Page 405 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

Chapter Eight. Contemporary civil law
8.1 Introduction
The previous chapter of this study demonstrated that the civil codes which began to appear in the late 18th century solved some ius commune-difficulties with regard to the law governing defects in the thing exchanged for money, but at the same time engendered new problems. In particular, the limitation of remedies for defects in exchanged items proved difficult to arrange in a satisfactory manner for both doctrine and practice. Difficulties were enhanced because the codes kept the demarcation of remedies for defects in the thing sold, encumbrances, and eviction intact or in some cases even further accentuated it. As all these remedies which not infrequently concurred had their own characteristics, complexities arose which proved difficult to disentangle.
From the early 20th century onwards, legal scholarship in various countries acknowledged that there were difficulties in their civil codes, notably with regard to the limitation of the various remedies which a recipient of a thing exchanged for money could institute. Minor revisions of civil codes were undertaken, as for example the 1838 and 2005 statutes modifying the Code civil's limitation, and the 1916 revision of the ABGB.1 In addition, problematic issues were partly solved by Courts in their case law.2 However, since judges can not determine which cases will make it to their desks and far-reaching legal adjustments through court decisions are doubtful in terms of democratic legitimacy, voices were elsewhere heard for large scale revisions.
In this respect, European integration and an increase of cross-border trade proved a catalyst for projects aimed at restructuring civil codes. The late 20th century experienced multiple projects by lawgivers who made the most of the mandatory transformation of European directives into national law and availed themselves of the opportunity to address problematic aspects of the civil codes in force at the same time. The majority of these codes had barely changed since their entering into force in the 18th or 19th century and were thought in need of an overhaul to meet the demands of the 20th and 21st century societies. In particular, Directive 1999/44/EC engendered law-making activities which reached far beyond consumer sales law, which was the Directive's object.
In this chapter, four major 20th century revisions of codes discussed in the previous chapter will be explored for their dealings with problems surrounding the remedies for defective things exchanged for money.3 Where possible, the content of these reforms is approached through the lens of legal history. It will be pronounced upon whether the choices which the reformers made are fortunate or likely to engender new problems which a look at history might have helped avoiding.
First, for each revision it is investigated how it deals with the dichotomy between
1 2
3
See 7.3.3 and 7.4.3.
See for a decision about what limitation periods the Code civil applies to remedies for defects in leased things 7.3.3; in 1859, the Prussian Obertribunal explained the relation between the rules of limitation for remedies brought because of a breach of Gewährleistung and those brought for non-performance. See 7.2.3.
This study has taken account of legal developments up until 2010.
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