In his pioneering work Das Recht des Warenkaufs,
Ernst Rabel undertook a comparative analysis of sales
laws with a view to postulating common global rules
on the sale of goods. Following a review of the concept
of ‘lack of conformity’ of goods to the
contract in different western legal systems, Rabel reached
the following conclusion:
 “Das
»Wesen« der Gewährleistung ist nur
historisch erklärbar. In einem rationellen System
ein Stück Vertragsrecht, das ausdrüchliche
Fürsorge nur in einem bescheidenen Mabe benötigt.”
The
background to Rabel’s conclusion was that the
legal systems which he had studied had differing views
about the legal conditions for a buyer to claim that
the goods lack conformity to the contract. Thus, he
found that some legal systems considered lack of conformity
from a standpoint which has its roots in the Roman law
principle of tale quale, where it is assumed that the
goods are ‘bought as seen’ (also referred
to as the principle of caveat emptor), according to
which there is an assumption that the buyer bears the
risk if it appears that the goods do not conform to
the contract. Other legal systems had developed more
balanced rules, where the assumption was that the seller
is responsible for defects in the goods, including those
based on explicit or implicit guarantees about the quality
of the goods (and the principle of caveat venditor which
is derived from this), while yet other legal systems
have operated without codified definitions of lack of
conformity. Here the assessment of lack of conformity
was developed in the practice of the courts and in theory
on the basis of principles which were largely similar
to those known from the other legal systems with codified
rules for assessing lack of conformity.
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