An analysis of article 1390 civil code

Abstract

This work analyses article 1390 of the Civil Code by way of jurisprudential approach. It first starts to examine the obligation of the vendor, namely that of delivering the thing in conformity with the agreed quality or sample. In so doing, it underlines that the Maltese view is moving towards that of Italian law because our courts no longer require that the quality of the thing be expressly agreed upon, it will suffice if that quality is expected from the thing. It then goes into detail about each remedy which is available to an aggrieved buyer, as per article 1390. Firstly, it examines the right to reject the thing and demand damages, and the dichotomy in the reasoning of the court on whether delivery acts as a waiver to this method of redress. It then proceeds to clearly define what amounts to ‘damages’. Subsequently, it examines the remedy of accepting the thing and be accorded a diminution in price. This makes it clear to the reader that nowadays this right is hardly ever renounced, not even through the use of the thing. In relation to this method of redress, this work also highlights that the diminution in price is not always determined by experts. Another central area which is comprehensively dealt with is the applicable forfeiture period found in article 1407. Moreover, this dissertation also highlights the factual and legal differences between this section of the law and the warranty for latent defects. This work then concludes by looking into the courts’ interpretation of whether article 1390 prevails over the general contractual remedy. Ultimately, several amendments are proposed in order to better protect the aggrieved buyer and to enhance consistency in the courts’ legal interpretation.