by | Mar 1, 2022 | Blog

One of the topics that gives rise to an abundance of cases in the purchase and sale sector is that relating to civil action for defects and hidden defects in the thing purchased by the purchaser who has seen his expectations defrauded with regard to the object of the contract, in detecting those defects have appeared that were not perceptible to the naked eye when the thing sold was examined. For this reason, in this article we give the keys to the regulation of the remedy for hidden defects or flaws in the thing sold:

Is the vendor obliged to respond for the hidden faults or defects of the thing sold?

The general rule establishes that the vendor is liable to the buyer for the hidden faults or defects of the thing sold, even if he is unaware of them. In this case, the vendor will suffer the loss, and will have to return the price and pay the costs of the contract.

The vendor shall be obliged to repair any hidden defects in the sold item, provided that they make it unsuitable for the use for which it is intended. These defects must diminish the use or value of the thing sold in such a way that, had they been known, the buyer would not have acquired it or would have paid less for it. However, the parties may agree otherwise in the contract and exempt the seller from this obligation.

It is important to point out that these defects must be hidden, which is why the vendor will not be liable for those defects that are visible, nor for those that are not, if the buyer is an expert who, due to his trade or profession, should easily be aware of them.

What should I do if I detect defects in the sold item?

First of all, you have to distinguish the type of defect. A hidden defect is considered to exist when the defect in the object acquired constitutes an anomaly that distinguishes this object from others of the same species or quality, makes it unsuitable for the purpose for which it is intended without totally invalidating it and diminishes its use with clear reference to its express purpose. On the other hand, there is the case of delivery of a different thing when there is a total incompliance due to the inability of the object or ineptitude of the object to fulfil the function that motivated its acquisition, with total dissatisfaction of the buyer. In both cases, it is advisable to carry out an expert report to accredit the existence of the damage and its quantification.

One of the key issues in this question is that of the “knowledge” of the defects by the seller, since if this knowledge is demonstrated, the seller will be liable for the damages caused.

What options do I have?

The buyer has the option of withdrawing from the contract, with the vendor paying him the costs he paid or reducing a proportional amount of the price in accordance with the valuation of the defect. In the cases in which the option is taken to reduce the price paid, it will be necessary to provide expert evidence quantifying the damage.

If the seller was aware of the hidden defects or flaws in the thing sold and did not inform the buyer of them, in addition to the above, he will be compensated for the damages caused, if the buyer opts for rescission.

How long do I have to make a legal claim?

Six months, calculated from the date of delivery of the item that is due, which is understood to be an expiry period for which no extrajudicial claims can be made.


If you wish to consult us about this matter and know your rights, contact us at info@figueras.legal and ask for a free initial consultation.