Page 401 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SEVEN
Nevertheless, each studied code shaped the seller's safeguarding duty differently. The ALR and ABGB applied the concept of breach of safeguarding duty in the broadest sense to all contracts in which both parties had to perform. Moreover, it covered both eviction and encumbrances on immovables. On the other hand, the Code civil, BW 1838, Código, and BGB provided a more limited scope to the seller's safeguarding duty which had consequences for the demarcation of remedies for breach of safeguarding duties and other contractual remedies such as those for non-performance and contractual damages.
Despite their differences, the mentioned codes had one thing in common. All divided the seller's safeguarding duties in two: (1) the duty to safeguard the absence of defects, and (2) the duty to ensure the buyer unhampered and peaceful possession of the thing. The latter duty contained liability for eviction and encumbrances on immovables, which was made subject to provisions which in some respects varied from those governing the duty to safeguard from defects in the object. The BGB even more radically distinguished between the seller's duty to safeguard from defects, and his liability for eviction and encumbrances on immovables. The last two were not considered a part of Gewährleistung. Hence, their corresponding remedies shared the traits of the remedy for non-performance (7.7.2).
The introduction of general safeguarding duties had its consequences for the legal approach to sales in which the things sold turned out defective or encumbered. However, this did not necessarily mean that the law governing defects in the thing sold became less complicated. Though the codes offered new solutions to aspects which had always elicited controversies, these solutions could not always be said to outshine pre-codification law in terms of clarity. This came most clearly to the fore in the civil codes' dealings with the limitation periods within which a buyer had to start proceedings for defects or encumbrances regarding the sold goods.
At first glance, it seemed as if the codes studied in this chapter had managed to solve the ius commune-difficulty of two different sets of remedies with different periods of limitation. First of all, the two sets of remedies were merged into one. The ius commune- distinction between civil and aedilician remedies for latent defects did not return in any of the studied codes. Furthermore, with the exception of the Código, the studied civil codes no longer based the limitation periods on whether the remedy involved rescission or price reduction.
However, the civil codes investigated in this chapter did not agree on how long the generalised periods should last. The ALR let that depend on whether the thing sold was a movable or immovable. The latter category the ALR divided further into estates and urban areas. Remedies for defects or encumbrances lasted for one year in the event of estates and urban areas and six months in the event of defects in movables. Furthermore, the ALR introduced shorter periods of limitation in the event the defects or encumbrances concerned non-intrinsic qualities. However, the precise nature of such qualities remained unclear in both doctrine and practic. Finally, the ALR extended the short limitation periods
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