Page 402 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CODES OF CIVIL LAW
for Gewährleistung to cases of eviction (7.2.3).
The arrangement opted for by the drafters of the ABGB largely resembled that of
the ALR but less intricate. For remedies for defects in movables it provided a six-months limitation. A remedy for encumbrances had to be brought within three years. The ABGB did not divide immovables into further categories. Moreover, the ABGB applied the same division concerning limitation periods to remedies for eviction and breached warranties. The claim for loss due to non-performance is subject to a three-year period. A complicating factor in the ABGB, however, is the differing moments on which the various periods start to run. The period of the remedy for defects starts with the delivery of the object, whereas the remedies for eviction and loss because of non-performance do not run before the buyer has become acquainted with the eviction or his loss. Finally, the ABGB did not attach meaning to whether or not the seller was aware of the defect or encumbrance. The seller's fraud only had consequences for the scope of his liability, not for the period of time within which the buyer had to institute a claim (7.4.3).
Similar to the ALR and ABGB, the BGB neither distinguished between price reduction or returning the thing when it came to the period within which remedies had to be brought. Again, the limitation period depended on whether the sold thing was movable or immovable. Remedies for defects in the item generally lay for six months in the event of movables and for one year when an immovable was the object of the sale.
The ALR, ABGB and BGB also had in common that they subjected the seller who gave warranties which did not materialise to the short limitation periods for a breach of the seller's safeguarding duties. This was at odds with ius commune, according to which wrongly guaranteeing the absence of defects equalled fraud and consequently triggered a contractual remedy which could be brought for 30-years. The BGB, however, reserved the 30 year limitation exclusively for sellers who with malicious intent (arglistiges Verschweigen) had concealed defects or encumbrances (7.7.3).
A different regime with regard to the limitation of remedies for defects or encumbrances was found in the Code civil and the BW 1838. First, these codes did not contain fixed limitation periods for remedies for defects in movables. Both made the limitation periods depend on local custom. In practice this boiled down to significantly shorter periods than those stated in the other codes. The Code civil and the BW 1838 also subjected the remedy against a knowing seller to local custom. As a result, because knowingly selling a defective thing in customary law constituted fraud, this remedy could last for 30 years. Secondly, the buyer's claim due to encumbrances on immovables was likened to a remedy for eviction (7.5.3), which therefore also lasted for 30 years, according to the corresponding provisions in the Code civil (7.3.3).
Finally, the Spanish Código civil decreed a six-month period of limitation for remedies for defects in movables. In the event of immovables, the Código maintained the ius commune- distinction in limitation between the remedy for rescission and price reduction. The first lapsed after one year, the second after two. Regarding the knowing
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