Defects in the goods sold

The regulation of a defect in an item is found in the section of the Code dealing with warranty for defects in a sold item. A material defect is a case of improper performance of an obligation.

Definition of defect

The legislator makes a distinction between physical and legal defects in an item. According to Article 556 of the Civil Code, the seller is liable to the buyer if the thing sold has a defect (warranty).

Legal defect

A thing is affected by a legal defect if:

• is owned by a third party,
• is encumbered by a right of a third party, or
• the restriction on the use or disposal of the thing results from a decision or ruling of a competent authority.

In the case of the sale of a right, a legal defect may also consist of the non-existence of a right. Other defects are physical defects.

Physical defect

A physical defect consists in the non-conformity of the thing sold with the contract, in particular the thing sold is not in conformity with the contract if:
1) it does not have the characteristics which a thing of that kind should have by reason of the purpose stated in the contract or resulting from the circumstances or intended use;
2) it does not have the characteristics which the seller assured the buyer of, including by presenting a sample or model;
3) it is unsuitable for the purpose which the buyer communicated to the seller at the conclusion of the contract and the seller has not raised an objection to such purpose;
4) it has been delivered to the buyer incomplete.
If the purchaser is a consumer, the public assurances of the manufacturer or its representative, of the person who places the thing on the market in the course of his business, and of the person who, by affixing his name, trade mark or other distinctive sign to the thing sold, presents himself as the manufacturer, shall be treated on a par with the assurances of the seller.
The thing sold is also defective if it was incorrectly assembled and started up, if these actions were performed by the seller or a third party for whom the seller is responsible, or by the buyer who followed the instructions received from the seller.

Other cases

The above enumeration of physical and legal defects was created for the purposes of the sales warranty regulation. The sales warranty is a type of special liability for improper performance of an obligation. Other cases that constitute non-performance or improper performance of an obligation are not defects of the thing, but their occurrence may justify the triggering of contractual liability measures.
Legal status as at 4.12.2024