Page 407 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
8.2 The new Dutch Burgerlijk wetboek (NBW)
As observed in the previous chapter, the Dutch Burgerlijk wetboek of 1838 (BW 1838) closely followed the Code civil as concerned its law governing the remedies for defects in things sold.4 It imposed a duty to the seller to safeguard from latent defects, eviction and encumbrances on immovables. This safeguarding duty was dogmatically separated from the seller's duty to perform and described in separate provisions, which arrangement engendered obscurities as to the applicable limitation periods. Remedies for defects were subject to local custom, the absence of which left their limitation to the judge. Remedies for encumbered immovables and eviction, however, were limited in accordance with the general 30-year period.5 Furthermore, the BW 1838 did not differentiate between remedies for a breach of safeguarding duties and a remedy for sustained loss, irrespective of the underlying cause of the loss.
These issues were already addressed in a 1926 by Nauta (1884-1967)6, professor of civil law in Rotterdam, who wrote a recommendation regarding redrafting the BW's sections on eviction and latent defects. Nauta's advice was inspired by the wish to solve complexities in Dutch legal practice. First, the difference between non-performance and breach of safeguarding duty was unclear. As a result, Courts rejected claims of plaintiffs who had opted for a remedy for non-performance, where in the Courts' view a breach of the seller's safeguarding duty had occurred, or the other way round. To the frustrations of the man seeking justice this happened frequently.7 Star Busmann gives the example of a horse which appeared younger than the buyer could rightly have expected. The buyer consequently sued for a breach of the seller's safeguarding duty. The Groningen county Court nonetheless dismissed a remedy for latent defects, as the plaintiff should have sued for non-performance, because age could not be considered a latent defect.8
Secondly, Nauta drew attention to the fact that the remedies for breach of the seller's safeguarding duties were subject to short limitation periods determined by the Court, while the remedy for non-performance, on the other hand, lasted 30 years.
After dismissing the arguments in favour of keeping the remedies for breach of safeguarding duties intact, Nauta concluded that the buyer would be better off with a general remedy for non-performance.9 The remedies for eviction and encumbrances could be brought in line with the remedy for non-performance.10 Also, the delivery of a defective thing where a sound object was agreed upon could be arranged accordingly. The separate provisions regarding the seller's safeguarding duties could then be abolished as superfluous.11
4 5 6 7 8 9
10 Nauta. 'Preadvies', pp. 47seq.
11 Nauta, 'Preadvies', pp. 53seq.
See 7.5.2.1.
See 7.5.3.
Kok, Rotterdamse juristen, pp. 219-227.
Nauta, 'Preadvies', p. 54; Verhoeven, 'Het gelijk', pp 33seq. Star Busmann, Verklaring, vol. 5.1, p. 76
Nauta, 'Preadvies', p. 59.
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