Page 464 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

SUMMARY AND CONCLUDING REMARKS
could occur that in one jurisdiction a recipient who had been sold an encumbered object could start proceedings for as long as 30 years (Code civil), whereas under another regime he had to act within three (ABGB).
The drafters of the German BGB 1900 and the Spanish Código managed to avoid some of the aforementioned difficulties. Nevertheless, the BGB 1900 carried through the dogmatic distinction between non-performance and duties to safeguard. As in the BW 1838, the boundaries between short limitations of the remedies for breach of safeguarding duties and long periods for the remedies for non-performances were unclear and the subject of much legal debate. In short, though a few medieval intricacies had been sheared away from civil law, the law had not grown less complex. Particularly, the limitation of remedies posed major difficulties.
In the 20th and 21st centuries, committees for law reform in various European jurisdictions took up the task to tackle these issues. The NBW and BGB 2002 replaced the seller's safeguarding duties with the more broadly defined duty to delivery in conformity with the contract. However, this measure still left tricky questions about the limitation of various remedies unsolved. The same held true for the reforms of the Code civil and the Spanish Código. Only the ABGB proved remarkably capable of coping with the demands imposed in the 20th and 21st centuries. This was mainly because the code had always applied a broad definition of safeguarding duties and separated remedies for breach of Gewährleistung and non-performance from remedies for loss caused by such a breach.
Unlike their colleagues working with the Member States' national law, the drafters of a Common European Sales Law learned their lessons from history well. The CESL demonstrates adherence to a deductive natural law approach to law. In keeping with the ALR and ABGB, it brings all duties of the seller together under a single title of duties to perform. Moreover, the remedies a buyer has do not receive their features on the basis of non-performance but answer to general provisions applicable to all remedies irrespective of the breach of contract from which they originate. Finally, all remedies share the same period of limitation. Thus, the direction favoured by natural law doctrine has made a comprehensive entry into an influential piece of codified civil law. It is yet to be seen how robust this approach will prove over time.
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