Page 362 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
7.3 The Code civil (1804)
Having secured France's position among the European superpowers in 1800, the first consul of France, Napoleon Bonaparte, thought the time ripe for codification of French civil law. A commission consisting of Jacques Maleville (1741-1824)130, Félix Bigot-Préameneu (1747-1823), Denis-François Tronchet (1726-1806) and the inevitable Jean Étienne-Marie Portalis (1746-1807) was appointed on 12 August 1800 to elaborate Napoleon’s wishes. Portalis provided the eventual product of the commission's labours with a preliminary discourse by means of which he staged himself as the new civil code's most influential editor.131 Moreover, Portalis wrote a preliminary treatise to the draft Code on the form and nature of sales. Similar to what was observed in the previous sections on the Allgemeine Landrecht, premeditated concepts of justice in general and sales in particular determine how detailed provisions dealing with remedying latent defects and lesion beyond moiety eventually turn up in the French civil code. The Code Civil was promulgated on 16 March 1804.
The following sections are devoted to the general structure of the Code civil (7.3.1), its rules governing the law concerning latent defects (7.3.2) and its limitation (7.3.3) and lesion beyond moiety (7.3.4). Special attention goes to the Code civil's rules on limitation of remedies which would, long after their first entering into force, continue to haunt law- makers in their efforts to bring the Code civil more in line with the demands of their times.
7.3.1 Structure of the Code civil132
The Code civil's provisions governing the sale of a defective thing are found in section 3.6.4.3, entitled De la garantie. Articles 1641-1649 deal with the seller's duty (garantie) to safeguard that the sold item is free from defects. The remedy for lesion beyond moiety is section 3.6.6.2. Article 1674 Cc provides a remedy for the seller, if he has been prejudiced for more than 7/12 of the price of a sold immovable. As will be discussed further on, the Code civil no longer grants the buyer a remedy for lesion beyond moiety.
Other provisions containing remedies which touch upon the situation in which one the contracting parties incurred damages because of a defect in the object of the contract are articles 1200, 1202 and 1203 Cc, which deal with the seller's liability for more than his share in the event of multiple sellers, and articles 1629 and 1630 Cc which are about eviction. The liability of the lessor for defects in the thing leased out is laid down in article 1721 Cc.
130 For biographical data see G.D. Guyon, 'Maleville, Jacques de', in: Dictionnaire, pp. 530-532.
131 Levasseur, 'Code Napoleon', passim; for biographical data see C. Delplanque, 'Portalis, Jean-Étienne-
Marie', in: Dictionnaire, pp. 634-636.
132 For a critical discussion of the Code civil's ramshackle sequence and dogmatically dubious content of the
articles in which the law of obligations is expounded see Marcadé, Explication, vol. 4, p. 344ff. E.g. the Code's definition of contract in article 1101 is imprecise. A contract is a subspecies of the generic term convention. In the Code, the terms are used interchangeably.
358