INTRODUCTION

In 1999 a European Directive was issued that required specific protection for the buyer of consumer goods. This was subsequently implemented in the various European jurisdictions. When repair or replacement of these goods, in the case of non-conformity, is impossible or cannot be demanded or when the seller refuses to provide either of these solutions, the buyer has the remedies of reduction in price and rescission. The corresponding liability of the seller does not necessarily depend on explicit warranties, contractual clauses or any kind of malicious intent (mens rea) on his side, but is simply imposed by the law or based on an implied warranty. In the Netherlands, the implementation of the Directive resulted in some changes in the civil code. These were promulgated in 2003. The remedies of price reduction and rescission, just mentioned, were adopted in a specific provision for sale contracts in book seven of the code (art 7:22 BW), next to the already existing general rules on rescission in view of breach of contract in book six (art 6:265 ff. BW).

Because of the many similarities between, on the one hand, these remedies of price reduction and rescission and, on the other, the Roman law actio quanti minoris and actio redhibitoria, it was argued that the ties between contemporary Dutch private law and Roman law in this respect had again become apparent. These ties had been severed in 1992, when, together with the introduction of the new Dutch civil code, the specific rule on the seller's liability for latent defects of the previous civil code, dating from 1838 (art 1543 OBW), had lost the force of law.