The warranty of latent defects in the contract of sale

Abstract

The contract of sale is considered as being one of the most important contracts in any legal system. Through it, is created a special relationship between two or more persons: the vendor and the purchaser. Legislation has been enacted which regulates this particular relationship. The law lays down general rules regarding the contract in general. However it also lays down certain obligations which both parties have, when entering into a contract of sale, to observe. An important feature of the said contract of sale is the protection, by the law, of the purchaser of which the warranty of latent defects is an important characteristic and it is of this specific obligation of the vendor that this thesis is concerned. This obligation is regulated by the Maltese Civil Code under the title: Of Warranty in Respect of latent defects of the Thing sold:" comprising section 1474 to 1482. Our law is in comformity with other systems which follow the Code Napoleon. However, in Malta, as well as in such legal systems , the law has today become rather inadequate because of the great developments in society as well as those of the contract itself and moreover the legislator has been rather inadequate in providing new provisions and infact, the sections governing the warranty of latent defects have not been amended or reformed since time immemorial; and it has been the responsibility of our courts, or for that matter, for the courts of all those countries following the code Napoleon , to brine about the reforms necessary so as to make the law fulfil the needs of society in the contract of sale and particulary in the warranty of latent defects; where advancement in technology has brought the necessity of new trends and reforms which were certainly not taken into consi deration by the original legislator for the simple reason that they were inexistent at the time . The warranty comes into effect when the thing bought and delivered is found to be affected by such vices or defects which render it unsuitable for the use to which it is destined or whiuh reduce its value : the seller is thus answerable for such defects towards the purchaser who may either dissolve the contract by the "actio redhibitorian" or demand the refund of part of the price by the "actio aestimatorian" or "quanti minoris". Although our law is not so upkeeping with developments in practtice, it is still law and so still effective. It is necessary therefore, to get an idea of what the warranty is and also how it is applied to discuss the provisions of the law themselves, also having regard to Judicial decisions and legal writers' opinions on such provisions . This thesis is not one which is based on the particular reforms necessary, it takes the law as it stands and discusses the postion prevailing today . It does however make reference or comment where there is the necessity of reform or where the countries , following the Code Napoleon , have taken a different approach or have adopted certain principles which have not yet been accepted here.