Page 451 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
the law governing defects in things received should be. As a result of this deductive reasoning natural law scholars largely ignored medieval ius commune-subtleties concerning two sets of remedies which were supposedly transmitted in the Corpus iuris civilis. Whether different kinds of defects or more than one remedy based on defects in an object existed or not did not seem to occupy the natural law scholar's mind. Neither did natural 17th - and 18th century law scholars differentiate between the limitation of remedies for rescission and price reduction. To both they applied one and the same period. Finally, natural law scholars rejected the buyer-friendly features of the aedilician remedies as going against the natural law principle that a creditor should not gain more compensation than the damages he had truly incurred because of the defect.
However, there was always a tension between the ideal law as natural law scholars managed to construct it and the extent to which such ideal law could be realised. Though natural law theory held that personal actions did not expire, natural law scholars nonetheless limited the periods within which recipients had to bring their legal claims for practical reasons. They did so in accordance with the legal tradition of the regions in which they worked, so that throughout the various regions of Europe the periods of limitation which natural law scholars accepted differed. Thus, the first signs of legal fragmentation could already be observed which would later hallmark the civil codes which would emerge from the end of 18th century onwards.
Influenced by natural law theory's deductive reasoning, these civil codes approached a defect in a sold item through the lens of a breach of contractual fairness which had to be made good, as it was explored for the limitation of remedies for defects in things exchanged for money. The codes no longer differentiated between the limitation periods of aedilician and civil remedies. Neither did the periods within which a remedy died depend on whether the remedy was for rescission or price reduction. However, a new distinction based on whether the thing sold was a movable or immovable took the place of the former: most codes granted a longer period to bring a remedy in the event of encumbered immovables than for a movable. Finally, the civil codes do not always clearly delineate the remedies for defects or encumbrances of the remedies for non-performance. The latter in many cases had a longer period of limitation. As a result, problems of concurrence surfaced in the Code civil, BW 1838 and BGB 1900.
Thus, though the ius commune-controversy about the existence of two different sets of remedies with their own characteristics had largely been solved, other difficulties surfaced. Some varied the limitation of remedies in accordance with whether or not the object traded was an immovable. Some civil codes also introduced an artificial difference between breach of non-performance and something broadly translated as breach of the promisor's 'safeguarding duties (Gewährleistung, garantie, vrijwaring, saneamiento)'. As a result, it was possible that in one jurisdiction a recipient who had been sold an encumbered thing could start proceedings over a time period as long as 30-years (Code civil), whereas under another regime he had to act within three (ABGB). In short, though
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