Page 439 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CONTEMPORARY CIVIL LAW
8.8 Summary and concluding remarks
Central to this chapter were two issues concerning the law about latent defects in the civil law currently in force in various European countries. First, lawgivers in the Netherlands, Germany, and Spain eliminated the dichotomy between non-performance and safeguarding duties of sellers in their civil codes. Instead, they made delivery of a thing free from defects and encumbrances part of the seller's duty to perform. The Dutch and German legislators expressed the duty of the seller to deliver free from defects in the concept of non-conformity under influence of Directive 1999/44/EC and the UN Convention on Contracts for the International Sale of Goods (CISG). It was part of the seller's performing duties to ensure that the sold item was in conformity with the contractual arrangements as agreed upon. In Spain, a proposal with similar content is presently pending. As a result, remedies for defects in things sold became species of the remedies lying for non-performance.
The broad concept of non-conformity in theory not only comprised liability for defects in the thing sold, but also liability for third-party claims, and encumbrances on the object. Nevertheless, only the Spanish committee for reform of Spain's Código civil drew this inference by applying the remedies for non-conformity similarly to cases in which the thing appeared liable to third-party claims or encumbrances (8.5). The ABGB has always equated the cases of eviction with a breach of a safeguarding duty, so that a uniform concept of the seller' liability was already present before Directive 1999/44/EC and the CISG began to put pressure on European legislators to rework their civil law accordingly (8.6). On the other hand, the Dutch NBW (8.2) and the Code civil (8.4) maintained that the seller's liability for third-party claims deserved its own approach, separated from the seller's liability for non-conformity. It was observed that, as a consequence, uncertainty exists in the NBW about how cases of eviction should be addressed (8.2). The German BGB faces similar issues. Although it has nominally brought eviction and defects in the object under the same header of non-conformity, since its 2002 reform, it retained different limitation periods for remedies for non-conformity for defects and eviction. Consequently, in practice the BGB continues to treat cases of third-party claims and situations in which the buyer is confronted with a defect in the thing he had bought differently (8.3).
The second issue central to this chapter concerned the limitation of remedies for defects in things exchanged. By and large, the limitation of remedies for non-conformity and competing remedies proved a tricky matter in the jurisdictions studied. The Dutch Supreme Court struggled with cases in which buyers brought remedies for loss (delict) or deliberate fraud based on the facts of non-conformity. It was not clear what limitation period applied then. In a debatable opinion the Supreme Court's General-Prosecutor advocated exclusively applying the limitation of the remedy for non-conformity, so that concurring remedies for delict or deliberate fraud would also expire within two years, instead of five. The Supreme Court followed the General-Prosecutor's argument (8.2.1).
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