Page 411 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
performance, it is unclear which limitation period applies to a claim for damages due to non-conformity. Does this claim answer to the two-year period of limitation of 7:23 NBW or does it last five years in accordance with the general period for limitation which attaches to claims for damages due to non-performance?28
Similarly, one could question whether behaviour on the seller's side should not have consequences for the limitation of the buyer's right to damages, such as it always had throughout legal history. This question has indeed been posed by litigants in court. In a case in the year 2000, which eventually made it to the Hoge Raad (Dutch Supreme Court for revision of cases), the buyer sued the seller for damages on the grounds that a delict had been committed by delivering a thing not in conformity with what was agreed in the sales contract.29 For delicts, the NBW applies a five-year period of limitation counted from the day the incurred damages and the wrongdoer have become known.30 The Supreme Court, however, heeding its General-Prosecutor, decided that in such a case the two-year limitation period of non-conformity applied and not the longer period governing the remedy for delicts.31 The argument which the Supreme Court's General-Prosecutor Spier produced was that the shorter period of article 7:23 (2) BW served the interest of both buyer and seller. Seeing that the shorter period of limitation was meant to benefit also the seller, it would be unacceptable that that limitation period could be extended by the buyer by choosing another remedy than that for non-conformity, notwithstanding the fact that the other remedy was rooted in the same facts of the sale and delivery of a non-conforming thing.32 After the Supreme Court's decision lower courts followed suit.33
It can be questioned whether this reasoning holds water. After all, the limitation periods of remedies for delict34, error35, deliberate fraud36, and loss because of non- performance37 have also been introduced to serve particular interests. For example, it is on purpose made harder to prove deliberate fraud than non-performance. Deliberate fraud is behaviour which is commonly considered more reprehensible than merely not living up to one's contractual obligations. This argues for a longer period within which the party who suffered from fraudulent behaviour should be able to sue. Such a longer period ensures that the buyer has enough time to meet the heavier burden of proof. Moreover, it adds to a
28 Art. 6:74(1) NBW jo. 3:307(1) NBW. The latter view is defended by Hijma, 'Koop en ruil', p. 738, and Wessels, 'Koop', no. 41, n.p.
29 The Dutch onrechtmatige daad art. 6:162 NBW.
30 Art. 3:310(1) NBW.
31 HR 21 April 2006, ECLI:NL:HR:2006:AW2582, no. 4.3; similarly in the event of a claim for the buyer's
loss HR 15 April 2011, ECLI:NL:HR:2011:BP0630, no. 3.5.5.
32 Cf. the legal opinion to HR 21 April 2006, ECLI:NL:PHR:2006:AW2582 by Spier, no. 4.17.1; HR 12
February 2016 ECLI:NL:HR:2016:234, no. 3.3.2.
33 Hof 's-Hertogenbosch, 4 October 2011, ECLI:NL:GHSHE:2011:BT6945, no. 4.5; Hof 's-Hertogenbosch
15 April 2014, ECLI:NL:GHSHE:2014:1075, no. 4.9.1: '... artikel 7:23 lid 1 (klachtplicht) en lid 2 (verjaring) gelden voor iedere rechtsvordering van de koper die feitelijk gegrond is op het niet beantwoorden van de afgeleverde zaak aan de overeenkomst'.
34 Art. 3:310 (1) NBW (five years).
35 Art. 3:52 (1) (c) NBW (three years).
36 Art. 3:52 (1) (c) NBW (three years).
37 Art. 3:307 (1) NBW (five years).
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