Even if a professional seller cannot invoke the tardiness of the notification, he may nonetheless invoke the absence of any notification whatsoever

This post, published on Éditions Yvon Blais’ blog on latent defects on April 13, 2018 (FR), discusses the judgment in Kadoch v. Construction Emmar inc. (Full Text | Fiche Quantum), which reminds us that the second paragraph of section 1739 C.C.Q. does not stipulate that the seller’s real or presumed awareness of a defect deprives him of the right to be notified of the defect by the buyer in writing.    

In this case, the buyers acquired an immovable from a professional seller, who, as a professional seller, is presumed to be aware of all defects. The buyers carried out corrective work before notifying their seller in writing, which is specifically required under section 1739 C.C.Q.

The buyers, in addition to pleading the situation’s urgency, pleaded that they were not obliged to notify their seller as he is a professional seller who is, therefore, presumed to be aware of the defect. The court rejected this argument, reminding us that even if a professional seller cannot invoke a notification’s tardiness, he nonetheless still has the right to be notified by the buyer in writing.

The court, therefore, reminds us that a buyer who wishes to avail himself of the legal warranty of quality must not neglect to notify his seller in writing, even if his seller was aware of the defects or, as a professional seller or manufacturer, is presumed to have been aware.