Page 435 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
Fault results in a limited liability consisting in compensation for loss, whereas deliberate fraud means that he also has to compensate for lost profits.147 The remedy lies for three years from the moment at which the recipient became aware of the loss and the person who had caused it.148
This approach seems altogether more just than the opaque Dutch system which does not distinguish between sellers in good faith and fraudulent sellers nor grants the buyer who sues on the grounds of delict or fraud a longer period to bring his claim. As observed earlier, under the NBW, both knowing and unknowing seller face a similar claim for loss. Moreover, Dutch civil law assists the seller who acts fraudulently by applying the short limitation period of the remedy for non-conformity, since this short limitation was extended to remedies for loss because of delict, error, and fraud, whenever the facts of the case could constitute non-conformity.149 Contrariwise, the ABGB ensures that the fraudulently acting seller has to fear for claims for full damages. Moreover, according to the ABGB the limitation period of the claim for loss does not start before the claimant has become aware of his loss and the person who caused it. As a result, a duped buyer can bring a remedy for such loss even after the remedies for Gewährleistung have expired.
In general, the solutions the ABGB offers seem the result of a more balanced compromise between common sense justice based on the natural law Verschuldensprinzip and the urge to renew the law governing defects in things sold under influence of a changed society and the increasing Europeanisation of national civil law.
That even an old concept as the remedy for lesion beyond moiety still has its merits today is also proven by the ABGB. As a last resort, according to the ABGB, a buyer has this age- old ius commune remedy at his disposal.150 In the event a thing is sold for less than half it just price, the buyer can sue for rescission. Alternatively, the seller can decide to compensate the buyer by paying back the excess. In a fairly recent case, the OGH declared that the remedies for Gewährleistung and lesion beyond moiety are fully compatible.151 This means that the remedies for non-conformity in the new §§ 932-933 do not exclude the buyer demanding compensation without asking for repair or replacement first.152 The buyer has three years to do this, calculated from the conclusion of the contract.153
147 § 1324 ABGB.
148 § 1489 ABGB.
149 See 8.2.1.
150 § 934 ABGB.
151 OGH 17 April 2007, 10Ob21/07x: 'Nach herrschender Rechtsprechung und überwiegender Lehre stehen
daher das Gestaltungsrecht zur Vertragsaufhebung wegen Verkürzung über die Hälfte und die
Ansprüche wegen Gewährleistung miteinander in (voller) Konkurrenz'.
152 OGH 17 April 2007, 10Ob21/07x: 'Nachträgliche Verbesserungen der Sache konnten das
Anfechtungsrecht des Verkürzten hingegen - wie sich schon aus den bereits wiedergegebenen grundsätzlichen Ausführungen zu § 934 Abs 3 ABGB ergibt - nicht beseitigen'; Riedler, 'Systemfragen', p. 4. Contra Bydlinksi, 'Anwendungsbereich', p. 46.
153 § 1487 ABGB; Riedler, 'Systemfragen', p. 361.
433