Page 424 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
8.5 The Spanish Propuesta para la modernización del Derecho de obligaciones y contratos of 2009
Similar to the French Code civil, the BW 1838 and the BGB 1900, the Spanish Código civil of 1889 distinguishes between the seller's and lessor's duty to safeguard the buyer from defects in the thing sold (saneamiento) and the duty of the seller to perform his contractual obligations (cumplimiento).93 In agreement with some of their French colleagues, Spanish legal scholars considered this 19th century viewpoint a misfit in the 21st century society.94 Moreover, the need to accommodate Spain's national civil law to European private law was increasingly felt. Though initially the Spanish legislator, similar to the French, implemented Directive 1999/44/EC by means of a separate Consumer statute in 200395, voices were heard which argued for the incorporation of consumer sales in the Código.
In 2009, the Spanish committee for codification launched a proposal for the modernisation of the Spanish law of obligations in the Código civil. Inspired by the UN Convention on Contracts for the International Sale of Goods (CISG) and the European Principles of Contract law (PECL), the committee proposed an overhaul of the Código's law governing defects in things sold.96
The committee underpins its choice for discarding the safeguarding duties and replacing them by non-conformity by referring to Von Jhering's disqualification of the principle of favor debitoris.97 Instead of debtors, so the Spanish committee argues, creditors should get the benefit of the doubt in the event of non-performance. Creditors should always have a right to performance by the debtor, irrespective of the debtor's culpability, cases of impossibility and cases of which the performance would prove particularly detrimental to the debtor excepted.98
This change of perspective had already come to the fore in the treatment of the seller's liability for defects in things sold in the CISG and Directive 1999/44/EC. There, the seller - who may become a debtor, if what he sells turns out defective -, must deliver the goods without defects. A breach of that performance does not depend on whether or not the seller could be considered liable for the presence of defects. Thus, the buyer - or creditor, if the situation is explained in terms of Von Jhering's favor debitoris - gets the benefit of the doubt. According to the Spanish committee for the modernisation of the Código's, in the CISG and Directive 1999/44/EC a 'unitarian' concept of performance prevails based on Von Jhering's favor debitoris instead of a system in which the seller's
93 See 7.6.1.
94 Ponce de León, Propuesta, p. 17; the proposal can be retrieved from <http://www.mjusticia.gob.es>
Áreas temáticas> Actividad Legislativa> Comisión General de Codificación> Propuestas>; Gómez Calle,
'Los remedios', p. 33.
95 Ley 23/2003 de 10 de julio, de Garantías en la Venta de Bienes de Consumo.
96 Christiandl, 'Der Spanische Schuldrechtsmodernisierungsentwurf', p. 908.
97 A principle which, to my knowledge, does not seem to have played a role in the development of the law
of latent defects in the BGB.
98 Ponce de León, Propuesta, pp. 22-23; Christiandl, 'Der Spanische Schuldrechtsmodernisierungsentwurf',
p. 907.
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