Page 412 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
general sense of justice that a defrauded buyer should still be able to pursue his right even after his contractual remedies have expired. It would be strange indeed, if the deliberately defrauding seller, who behaved more reprehensible than one not involved in deliberate fraud, benefits no less from the short limitation in article 7:23 BW.38 That deliberate fraud has been committed in the wake of performing a contract does not change the fact that it is still deliberate fraud for which a particular remedy and corresponding limitation have been brought to life. Hence, the NBW's disregarding the age-old ius commune-principle that the consequences sellers face should depend on their behaviour gives rise to legal controversy.39
Problems concerning the limitation of the remedy for non-conformity also surface in the event of encumbrances and eviction concerning the sold thing. Article 7:15 NBW has a separate provision in which it is stated that the seller should also deliver the object free from encumbrances. Article 7:16 BW formulates a duty for the seller to come to the aid of the buyer, if the buyer is sued for eviction. The question is whether these duties are subject to the general five-year limitation for non-performance40 or whether the buyer must bring a remedy within the two-year period for non-conformity.41 Both positions are defended. The Rechtbank42 of 's-Hertogenbosch decided that a remedy for encumbrances can be brought within five-years.43 Contrariwise, the Rechtbank of the Mid-Netherlands44 applies the two-year limitation for non-conformity to land encumbered with a servitude.45 The latter approach is in keeping with ius commune. A servitude had always been considered as an encumbrance on land to which the aedilician remedies for defects in the thing applied.46 Finally, the Rechtbank in Zutphen decided that the remedy for non- conformity in a mixed contract is subject to a five-year limitation instead of the two-year limitation of 7:23 (2) NBW.47 To conclude, the law reform of 1992 does not seem to have made the law of limitation of remedies for non-conformity, encumbrances on immovables, and eviction less complicated.
The difficulties elicited by the Dutch law reform could have been avoided, if the Dutch lawgiver in keeping with the ABGB had, first, created a separate remedy for loss as a result from non-conformity, non-performance, error and deliberate fraud with its own limitation period and requirements. Irrespective of the cause that underlies their claim, Austrian parties who have suffered loss, must bring a claim within three years after the damages and person who has caused it had become known. This arrangement prevents
38 Hijma, 'Koop en Ruil', p. 736.
39 See the sections on 'Increased liability' throughout this book.
40 Art. 3:307(1) NBW.
41 Art. 7:23(2) NBW.
42 Lower county court of first instance.
43 Hof 's-Hertogenbosch 12 december 2013, ECLI:NL:GHSHE:2013:6068, no. 5.10.7; also Rb. Rotterdam,
16 February 2011, ECLI:NL:RBROT:2011:BP6549, n.p.
44 The district Mid-Netherlands (Midden-Nederland) comprises the provinces of Utrecht and Flevoland.
45 Rb. Midden-Nederland 18 June 2014, ECLI:NL:RBMNE:2014:3090, no. 5.4.
46 Hof Arnhem-Leeuwarden 12 April 2016, ECLI:NL:GHARL:2016:2891, no. 4.9.
47 Rb. Zutphen, 12 October 2011, ECLI:NL:RBZUT:2011:BU2146, no. 7.4.
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