The warranty of delivery: an interesting avenue

This post, published on Éditions Yvon Blais’ blog on latent defects on January 15, 2018 (FR), cites the judgement in Labrie v. Vanasse (Full Text | Fiche Quantum) and the decision of the Superior Court in Robichaud v. Lemay (Full Text | Fiche Quantum), which deal with the warranty of delivery. Specifically, the warranty of delivery can sometimes be an interesting avenue when a seller has made specific representations to his buyer as to the specific characteristics of a property and said property ultimately is not in accordance with what had been agreed upon/represented by the seller. 

In Labrie v. Vanasse, the seller represented to the buyer that the house was equipped with a septic tank, a disposal field, and a sump water collector. The buyer subsequently discovered that despite the seller’s representations, there was no septic tank, but rather only a sump for collecting wastewater. The trial judge considered this to be a latent defect under section 1726 of the Civil Code of Quebec and refused to award damages on the grounds that the seller was not aware of the defect. On appeal from that judgment, the Court of Appeal confirmed that it was not a situation of latent defects, but rather one of the seller’s failure to fulfill his obligation to deliver. The trial judge’s refusal to award damages is irrelevant as the foundation of the action is not a latent defect, but rather the obligation to deliver. 

Specifically, it is possible for a buyer who invokes the warranty of delivery to claim damages without demonstrating the seller’s real or presumed knowledge, as required by section 1728 C.C.Q., as this only applies to a claim made under the legal warranty of quality of section 1726 C.C.Q.