Page 374 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
attached a broader scope to the remedy than that given by their colleagues of the ALR. In the ABGB the remedy for lesion beyond moiety can be brought in all onerous contracts. By the same token, the reader of the ABGB finds the limitation applicable to the remedy in the chapter on limitation and prescription in general.187 The remedy no longer has its own particular rules on limitation.
The provisions which determine the scope of the promisor's liability are also grouped together in a separate chapter, which fact underscores their general field of application.188 Compensation is determined by §§ 1323 and 1324 which lay down liability rules for both contractual and non-contractual liability. This division is particularly noteworthy when it comes to determining which limitation period applies to the remedies the duped receiver of a defective thing can institute. Paragraph 1489 provides a particular limitation for the remedy for damages, which period differs from the periods laid down in § 933 for contractual remedies for breach of Gewährleistung.189
In addition to these general provisions, separate chapters of the ABGB contain rules which apply to particular contracts only. For sales, the duties of parties to a sales contract are described in §§ 1053-1089. For the object of this book, however, the content of these paragraphs is only of marginal interest. As the ABGB is the code which has carried through the natural law tendency of deductive reasoning to its fullest extent190, the jurist interested in the law governing liability for defects in the thing sold has to look up the pertinent rules in the chapters about contracts, limitation and liability in general. He will have to work with general precepts which are not tailored to particular contractual relations.
7.4.2 The Allgemeine Bürgerliche Gesetzbuch on latent defects
Since its coming into force in 1811, the AGBG's sections on contractual liability for defects underwent two major revisions. The first took place in 1916, the second in 2001.191 What remained unchanged, however, is that similar to the ALR, the ABGB formulates a duty for parties who promised to deliver a thing for money to deliver it free from defects. This duty goes under the name Gewährleistung.
7.4.2.1 Gewährleistung in the Allgemeine Bürgerliche Gesetzbuch
Gewährleistung in the ABGB not only comprises the promisor's duty to safeguard from latent defects but also the duty to safeguard from eviction, and to the duty to live up to warranties of quality and unusual encumbrances. Furthermore, the promisor is liable for selling a perished object as existing or another's as his. Also a given warranty about the thing's fitness for a special purpose or the absence of usual encumbrances triggers a liability, if things turn out otherwise. In § 923 ABGB all these instances of liability for fraud,
187 § 1487.
188 The 30th chapter entitled Von dem Rechte des Schadenersatzes und der Genugthuung.
189 This paragraph was revised in 1916. See Kaiserliche Verordnung vom 19. März 1916, in:
Reichsgesetzblatt, vol. 38, no. 69, p. 160
190 Gschnitzer, in: Klang, Kommentar, vol. 6, to § 923 ABGB, p. 499.
191 In this chapter's sections which discuss the ABGB revised paragraphs are indicated by the year of their
revision. Where the year is absent, the provision refer to the 1811 version.
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