Page 463 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER NINE
periods of limitation to personal remedies. This enabled natural law-scholars to dismiss the periods of remedies for defects mentioned in the Corpus iuris civilis or to discard differences in limitation between the remedy for rescission and reduction of price. Nevertheless, the natural law-scholars' inclination to develop a coherent legal regime was shipwrecked by legal practice. Acquiescing in Cicero's adage that 'that laws only remedy iniquities in as far as these are manageable', natural law scholars turned a blind eye to local deviations concerning the outlook of remedies. Consequently, throughout Europe various limitation periods for remedies for defects remained in existence.
Practical matters cast similar doubts on the question concerning which features the remedy for lesion beyond moiety should possess. Some scholars considered the requirement of a prejudice of more than half the thing's just price too arbitrary. Thomasius even replaced the requirement of fairness in exchange by the exclusive demand that parties should have agreed on a price by their free will. The remedy for lesion beyond moiety, being based on a 'chimerical' concept of justice, should be relegated to the dustbin of history.
Though Thomasius' views did not gain much support among his contemporary colleagues, it would prove attractive to the drafters of some, but certainly not of all, civil codes which made their appearance on the European continent from the end of the 18th century onwards. By and large, those civil codes brought a fragmented picture of the law about defects in exchanged objects. The developments in early modern Castilian and later natural law which hinted at an increasing uniformity of remedies for defects in things exchanged for money was only partly continued in the various codification projects. Notably the Prussian ALR and the Austrian ABGB were inspired by natural law views. 'Givers' or 'promisors' in all contracts in which both parties had to perform had to safeguard the 'recipient' from defects in, encumbrances on, and third-party claims to the delivered item. Hence, the remedies of the recipient in case of breach of one of these safeguarding duties all answered to the same periods of limitation. The giver's or promisor's scope of liability was determined in keeping with his degree of faulty behaviour. Finally, the ALR and ABGB kept the remedy for lesion beyond moiety in reserve as a subsidiary means to correct gross contractual imbalance. However, neither the ALR or ABGB took the logical step of subjecting breach of safeguarding duties (Gewährleistung) and breach of performance to the same limitation.
Other codes, such as the Code civil, BW 1838, and the BGB 1900 harked back to a mixture of ius commune, natural law, and local custom. However, these sources did not prove compatible, so that difficulties in the interpretation of these codes soon surfaced. Such was particularly the case regarding the limitation of the remedies for exchanged things. Due to an artificial difference between breach of non-performance and breach of something approximatively translated as the promisor's 'safeguarding duties' (Gewährleistung, garantie, vrijwaring, saneamiento), the remedies for defects, encumbrances, and third-party claims were again dogmatically separated. Consequently, it
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