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Law Column

January 2010 Law Column

SALE

Without legal warranty

Pascal Comeau, lawyer

 

According to article 1726 of the Quebec Civil Code, a seller must guarantee to the buyer that the item being sold is free from hidden defects. This is known as a “warranty of quality.” Article 1733 of the Quebec Civil Code, however, allows an exception to be made where “a seller who is not a professional seller,” may waive liability when the buyer “buys property at his or her own risk.”

 

Many sellers think they can take advantage of this exception by adding the words “sold without legal warranty” to the bill of sale. However, a recent judgment by the Superior Court (Sultan v. Gitman, JE 2009-1951) accepted a buyer’s claim against a seller for hidden defects, even though the contract contained the words “without warranty against hidden defects.”

 

The court determined that for a waiver of liability to be valid, the statement that the buyer is buying the goods “at his or her own risk and peril” must appear explicitly in writing in the bill of sale. If it does not, exclusion from liability cannot be claimed against the buyer.

 

If you wish to sell something without being held liable for hidden defects, you must write that the item is “sold at the buyer’s own risk and peril, without warranty against hidden defects” and not merely that “this sale is made without legal warranty.”