Page 438 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
the period within which he can sue for repair or replacement.167 In the CESL all these remedies are subject to one and the same two-year period, which results in a considerably clearer systematic than the BGB's and one more akin to the natural law inspired ABGB.
Thirdly, also similar to what is found in the ABGB, the CESL separates the buyer's rights to damages as a result of the non-conformity from his rights to cure the non- conformity itself.168 Irrespective of the seller's response to admonishments to cure the non- conformity, the buyer retains a right to claim damages. The CESL also avoids the doubt present in the NBW and the pending Proposal for a revision of the Spanish Código as to which limitation period applies to remedies solely aimed at retrieving loss.169 As all limitation periods start to run in accordance with the adage contra non valentem non currit praescriptio, the buyer has two years from the time the facts which caused the damages have become known, irrespective of whether the seller in the meantime manages to cure. Already in 1811, the ABGB had come with a similar arrangement.170
Nevertheless, all the foregoing should go accompanied by one caveat. The CESL only covers sales of movables and provides an exclusive regime for those who agree to use it. Hence, its drafters did not need to define the boundaries between remedies for non- conformity and those existing e.g. for error, damages, delict, and non-performance not being delivery of a non-conforming thing, which issue caused the drafters of all- encompassing national codes the greatest difficulty.
167 See 8.3.1.
168 Art. 109 (7) CESL: Notwithstanding cure, the buyer retains the right to claim damages for delay as well
as for any harm caused or not prevented by the cure; Schmidt-Kessel&Silkens, 'Breach of contract', in:
European Perspectives, p. 115.
169 See 8.2.1 (NBW) and 8.5.1 (Código).
170 See 7.4.2.1.
436