Page 408 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
One argument in favour of keeping the remedies for breach of the duty to safeguard from defects in the thing intact which Nauta had to deal with was that articles 1544-45 distinguished between a seller aware of the defect and a seller who was not. The first was liable for all the buyer's loss, in accordance with ius commune-doctrine based on D. 19.1.13pr.12 This distinction between knowing and unknowing seller would disappear if Nauta's proposals would be implemented. Nauta aims to circumvent this problem by considering that a duty to deliver a thing free from defects as a contractual performance logically implies the seller's liability for all loss in the event of non-performance by delivering a defective item. Yet, Nauta here confuses the seller's liability to compensate for not living up to a contractual obligation and the question how or what he has to compensate for. That a duty to compensate follows makes sense indeed. That this should consist of all loss without further distinction, is, however, not self-evident and needs to be better explained than Nauta appears to be able to. After all, with the exception of the BGB, all other major European codes distinguished between sellers in good and bad faith.
Be that as it may, in the years after Nauta's advice, case law continued to struggle with the problematic aspects he had noted. One of drafters of the new BW, of which the books 6 and 7, relevant to this study, were enacted on the first of January 1992 13, was the legal historian E.M. Meijer. Meijer took these issues addressed by Nauta into account and came up with solutions which closely resembled the changes proposed by him.
In keeping with Nauta's view, the NBW no longer formulates safeguarding duties. The seller's duty to safeguard from defects in things is replaced by a duty to deliver the thing in conformity with what was contractually agreed, which duty is part of the seller's general duty to perform.14 The duty to deliver in conformity comprises that the object sold should be free from defects and that there should not be delivered another object than the object agreed upon. Hence, the earlier mentioned example of the horse which on delivery appears to be younger than agreed, falls within the scope of this duty. The lawgiver thus hoped to have got rid of the problematic issue as to whether the buyer of a thing with which something appeared to be wrong had to sue for non-performance or for breach of a safeguarding duty. A buyer no longer runs the risk of losing his case for wrongly bringing the remedy for non-performance, while the right remedy for breach of the seller's safeguarding duty had already expired.
Furthermore, the NBW no longer has a duty for the seller to safeguard the buyer from encumbrances on the thing sold. Instead, article 7:15 states a duty to deliver free from encumbrances.15 According to the lawgiver's comments to the provision, delivery of an encumbered item equalled non-performance, to which consequently the general
12 Nauta, 'Preadvies', p. 58
13 Florijn, Ontstaan, p. 1. The first two books of the NBW were already enacted in 1970 and 1976. Book 9 is
still work in progress.
14 Art. 7:17 (1) NBW: De afgeleverde zaak moet aan de overeenkomst beantwoorden.
15 Art. 7:15 (1) NBW: De verkoper is verplicht de verkochte zaak in eigendom over te dragen vrij van alle
bijzondere lasten en beperkingen, met uitzondering van die welke de koper uitdrukkelijk heeft aanvaard.
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