Country:

Belgium

Court :

Court of appeal of Liege / Cour d'appel de Liege

Parties: SA Mondial auto vs Jourdain & consorts.

Date: 14 January 2000

Topics:

Notion of "functional" defect - latent defect regime.

Articles:

Article 1641 Civil Code (latent defect warranty)

Article 1648 (brief period)

Facts:

A person (Mr Jourdain) bought, on 25 March 1996, a used car whose milometer showed 90 000 kilometres. It appeared afterward that the true mileage was in fact at least l85 591 kilometres, according to an invoice given by a previous owner. The buyer used the car during one year and faced several mechanical problems during this period of time. He finally decided to bring a claim against his seller (SA Mondial auto) before the Commercial Court of Namur which sustained his claim. The seller appealed against this judgment.

Legal questions:

1) Qualification of the defect

2) Estimation of the "brief period" under the latent defect regime

Decision:

The Court of Appeal confirmed the judgment of the Commercial Court and awarded damages to the buyer.

1) The Court estimated that such an important difference in mileage (around 100 000 kilometres) "seriously tricked" the buyer on the use of the car, in particular regarding its longevity and the repairs costs, and concluded that this defect has to be termed as "functional" defect.

2) The court set the starting point of the "brief period" within which a claimant has to start proceedings at the time "when the buyer is convinced that the product is affected by a serious defect and discover it" according to the definition given by precedents. In this case the starting point was the time when the buyer obtained the invoice of a previous owner (6 March 1996) showing the real mileage. As the claim was served on the seller on 30 April 1997 the brief period amounted to 57 days, which is according the court short enough to be considered as "brief".

Comments:

This judgment is an example of the jurisprudential distinction between a structural and a functional defect used under the latent defect regime. Article 1641 of the Belgium Civil Code defines latent defect as " defects in the thing sold which render it unsuitable for the use for which it is intended, or which so diminish such use that the buyer would not have purchase it, or would have given only a lesser price for it, had he known of them". In this case, the Court refers to another definition coined by the Belgian Supreme Court namely a defect which "renders the thing unsuitable for the use for which the buyer has intended to, according to the knowledge of the seller, even if does not affect the product intrinsically".

Such a distinction is not explicitly mentioned other regimes of product liability but may be underlying.

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