Page 419 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn
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CONTEMPORARY CIVIL LAW
into various legal claims is desirable. Similar issues came to light in the discussion of the Dutch NBW which also recognizes a three year period of limitation in the event a buyer seeks to avoid a contract due to deliberate fraud. Dutch plaintiffs consequently argued that the short limitation period which the NBW decrees for remedies for non-conformity was not applicable to remedies based on other legal concepts than non-conformity, such as error, fraud, delict, and claims for damages due to non-performance.75 The Dutch Supreme Court, however, pragmatically found that the Dutch lawgiver had expressly stated a wish to have all remedies based on the facts which boil down to non-conformity lasting equally long as the remedy for non-conformity itself.76 It seems that the German BGH takes the complexity of a dogmatically sounder approach for granted.
However, in comparison to the Austrian ABGB it seems that the reformed German BGB might have gained much clarity, had the remedies for repair or replacement (Nacherfüllung) and for damages (Schadenersatz) been arranged separately. A general remedy for damages caused by whatever reason, but based on the fault of the party who inflicted the loss, would have rendered the difficult to read §§ 437-438 BGB 2002 significantly less complex.
 75 art. 3:52 (1)(c) NBW.
76 See 8.2.1.
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