5. Liability for Latent Defects

The rules relating to the seller's liability for latent defects as contained in the BGB (and other codifications) are charac­terized by a number of peculiarities: the buyer cannot ask for the defect to be remedied; he is confined, in principle, to

* Bauer (n.

⁶⁷ See ibid. 98 ff. On the history of the generic sale, see Wolfgang Ernst, ’Kurze Rechlsgeschichle des Gattungskaufc’, (1999) 7 ZEuP 583 if.

⁶⁸ For all details, see Bauer (n. 59) 113 ff. (on Roman-Dutch law). claiming reduction of the purchase price (Minderung) or cancellation of the contract with the result that the parties have to return what they have given (Wandelung).^[336] In two narrowly defined situations (a promised quality in the object of the sale is absent; the defect has been fraudu­lently concealed) a claim for damages is available.'⁰ And but for cases of fraudulent concealment, all claims based on a latent defect are subject to an exceptionally short prescription period.^[337] Once again, it can easily be demon­strated that all these rules derive from Roman law.'^[338] There, indeed, they made good sense.^[339] Liability under the aedilitian edict covered physical defects in slaves and live­stock and certain defects of character in slaves. In nearly all these situations it would have been impossible to remedy the defect. In many of these situations it would have been, even after a few months, very difficult to deter­mine whether the defect had existed at the time of sale. A type of liability which was based on the simple alternative of redhibition or reduction of the price and which, in particular, did not involve difficult enquiries as to fault or damages was well suited for everyday market transac­tions. And liability for dolus and dicta vel protnissa had to be available in terms of what was required by the precepts of good faith. In their modern generalized form, these Roman rules have changed their function; they constitute peculiar deviations from the normal liability regime. They have led to unsatisfactory results and considerable doctri­nal headache.^{[340] [341]} An integration of liability for latent defects into generalized liability rules for breach of contract is overdue.⁷-"