The Seller’s Failure to Properly Perform a Repair: An Obligation of Result


March 10, 2017 Real Estate and Construction

Mtre Sabrina Saint-Louis, Lawyer

This post, published on Éditions Yvon Blais’ blog on latent defects on March 2, 2017 (FR), discusses the recent judgment in Gingras v. Duplessis (Full Text | Fiche Quantum), in which the sellers of an immovable were ordered to pay the buyers $28,441.17 due to a crack in the foundation.

In this case, the sellers had undertaken to repair a crack that had been detected during a pre-purchase inspection, which the sellers did. The buyers then expressed their satisfaction with the work performed by the seller by signing a document entitled Settlement Agreement.

However, in 2014, the buyers found that the sellers did not adequately repair the crack, which led to the institution of legal proceedings.

While the Court concluded that the poorly-repaired crack discovered in 2014 constituted a latent defect in terms of the legal warranty of quality, the sellers were condemned on the basis of the general rules of contractual liability. In this context, the buyers had only to demonstrate, by balance of probabilities, a causal event (i.e. the non-performance of a contractual obligation), a prejudice, and the causal link between the two.

According to the court, “in undertaking to repair the crack, the sellers took upon themselves an obligation of result, even of guarantee. They promised the plaintiffs a definite result and not simply that they would use the means at their disposal, act diligently, or do their best,” so that “once the absence of the result is proven, the debtor’s liability is presumed, and he may not relieve himself from his liability by proving the absence of a fault on his part” (our translation). 

Considering that the sellers failed to deliver the promised result, they were ordered to indemnify the buyers for the corrective work required for repairing the crack, in addition to being required to pay damages. Regarding the foregoing, it is interesting to note that the buyers’ proof of the seller’s knowledge of the problem for the purpose of claiming and obtaining damages was not relevant in this case, as section 1728 C.C.Q. only applies in matters of latent defects pursuant to the rules of the legal warranty of quality of section 1726 C.C.Q., and not in the context of the general regime of contractual liability of section 1458 C.C.Q.

Therefore, the seller who undertakes to perform a repair on the immovable to correct a defect for the buyer is required to do so properly, failing which, his contractual liability may be incurred

This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

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