is overwhelming, a selection of the subject matter is made based on recent legal developments.19
First, the major challenge in present day law concerning the law about the sales of defective goods appears to be to achieve a workable arrangement with regard to the limitation of remedies available to the buyer. Various Western-European civil codes suffer from over-complex rules concerning the time period within which buyers can institute remedies for defects in things, encumbrances on things, eviction, non-performance and damages which resulted from the defect. Moreover, it is often unclear how these remedies relate to each other.20
Part of these difficulties is caused by the choices made by the late 18th - and early 19th century drafters of the civil codes which are still in force today. As explained above,
15 For an overview of the codifications projects in the German states which existed independently before the founding of the German Empire in 1871 see Stobbe, Geschichte, I. 2, §90seq., pp. 443ff. A discussion of these goes beyond the scope of this study.
16 Sirks, 'Code Napoléon', p. 325 (BW 1838). Much went before the coming into being of the BW 1838, such as the draft for a civil code by Joannes van der Linden of 1807, the Wetboek Napoleon, ingerigt voor het Koningrijk Holland of 1809 and the drafts by Joan Melchior Kemper of 1816 and 1820. A discussion of these codes and drafts, however, goes beyond the scope of this book; see Hallebeek, Lijf ende Goedt, pp. 184ff.; Lokin&Zwalve, Codificatiesgeschiedenis, pp. 297ff.
17 For a commentary on Spain's Código civil in which the Código's articles are compared with those of other European codes see Manresa y Navaro, Commentarios, vol. 8-10.
18 Wieacker, Privatrechtsgeschichte, pp. 332, 337, 475.
19 This book has taken account of developments in legislation up until 2010.
20 See chapter 8.
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