Page 344 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
many of these men were steeped in the ius commune-tradition which interacted with usus modernus, customary and natural law doctrine. Often these strands offered conflicting solutions to difficult points of law concerning the exchange of defective things for money. It will appear that the drafters of modern civil codes kept many controversies surrounding the law about defects in sold objects into their codes which were still unsolved at the time they prepared their designs. Unsurprisingly therefore, in many regions immediately upon the entering into force of civil codes the ius commune-debate about the law governing things exchanged for money resurfaced again. As of yet, the 19th and 20th century civil codes constitute a tricky legal inheritance which members of committees for law reform have to come to terms with when taking up the challenge to update the law of sales. This chapter explores the origins of the difficulties concerning the limitation of remedies for defects in things sold which scholars and law-reformers are still grappling with today.
A second subject central to this chapter concerns the remedy for lesion beyond moiety. Recent literature deplores the abolishment of a remedy which influenced contract law for ages. It may prove instructive to pursue the development of the remedy from its medieval roots up until its disappearance in 19th century civil codes.21
This chapter explores these two issues in chronological order for the following codes; the ALR (7.2), Code civil (7.3), ABGB (7.4), BW 1838 (7.5), Código civil (7.6), and the BGB 1900 (7.7).22 For each code, this chapter studies its preparatory history and provisions related to the law about defects in the thing sold and lesion beyond moiety. The exploration is limited to the early years of the codes' existence. Except for the ABGB, the investigation also covers case law evolving under the respective codes.23 At the end of the chapter a summary presents the findings in the various sections (7.8).
Compared with the preceding chapter, the present one is organised somewhat differently. As it mainly focusses on the limitation of remedies for defects, provisions which touch upon other controversial issues regarding the aedilician and civil remedies are not, or only marginally, discussed. Hence, issues such as the right method to assess the owed reduction of price, the aedilician remedies' buyer-friendly features or their extension to lease do not figure in this chapter. Secondly, not all civil codes examined in this chapter contain the remedy for lesion beyond moiety. As a consequence, it was not always possible to explore the application of that remedy through the study of the law in force in the periods under investigation. In jurisdictions in which the remedy was discarded, its vicissitudes are unearthed by means of an investigation of preparatory works in which the
21 Notably Van Loo, Vernietiging, passim.
22 This chapter's structure ensures that for each codes the same matter is discussed under a similar
paragraph number. For instance, subsection 3 always discusses the remedy for lesion beyond moiety. Hence, for the ALR this subject can be located under 7.2.4, for the Code civil under 7.3.4, for the ABGB under 7.4.4 and so forth. Codes of German regions which disappeared over time, because the regions in which they were in force became part of Prussia or the German Empire shall not be further explored in this book (the Codex Maximilianeus Bavaricus civilis (1756), the Badisches Landrecht (1810), the Sächsisches Bürgerliches Gesetzbuch (1863)).
23 Case law of the Oberster Gerichtshof has to my knowledge not yet been made available online. Time unfortunately lacked to consult this court's earliest law reports in situ.
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