Page 403 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER SEVEN
seller, the Código functioned as the BGB. A remedy against a seller who had knowingly sold a defective thing did not last for 30 years, but six months only. The drafters of the Spanish Código civil had furthermore learned from the ambiguity of its French model concerning the limitation of remedies for encumbrances on immovables and eviction. To avoid the difficulties the Code civil had trailed with it by bringing claims for encumbrances and eviction under the contractual action which lasted for 30 years, the Código decreed particular rules. The buyer of an encumbered immovable had one year to bring the remedy for rescission and a two-year period to claim price reduction (7.6.3).
In short, the factual question when, due to lapse of time, a buyer was no longer able to bring a claim because he had been sold a defective or encumbered thing had engendered a wide variety of answers in the main European civil codes since 1794.
The other issue central to this chapter was the remedy for lesion beyond moiety. In legal doctrine just prior to the entering into force of the national codes, this remedy had secured a position as a means to rescind reciprocal contracts in which the performances were not in balance. Since medieval ius commune-scholarship, the remedy had been further developed, notably by Castilian scholastics. Natural law scholars such as Grotius, Pufendorf and Wolff had lifted the remedy out of the scholastic context imbibed with catholic moral theology and stripped it of its theological clothing. Despite severe criticism by Thomasius, a secularised version of the remedy was accepted in its fullest form in usus modernus-doctrine.
Considering these developments it is not surprising that the codes with the strongest natural law flavour, the ALR and ABGB, had cleared ample space to rescind a sales because of enormous prejudice. Of the two, the ABGB proved the least susceptible to the criticism the institute had endured by Thomasius. It granted the remedy to both buyer and seller, in almost all transactions in which both parties had to perform and for both movables and immovables (7.4.4). The ALR demonstrated somewhat more reluctance toward accepting the remedy and withheld it from the seller and excluded if from lease (7.2.4; 7.2.4.4).
Something the ALR and ABGB had in common was that they no longer grounded the remedy in fraud because of an enormous difference between the thing's just price and what was actually paid for it. In the ALR, fraud in the situation itself (dolus in re ipsa) had made way for error. Yet, the ALR's structure ensured that this code's dogmatically different approach to lesion beyond moiety had more or less the same practical consequences as the ius commune-doctrine of dolus in re ipsa (7.2.4.1). To avoid conflicts with the remedies for latent defects, both ALR and AGBG had brought the limitation of the remedy for lesion beyond moiety partly in line with that of the remedies lying for Gewährleistung (7.2.4.2; 7.4.4.2).
On the other hand, the drafters of the BW 1838, Código and BGB had been convinced by the arguments which Thomasius had brought forward against the remedy for laesio enormis. All excluded it from their codes. It was commonly held that not fairness in
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