16 Oct Defects in second-hand purchased goods
Defects in second-hand goods are also called hidden defects. These are defects that cannot be detected at the time of sale. In legal terms, this concept is used to refer to defects with which the buyer has the right to claim repair, or else, the termination of the contract.
They are defects with a certain level of severity that makes the correct use of the acquired property impossible. In this way, the defect would not make the purchase unusable, since if this were the case, we would be facing different damages with the option to claim through other options.
However, it is necessary that the damage be of such magnitude that the habitual use of the property is prevented or that, if known, it has been shown that the sale was not formalized or that it had been carried out under different conditions.
An example of this would be:
- Sales in which the buyer would not have acquired the property if he had been aware of the defect.
- Rentals where a price drop would have been negotiated due to damage.
In addition, defects should not be visible to the eye, that is why they are called hidden defects. The idea is that the buyer does not realize it at the time of purchase. In fact, there have been occasions in which the legislation has considered that the experience of the buyer allows to invalidate the detection of the defect. In other words, a car engine failure is not considered a hidden defect for a mechanic, or for example, a structural damage to a house is not for an architect either.
To be considered hidden defects, it must meet a series of requirements:
- That the damage is caused prior to the sale. If the seller could show that the damage was not there before the acquisition, the claim would end there.
- That the damage is serious. If the buyer was aware of the failure, it is necessary that the deal had not been closed, or a lower price had been negotiated.
- That the defect is hidden. If the defect is easily detectable, the buyer loses his right to claim, or at least not as a hidden defect.
The term to carry out legal actions by the buyer will be six months. This period is of expiration and not of prescription, so it must be appreciated ex officio by the Courts. It must be borne in mind that on expiration the “dies a quo” is that of the delivery date of the purchase to be legally established and does not admit interruption.
In the case of a commercial sale, the term to carry out legal actions for hidden defects is even shorter, establishing in the Commercial Code that it will be thirty days after delivery. If the buyer does not claim in this period, he will lose all action and the right to repeat said cause against the seller.
However, when the defect is so serious as to be considered that what was acquired is different from what was purchased, that is to say that the defect makes the object unfit for use, we are before an action of “aliud pro alio”, whose term to exercise it will be 5 years, according to art. 1964 of the Civil Code.
At Ramallo Abogados we will study your case in a personalized way, informing you in advance of both the viability and the necessary conditions in the claim process.