Page 429 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
which starts to run at the moment on which the creditor became known with the loss and the person who had caused it. Irrespective of whether the remedy for repair or compensation for a breach of safeguarding duty has expired, the buyer under the ABGB keeps a possibility to sue for damages which resulted from the breach. Contrariwise, the Spanish proposal arranges the buyer's claims for damages under the remedy for non- conformity in article 1489, which makes it subject to the limitation of remedies for non- conformity.
In this regard, a complicating factor of the Spanish proposal is that claims for reduction of price, rescission, and loss are also available under the header of non- performance in article 1190. For these claims the general five-year limitation period applies which starts to run at the moment the creditor becomes acquainted with the damages and the person who caused them.123 As non-conformity is considered a species of non- performance, the questions arises what differences there are between the remedies for price reduction, rescission, and damages based on non-conformity and their equivalents which lie for non-performance. For example, can a buyer of a non-conforming thing bring only the claims on the basis of article 1489 within the limitation period of the remedy for non-conformity? The separate mentioning of the claims seems to suggest so. On the other hand, in keeping with the committee's view that a uniform concept of non-performance and corresponding remedies should hold sway in the revised Código124, one might interpret the remedies in article 1489 as a mere repetition of the general remedies for non-performance as summed up in article 1190. Yet, these remedies are limited in accordance with the general five-year period which does not start to run before the creditor becomes acquainted with the damages and the person who caused them.125 Hence, which limitation period should be applied to the remedies in 1489? As the proposal does not provide a specific answer, it is to be expected that the question will be posed by future litigants in court. The drafters of the proposal would have done wiser, had they proposed one and the same limitation period for price reduction, rescission, and damages, irrespective of the place in the Código where one encounters them, as exactly the ABGB has done for all remedies for contractual and non-contractual damages.
Similarly problematic seems the absence of clear drawn-out boundaries between remedies for non-conformity and for error or fraud. In the latter cases a remedy lies in the Código now in force for avoidance of the contract. This remedy can be brought within four years from the contract's conclusion.126 However, in the proposal the limitation of the remedy for avoidance because of error or fraud is counted from the day the creditor became known with the error or fraud.127 As a result, the remedy for error or fraud will
123 Art. 1190 Proposal; Gómez Calle, 'Los remedios', p. 80. For their limitation see art. 1964 Código. The interpretation of this article can be found on page 4 of the earlier proposed and carried out Reforma de la prescripción y la caducidad by the Comisión general de codificación.
124 Ponce de León, Propuesta, p. 25.
125 Reforma, p. 4.
126 Art. 1301 Código: La acción de nulidad sólo durará cuatro años. Este tiempo empezará a correr... En los
de error, o dolo, o falsedad de la causa, desde la consumación del contrato...
127 Art. 1304 Proposal: La acción caducará a los dos años y este tiempo empezará a correr... en los de
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