Page 437 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
two years counted from the moment the creditor has become or could be expected to have become aware of the facts as a result of which the right can be exercised.161 A maximum is set on ten years counted from the moment the debtor has to perform or from the act which gave rise to right to damages.162 Article 182 provides that the time parties use up in their negotiations about their rights or about the circumstances which might give rise to claims has to be added to the general limitation periods.163
Taking these provisions into consideration, it seems that the Proposal has succeeded in dealing with many of the pitfalls which lie in ambush when one tries to devise the law governing defects in and third-party claims on things sold.
First, the CESL brings the seller's liability for non-conformity and third-party claims under the same header of non-performance. As a result, the remedies buyers of defective things and of objects subject to a third-party claim are uniformly arranged. Importantly, the limitation periods of the remedies for third-party claims do not differ from those of the remedies for non-conformity. Only with regard to the buyer's duty in article 122 to notify the seller of a lack of conformity the regulation of third-party claims differs somewhat. The buyer of a thing subject to eviction does not need to notify the seller of the existence of third-party claims within two years from the time the goods were handed over.164
The ABGB's drafter Zeiller had already contended that it is difficult to predict when a third-party claim will be made, so that limitation should not begin before the third party actually asserted his right in the thing. By excluding the buyer of an object subject to a third-party to notify within two years, the CESL leaves open the possibility for the buyer to start proceedings, if a third party after two years of the thing's delivery claims a right, of which existence the buyer could not have been aware before that time.
Secondly, the CESL adopts a uniform system of limitation. Unlike Velencoso and O'Flynn suggest, the CESL's arrangement of the limitation of remedies for non- performance seems much clearer than the reformed BGB's.165 Contrary to the BGB, the CESL applies the same limitation regime to remedies for defects and third-party claims. The BGB still distinguishes between the two.166 Furthermore, according to the case law of the BGH, the period within which a buyer can sue for rescission of the contract differs from
lack of conformity if the buyer does not give the seller notice of the lack of conformity within two years
from the time at which the goods were actually handed over to the buyer in accordance with the contract.
161 Art. 179 (1) jo. art. 180 (1) CESL.
162 Art. 180 CESL: (1) The short period of prescription begins to run from the time when the creditor has
become, or could be expected to have become, aware of the facts as a result of which the right can be exercised. (2) The long period of prescription begins to run from the time when the debtor has to perform or, in the case of a right to damages, from the time of the act which gives rise to the right.
163 Art. 182 CESL: If the parties negotiate about the right, or about circumstances from which a claim relating to the right might arise, neither period of prescription expires before one year has passed since the last communication made in the negotiations or since one of the parties communicated to the other that it does not wish to pursue the negotiations.
164 Art. 122 (4) CESL: Paragraph 2 does not apply in respect of the third party claims or rights referred to in Article 102.
165 Velencoso & O'Flynn, 'The rules on Prescription', in: European Perspectives, p. 288.
166 See 8.3.1.
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