The legal assurance against latent defect is a legal protection granted to the buyer of a vehicle, whether it is new or used. In this case, the law provides that a latent defect may lead to the cancellation of the sale when the is returned or a reduction in the sales price.
According to Article 1707 of the Romanian Civil Code, the seller guarantees the buyer against any hidden flaw that make the goods sold unfit for the intended use or which reduces its use or value so that, if he had known them, the buyer would not have bought or would have paid a lower price.
- THE CONDITIONS OF LIABILITY FOR LATENT DEFECTS
In order to be able to engage the seller’s liability for latent defects, the buyer must prove (for example, through an expertise) that the following conditions are cumulatively accomplish:
- The good should to have a flaw. For example, the vehicle has faults in the electrical system;
- The flaw should be hidden. The flaw is hidden when, “at the date of delivery, it could not be discovered, without specialized assistance, by a prudent and diligent buyer” (art. 1707 (2) Romanian Civil Code). Therefore, the seller’s assurance obligation does not exist for apparent defects, which the buyer could have noticed himself. For example, it would be an apparent defects: the existence of a perforation of the windshield, lack of air conditioning, damaged tires, wing with different color paint. On the other hand, if the seller has informed the buyer of the existence of the defect, it can no longer be considered hidden, whatever its nature.
- The flaw must have existed at the time of handing over the good. According to art. 1707 (3) Romanian Civil Code, the seller’s assurance is due “if the flaw or its cause existed at the date of handing over the good”.
- The latent defects must be so serious as to make the vehicle unfit for use or to diminish its use so much that the buyer would not have bought it – or not at this price.
- THE EFFECTS OF THE SELLER’S LIABILITY FOR LATENT DEFECTS
If the conditions presented above are cumulatively fulfilled, the buyer, pursuant to art. 1710 of the Romanian Civil Code, may request:
- removal of defects by the seller or at his expense (car repair);
- the replacement of the good sold with an identical one, but without defects;
- the reduction of the price proportional to the reduction of the value of the good;
- the cancellation of the sale, situation in which the seller has the obligation to return the price, and the buyer has the obligation to return the good in its condition.
The action in resolution/cancellation of the sale for the latent defects, implies either the bad faith of the seller, or, in the case of the seller in good faith, the completion by the buyer of the prior procedure provided by art. 1709 C. civ. If the seller was in bad faith, the buyer will be entitled to claim damages.
- DISCLOSURE OF DEFECTS – The preliminary procedure of disclosure of latent defects, provided by art. 1709 of the Romanian Civil Code, in order to obtain the cancellation of the sale.
According to art. 1709 of the Romanian Civil Code, the buyer who discovered the latent defects is obliged to bring them to the notice of the seller within a reasonable time, according to the circumstances.
If the buyer is a professional and the good sold is a body mobile, the buyer shall bring latent defects to the seller’s notice within two working days.
Therefore, the legal text requires the buyer, prior to the formulation of the request having as object the cancellation of the sale, to follow the mandatory procedure provided by art. 1709 of the Romanian Civil Code, under the sanction of disqualifying from the right to request the cancellation of the sale.