Page 428 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
years from the day he had made the seller aware of the non-conformity on the pain of forfeiting his rights. This meant that the period the buyer had granted to the seller to cure, had to be deducted from the two-year period within which the remedy for non-conformity could be instituted.
The proposal for a new Código does not attach such grave consequence to the requirement of notifying the seller within 'a reasonable time' of the non-conformity. The proposed article 1489 separates the claim for price reduction, rescission and damages caused by the non-conformity from the remedy for repair or replacement of the non- conforming thing. Irrespective of whether the buyer notified the seller of the non- conformity, he keeps the possibility to sue for price reduction or damages. In the event the seller had acted in bad faith, the buyer retains all remedies for non-conformity. Thus, the Spanish buyer who does not notify the seller of the non-conformity within a reasonable time after the non-conformity became known or should have become known to him only jeopardises his right to repair or replacement. He keeps the possibility to sue for other loss within five or two years, if the non-conformity lies in a defect, or ten or three years in the event of a third-party claim, counted from the day he received the thing in his possession.119
The committee's proposal to thus separate the claim for price reduction, rescission and damages caused by the non-conformity from the remedy for repair or replacement of the non-conforming thing resembles the systematic of the ABGB. The Austrian civil code also distinguishes between remedies for restoration of a breach of safeguarding duties and remedies for loss resulting of such a breach. Also similar to the ABGB, the Spanish proposal makes the scope of the seller's liability dependent on his bad faith.120 According to the ABGB, only deliberate fraud triggers a liability for lost profits. The proposal similarly determines that only sellers in bad faith can be held liable for lost profits.121
However, the Spanish proposal does not carry through the distinction between remedies for non-conformity and for compensation for loss resulting from non-conformity as far as the ABGB does. In the Austrian code the remedy for damages lying for all contractual and extra-contractual loss is perceived as a general remedy which has nothing to do with conformity. It is simply a claim for loss in accordance with the debtor's fault, irrespective of what event had caused the loss.122 The remedy is consequently brought under the general part of the ABGB on claims for loss and has a distinct period of limitation
119 Art. 1495 Proposal: Los derechos y acciones que corresponden al comprador por virtud del artículo 1490 prescriben: 1.o A los diez años, si la cosa vendida es un immueble y el derecho que el tercero pueda hacer valer sobre ella faculta para privar de la posesión al comprador. 2.o A los tres años en los demás casos. Los plazos se computarán a partir del día de la entrega de la cosa; pero si el vendedor hubiera ocultado al comprador, al celebrar el contrato, el derecho que el tercero pueda ejercitar, o hubiera intervenido posteriormente en su creación, se computarán a partir del día en que el comprador descubra su existencia o no pueda ignorarla; art. 1496 Código applies art. 1489 likewise to things subject to third- party claims.
120 See 7.4.3 (ABGB).
121 See 7.4.3; Art. 1489 Proposal.
122 See 8.6.
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