Page 400 - 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
7.8 Summary and concluding remarks
This chapter explored to what extent remnants of the centuries old debate concerning how to shape the law about defects in the thing sold eventually made their way into the civil codes of the 19th and 20th centuries. Subject of study in chronological order were the Allgemeines Landrecht für die preussischen Staaten of 1794 (ALR), France's Code civil of 1804, the Österreichisches allgemeine bürgerliche Gesetzbuch of 1811 (ABGB), the Dutch Burgerlijk wetboek of 1838 (BW 1838), the Código civil of 1889 (Código) and the German Bürgerliches Gesetzbuch of 1900 (BGB). For all codes, except the ABGB, case law was also examined where necessary to check how dogmatic imprecision in the codes' provisions was clarified in legal practice. In order to be able to better appreciate the possible breaks with previously accepted law the chapter frequently commuted between pre-codification legal scholarship and the provisions as encountered in the studied codes.
More in particular, the chapter focused on the rules in the various codes regarding the limitation of remedies for defects in things sold. The reason for singling out this topic was that the time period within which a buyer of a defective object has to bring a remedy presents difficulties which committees for law reform are still grappling with today. Today's civil codes are not at all clear how the limitation of remedies for latent defects relate to those for non-performance, fraud and contractual damages. By studying the origins of the rules on limitation this chapter forms the prelude to the last of this book in which difficulties which present day reformers of civil law have to deal with are discussed more in detail.
In addition, this chapter explored the positions of the codes concerning the remedy for lesion beyond moiety, be it either through studying the codes' provisions in point, or, when the remedy was abolished, by means of an investigating of preparatory works in which the reasons for its abolishment were brought forward. Recent scholarship has put this age-old remedy again back in the limelight. Hence, the tracing of its vicissitudes might provide useful input for any ensuing debate about the use of a remedy based on a presupposed equity in today's law.
Before continuing with a discussion of the results of the investigation into the topics mentioned above some general remarks should be made about a particular feature all codes appeared to share and which constitutes a breach with earlier law concerning latent defect. The feature alluded to is the following. All studied codes approached a defect in a sold thing through the lens of a breach of contractual fairness, which had to be made good, notwithstanding the fact that some codes abolished the remedy for lesion beyond moiety. Influenced by natural law theory's deductive reasoning, the drafters of the codes discussed in this chapter had translated the requirement of contractual fairness into a general duty of the seller to safeguard the absence of defects in the thing sold. It accordingly appeared in the ALR, ABGB and BGB as Gewähr(s)leistung. In the Code civil, BW 1838, and Código the seller's safeguarding duty was respectively worked out in the concepts of garantie, vrijwaring, and saneamiento (7.2.2.2, 7.4.2.1 and 7.7.2.1).
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