Defect of Sale

Liability for the Quantity Defect of the Sale

We used to talk about the Defects of Construction Work. We hope you enjoy it. This article we’ll talk about another defect, the defect of the sale. 

What Does Defects of Sale Mean?

Defects of the sale means quantity and quality in the property sold which impairs either its value or its fitness for ordinary purposes, or for the purposes of the contract. Sometimes, it could be either or both. However, in this article we focus on the quantity defect of both a movable property or an immovable property. There are some differences between a movable property or an immovable property.

Immovable Property 

In a sale of immovable property (for instance, land and/or house sale) where the total area is specified and the seller delivers the property less or more than the contracted for, the buyer has the option either to reject or accept it and pay the proportionate price. But, if the deficiency or the excess does not exceed 5% of the total area so specified. The buyer is bound to accept it and pay the proportionate price, The buyer can rescind the contract if the deficiency or excess is such that had he known of it he would not have entered into the contract.

Movable Property 

The Section 465 of the CCC stipulates that in a sale of movable property:

  1. Where the seller delivers the property less than he contracted for, the buyer may reject it; but if the buyer accepts it, he must pay the proportionate price.
  2. Where the seller delivers the property more than he contracted for, the buyer may accept the property according to the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the property so delivered, he must pay the proportionate price.
  3. Where the seller delivers the property he contracted for mixed with the property of a different description not included in the contract, the buyer may accept the property according to the contract and reject the rest, or he may reject the whole.

Keep this fact in mind, the Section 466 and 465 give the buyer the option to reject or accept, isn’t the seller’s option.

Who has the Liability for the Defects?

Of course, the seller has a liability for the defect although there is no agreement between the seller and buyer about the liability for defect, whether the seller knew or did not know of the existence of the defect. That is in accordance with the Section 472 of the Civil and Commercial Code (CCC). 

Exception of the Liability For the Seller.

There are some exceptions to the Seller’s liability. First, under Section 473 of CCC. The seller is not liable in the following cases:

  1. If the buyer knew of the defect at the time of sale, or would have known of it if he had exercised such care as might be expected from a person of ordinary prudence.
  2. If the defect was apparent at the time of the delivery, and the buyer accepts the property without reservation.
  3. If the property was sold by public auction.

Second, there is agreement that the Seller doesn’t have Liability for the defect. The defect of sale does not relate to public order or good morals. Therefore, the parties can make a different agreement to this law.

Prescription of Liability Claim.

The claim under Section 466 above is one year after the delivery date (Section 467 of the CCC). Another claim is 1 year from the date of the discovery of the defect (Section 474 of the CCC). 

In this specific liability, time is precious as you read that the prescription period is one year. So to save your benefit, it is a good idea to consult us to prepare and assist you before and after the sale. Our experienced team is ready to provide you with the best service.

Article by
Akenarin Thongplod, Thai Barrister at Law