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aliud pro alio

The default action does not expire in 6 months as repair hidden defects, and the notion of disability or dissatisfaction does not require concurrence of hidden defects

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D. Virgilio sued for breach of contract and compensation for damages to NÁUTICA PALAMÓS S.L.. (MERCANTILE), before the Court of First Instance and Instruction No. 1 La Bisbal, the 3 July 2.017.

The Court dismissed the application on the ground from the repair action hidden defects, expired at the time, and not satisfied the requirements of the doctrine aliud pro alio (give one thing for another).

Thus, D. Virgilio filed an appeal alleging error in the assessment of evidence and the application of doctrine and jurisprudence, what came to resolve the Judgment of the 2nd Civil Section of the Provincial Court of Girona, n.º 20/2018, of 18 January, discussed here.

Hechos

Appellant bought a boat to the merchant in 2.012, detecting faults while three, two of which came from the third, turn caused during the manufacturing process. Therefore, it was proved that the root defect existed when leaving the boat shipyard, tarde.La although he claimed amount was stated 24.084,16 €, for repair work.

Action for breach

The Arts. 1484 and 1485 CC determine the seller's obligation to clean up hidden defects, unless the purchaser could know or otherwise be agreed. On the other hand, Article. 1101 CC states that whoever fails to fulfill its obligations or incur fraud, neglect or default, It is subject to compensation for damages.

But demand did not exercise action for hidden defects, but of "aliud pro alio”:

<<This is has been delivered something, with some defects such as to make it unfit for purpose with hiring, which it implies and involves a substantial breach of the obligation to deliver the thing mentioned by the seller that assumes its responsibility ex article 1.101 Civil Code>>.

this action, under the law, requires:

1.- Heart failure inability object.

2.- Accordingly buyer dissatisfaction.

3.- Accordingly breach, effects resolutorios former art. 1124 and 1101 CC.

This action does not within six months applies to the art. 1490 CC set to bring an action aimed at obtaining reparations for hidden defects. Also, the notions of absolute inability or complete dissatisfaction does not require the concurrence of "hidden defects", that activate protection mechanisms arts. 1484 ff.

Expiration

The main difference between the actions of repair hidden defects and contract compliance is that the former is subjected to an exercise period 6 months, while the exercise period of the second is 15 years old, reduced 5 following the amendment by law 42/2015.

Dissatisfaction

Note that the objective dissatisfaction buyer is not an isolated or subjective element, but it comes from nature and normal use of the thing purchased, It is impossible to use.

Requirements

TS doctrine requires testing, so that the action of art resolutoria. 1.124 CC thrive:

1.- The existing contractual relationship.

2.- Reciprocity and enforceability of benefits.

3.- The serious breach by the defendant of benefits incumbent upon.

4.- The origin of such failure, in the conduct of the defendant obstativa.

5.- Fulfill its obligations by the actor, although the defendant's previous breach of its obligations frees.

However, supervening impossibility of fulfilling its performance, from causes physical or legal, the former debtor libera arts. 1.184 and 1.156 CC.

Conclusion

Ultimately, hidden defects allow the withdrawal or reduction to the price, while the ineptitude of the thing sold allows the contractual resolution ex art. 1124 CC, with compensation for damages.

A consequence of the above, and since the boat had a construction defect that prevented him from sailing, Section understood that to be the vessel unfit for navigation, the hidden defect ruled in favor of contractual breach.

Thus, They were imposed on the defendant's costs at first instance, without an express decision as to the costs of the appeal, Instance and the judgment was revoked, estimated claim to D. Virgil and condemning to pay MERCANTILE 24.084,16 € plus interest.

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