- By Agustí SOT
The Spanish Civil Code provides that the seller will be obliged to take care of the hidden defects that the thing sold would have, in case they make it improper for the use to which it is destined, or if it diminishes in such a way such use as in if the buyer had known it, he would not have acquired it or given a lower price for it.
But , What is meant by hidden defects or latent defects? According to jurisprudential doctrine, in order for the vendor to be held responsible for such hidden defects, the following requirements must be met:
1st) The vice must be hidden; It must not be a manifest defect or is in plain sight.
However, the hidden nature of the vice will not occur in those cases in which despite not being in sight, the buyer should know about it by reason of their profession or trade
For example, in the case of a purchase of a second-hand vehicle when the buyer is a mechanic by profession and therefore could have known the real state of the same.
In the same sense, the existing defects can not be considered as latent defects either the buyer for any reason, has effective knowledge about it, given that, in such case, he will have had the opportunity to agree on the price that suits him according to the of the real characteristics of the good object of the sale.
2nd) The vice must be pre-existing to the sale; the vice must exist at the moment of perfection of the contract, even if the same comes to light after the conclusion of the same. Hence, the buyer must prove not only the existence of the vice, but also that there was at the time of perfection the contract because otherwise the seller will not respond on it.
3rd) The vice must be serious; it is required that the defect review a certain seriousness, since it will only be considered as such if they cause the object of the sale to become totally or partially useless for the use that is its own or that diminishes its value to the extent that the buyer had known either he would not have acquired it or he would have paid a lower price.
4th) In Spain, the action must be exercised within the legal term of 6 months counted since the object of the sale was delivered. The jurisprudence unanimously has determined that we were before a period of expiration, reason for which the judge must appreciate it ex officio and can not be interrupted.
As an example, jurisprudence has considered as hidden defects, among others, the following ones:
- Purchase of a home that was affected by an extraordinary spill accrued by pavement and sidewalk works and installation of lighting, approved in meetings held prior to the conclusion of the purchase agreement.
- Water leaks in a house that caused humidity, taking into account that the pipes were not visible and only those defects could be appreciated once the buyer took possession of it and proceeded to open the water stopcock.
- A second-hand car that suffered a serious breakdown in the injection system, taking into account that the odometer was altered, so the buyer made the purchase trusting that it was in better condition and with fewer kilometers.
- Purchase of a house in which the beams were built with aluminous cement.
In this type of procedure it is of vital importance the accreditation of the hidden defects that we claim to have the burden of proof of the same the buyer who claims the responsibility of the seller. Therefore, to ensure the success of this action is essential to gather all the evidence that allows us to prove not only the existence of the vice in the thing sold but the same has the requirements indicated above.
For all this, in case we are faced with the concurrence of the indicated requirements and we prove the existence of the same, regardless of whether or not the seller has recognition of these, the buyer may choose between:
- The withdrawal of the contract, interested to proceed to the payment of the price paid
- A proportional reduction of the price paid according to the entity of the defects of the good
In the event that the buyer opts for the rescission of the contract, if the seller knew the defects of the property, the buyer is also empowered to request compensation for the damages and losses that have been caused.
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