Page 398 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CODES OF CIVIL LAW
territories. As these all differently recognise rescission because of a disproportionate price, legal uncertainty would inevitably have been the result. E.g., in Prussia only the buyer had the remedy for lesion beyond moiety, whereas in regions where ius commune was applied, the seller could also bring the remedy. In Rhineland-Pfalz, where the Code civil was in use, only the remedy for sales of immovables lay.329 In short, had the HGB not provided for clear rules, trade among the German states would have been seriously impaired because of uncertainty whether a contract could be attacked for reasons of a disproportionate price. Another argument for limiting the remedy's use was that it gave rise to fruitless litigation.330
However, when reading the HGB's parliamentary discussion one wonders why the only option to regulate a disproportionality between thing traded and price seems to have been a complete rejection of the possibility to attack such a disproportionality. An explanation for entirely dismissing of the remedy for lesion beyond moiety instead of bringing the divergent rules in the various codes back to one in the HGB, must be sought in the views of pandectist scholarship mentioned above.
The remedy for lesion beyond moiety is also left out of the BGB. 'In today's societal views this \[remedy because of lesion beyond moiety\], which is without ground, detrimental to legal certainty and security of title, controversial or - where it is still acknowledged by law - divergently shaped, lacks both foundations in the general principles of the project, and need'.331 The general principles which are referred to here concern the BGB's contemporary perception of error. Only in the event a party erred with regard to an essential quality of the object of the contract, could the contract be avoided (beachtliches Irrthum). The thing's price is not such an essential quality. Hence a party who erred as regards the thing's price has no ground to sue for entire or partly rescission of the contracts, because it is an instance of irrelevant error (unbeachtliches Irrtum).332 Of course, this is arbitrary reasoning. One only needs to consider the price as an essential quality of the object sold, to make it perfectly conceivable to grant a remedy to the erring party, as was observed in the sections discussing the ALR and ABGB. Adversaries of the remedy for lesion beyond moiety should have explained why a thing's price is not an essential quality, but they failed to do so. Arguments against the remedy appear to be more fuelled by the day's economic and societal predilections, than by an impartial weighing of pros and cons.
Be that as it may, the BGB is not altogether destitute of provisions which take a deviation from the performance's objective value as measure to determine a contract's
329 Koch, Handelsgesetzbuch, p. 299, note 42.
330 Koch, Handelsgesetzbuch, p. 299, note 42: 'Die Bestimmungen über laesio enormis,... seien nicht
praktisch und hättten auch nach dem Zeugnisse fast aller Praktiker höchst selten einen Erfolg gehabt,
wohl aber schon oft zu Chikanen Anlaß gegeben'.
331 Mugdan, Materialien, vol. 2, § 460, p. 178: 'Es fehlt für dieses in den heutigen Verkehrsanschauungen
nicht mehr begründete, für die Rechts- und Verkehrssicherheit gefährliche, kontroverse, bz. wo es gesetzlich noch anerkannt ist, verschiedenartig gestaltete Rechtsmittel, wie an der Grundlage in den allgemeinen Grundsätzen des Entw. (§§ 98, 102), so am Bedürfnisse'; Schulze, Laesio enormis, pp. 110- 111,
332 Mudgan, Materialien, vol. 1, § 98, p. 461.
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