Sanitation for hidden defects in the sale of housing

hidden vice sale

How to claim when hidden vices appear in our home?

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Concept of sanitation for hidden defects

Sanitation for hidden defects is one of the obligations of the seller provided for in the article 1461 Civil Code, when you arrange that "The seller is obliged to deliver and clean up the thing being sold."

In particular, article refers to said obligation 1484 CC when it indicates that

"The seller will be obliged to sanitation for the hidden defects that the thing sold may have, if they make it inappropriate for the use for which it is intended, or if they diminish this use in such a way that, if the buyer knew them, I would not have bought it or given a lower price for it; but it will not be responsible for manifest or visible defects., neither of those who are not, if the buyer is an expert that, by reason of their trade or profession, I must have easily met them. ”

This rule is reiterated in the article 1485 CC by establishing that "The seller responds to the buyer of the sanitation for the hidden vices or defects of the thing sold, even if I ignored them. This provision shall not apply when the contrary has been stipulated., and the seller will ignore the hidden vices or defects of what is sold”. The justification for this precept is that, if I do not exist, bad faith would be protected.

Hidden vice requirements

Article 1484 CC demands that the defect of the thing sold, to deserve the rating of "Hidden vice" meet a triple condition: must be serious -but not so serious that it can be considered that something other than the sold one was delivered-, hidden and preexisting. Its, therefore, impairments, imperfections or adulterations of the thing.

Hidden vice

Article 1484 CC states that the buyer will not have to respond "of manifest or visible defects, neither of those who are not, if the buyer is an expert that, by reason of their trade or profession, I should have known them easily. It is, therefore, that the vice was objectively unknown, at the time of the conclusion of the contract, by the buyer, without it being able, with a medium diligence -or higher, in case of being an expert- know him.

Pre-existing vice

The thing sold should have such defects at the time of the sale. Otherwise, would escape the seller's responsibility for hidden defects.

Vice severity

Last, regarding the severity of the vice, Article 1484 CC demands that the entity of the vice is such that it does the thing improper for its intended use, or if they diminish this use in such a way that, if the buyer knew them, I would not have acquired it or would have given a lower price for it ”.

Accordingly, the relevant severity to determine the origin of the sanitation indicates that:

i) vice does the wrong thing for its intended use, understanding as such the normal and objectively proper use of the thing; the

ii) to decrease in such a way that use that, if the buyer had known the defect, would not have purchased the item or paid a lower price. In this aspect, it is necessary to specify that it is not necessary that the vice be definitive and not removable, with or without repair.

Exercisable actions against hidden vices

The instruments that the legal system puts at the service of the buyer who receives a thing with hidden defects are two, action redhibitoria and the action how small. Both, included within the so-called building actions, are provided for in the article 1486 CC, cuando establece que "In the cases of the two previous articles, the buyer may choose to withdraw from the contract, paying him the expenses he paid, or lower a proportional amount of the price, in the opinion of experts. ”

The term to exercise both actions is six months from the delivery of the thing sold, in accordance with the provisions of the article 1490 CC. This term is expiration, although it would begin to count since the buyer's claims ceased or the discussions between the contractors due to vice or worship, or from the knowledge of vices, según reiterada jurisprudencia.

It should be remembered that the regulation of sanitation for hidden defects is special and additional and does not eliminate other actions in favor of the buyer that could be based on the general rules of the contract. In this regard, these actions must be distinguished from the assumptions of aliud pro alio, that only occur when the vice is so serious that it can be understood that there is full breach of the obligation to deliver the thing. this action, therefore, is covered in the articles 1101 and 1124, that allow the contractual resolution when, simply, something different from the contracted is delivered.

Redhibitory action

By exercising the redhibitory action, the buyer can withdraw from the contract for breach in case of hidden defects in the thing purchased. Also, Article according to 1486 CC, "If the seller knew the hidden defects or vices of the thing sold and did not disclose them to the buyer, You will have the same option and you will also be compensated for damages, if I opted for termination. ”

Action for price reduction

For his part, action how small, or action to reduce the price, allows the buyer to reduce the price an amount proportional to the hidden vice of the thing sold.

The price reduction must be made to the extent that corresponds to the difference in value determined by the hidden vice, but comparing the price of the flawed thing with the contractual paid, not at market value. In the event that the purpose for which the thing was to be destined was not what would ordinarily correspond to it, the reduction of the price will be calculated according to the reduction of the suitability for said purpose.

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