APPARENT DEFECTS IN SALE REVISITED
John W. Durnford *
It was flattering to find that my recent article published in the
McGill Law Journal on apparent defects in the contract of sale 1 was
deemed worthy of comment by my colleague Professor Gow 2, who
brought to bear upon it the benefit of his many years in the study
of our sister system, the Scottish civil law and of its cousin, the
common law.
In my article, I criticized our Court of Appeal for maintaining,
in Bourget v. Martel 8, a redhibitory action where the purchaser had
not even inspected the automobile before purchasing, much less had
it examined by an expert. Professor Gow intimates that this indicates
that I look with favour on the old Germanic maxim (for which he
shows a healthy distaste): “He who does not open his eyes opens
his purse” –
nay, that I would go further and say: “He who does
not have his eyes opened by all relevant experts, opens his purse.”
Moreover, Professor Gow infers that when I set forth what I believed
to be the “only correct construction” of article 1522, what I was
really doing was using this construction as a vehicle of my own
social philosophy,* which he apparently seems to feel may be some-
what reactionary, to put it mildly, for he says I am “opposed to
anything which might smack of ‘welfare’ ,,.Sa
Having, in my innocence, attracted a comment of this nature,
does this mean that by writing my article I fell afoul of the old
* Associate Professor of Law, McGill University.
‘What
is an apparent defect in the contract of sale? (1963-64) 10 McGill
L.J. 60.
2 A comment on the warranty in sale against latent defects, (1963-64) 10 McGill
L.J. 243.
3 [1955] Q.B. 659.
3a The reader will have to judge for himself as to whether I am a reactionary,
but in judging he might also take into account some of my other writings, such
as those which relate to the effect of the dation-en-paiement clause in deeds of
hypothecary loans. See my chapter on “Mechanics’ Liens in Quebec” in Mechanics’
Liens in Canada by Maeklem and Bristom (1962) at page 272 and especially
p. 288 ff, and my article entitled “The Articles of the Civil Code on the privileges
of the builder” (1962) 8 McGill L.J. 176. See also my article on the position of the
tenant as regards certain repairs: “The lessee’s right to repair at the expense of
the lessor” (1960) 7 McGill L.J. 43. It will be noted that the Quebec Legislature
has since removed the abuses arising out of dation-en-paiement clauses by adding
articles 1040A if. C.C.
342
McGILL LAW JOURNAL
[Vol. 10
adage: “For fools rush in where angels fear to tread” ? 4 It is to be
hoped that this is not so. The industrious editor of the Canadian Bar
Review, Professor Jean Castel, once said that if you delayed writing
until you knew everything to perfection, you would produce nothing.
There could be added to that the thought that writing constitutes
part of the learning process for both the author and his reader,
and the sum total of knowledge is again increased by resulting
comment and discussion. It would therefore seem preferable to take
the plunge and write, rather than having to face another saying in
one’s old age: “I wasted time, and now doth time waste me.” 1
Let us now review the principal propositions set forth in my
article before going on to deal with Professor Gow’s comments. The
seller is bound to warrant the buyer against those latent defects of
the thing sold which meet the tests of article 1522 C.C. (e.g. as
render the thing sold unfit for the use for which it was intended),
but he “….
is not bound for defects which are apparent and which
the buyer might have known of himself” (article 1523 C.0.). The
task facing the courts has been to determine in the individual cases
that have been submitted to them whether the defects should be
labelled as latent or apparent, and this has necessitated the setting
down of standards by which to judge.
What tests are available and which have been applied in Quebec?
The next question is whether the tests are desirable; and if not,
can they be altered or abolished by a new interpretation of articles
1522 and 1523 or should these be amended?
The first test is whether the buyer has a duty to examine and
inspect the object he is purchasing. In other words, is the defect
to be ‘considered latent simply because the buyer did not notice it,
or will it be apparent if he could have discovered it by taking
reasonable precautions in carrying out a careful examination? Our
courts have constantly held [with the exception of the Court of
Appeal decision of Bourget v. Martei (cited supra) ] that there is
a duty on the buyer to examine and inspect the object before
buying it, and that the vendor will owe no warranty as regards
a defect which an alert buyer would have discovered.
The other test is the one that is the more open to question,
namely whether the buyer who is interested in buying something
concerning which he is not technically competent to judge its
condition
(e.g. a house or a car) will be obliged to engage an
expert to examine and inspect the thing for him. In other words,
4Alexander Pope, An Essay on Criticism.
5 Shakespeare, Richard II, Act V, Scene, line 49.
No. 4] APPARENT DEFECTS IN SALE REVISITED
343
if the object suffers from a defect which an expert in the field
would have discovered on an examination, will the defect be con-
sidered apparent even though the buyer would not have become
aware of it if he had conducted an examination on his own? This
test, like that relating to the duty to examine and inspect, has
been consistently applied by the Quebec courts to sales of buildings,
with the exception of new ones, but there has been a small degree
of wavering when it comes to motor vehicles.
As to the exception in favour of the purchaser of a new building
which is acquired from the contractor who built it, the courts have
held that the buyer is entitled to rely on the contractor. I suggested
in my article that this opinion is justified on the ‘basis that the
contractor is holding himself out as an expert and that in any
event he cannot plead non-responsibility for the defects because
such defence would rest on his own lack of skill. On the other hand,
I also suggested that while the buyer from a contractor would be
excused from hiring an expert, he would still be responsible for
defects which he could himself discover, as negligence on his part
would be no excuse, so that he would still have the duty to inspect.
It is when we come to motor vehicles that we discover dissenting
views on the duties of the buyer. Articles 1522 and 1523 C.C. do
not distinguish between moveables and immoveables, and the courts
having held it was necessary for the buyer to examine and inspect
a building and to engage an expert to do so in the case of ignorance
on his part, it is not surprising that the courts applied the same two
tests to the sale of motor vehicles, the outstanding exception being
the case of Bourget v. Martel,6 where the Court of Appeal put aside
not only the buyer’s duty to engage *an expert but also his duty to
examine and inspect the object before buying. It is because that
particular decision went so far against both the letter and the
philosophy of the other judgments, which had seemed reasonable
enough to me, that I attacked it for being unfounded.
Thus it was my conclusion in the article that any defect that
would be discovered by an alert and wide awake buyer or expert
engaged by him who conducted a careful and serious examination
would be considered an apparent one for which the seller would
not be responsible, unless the buyer protected himself by obtaining
from the seller an express guarantee, the effect of which being to
make the seller responsible for apparent as well as latent defects.
The reader is reminded that my article did not pretend to cover
in depth the subject of apparent and latent defects as regards all
6 [1955] Q.B. 659.
McGILL LAW JOURNAL
[Vol. 10
types of objects. At page 68 it was pointed out that the article would
concentrate on buildings and used automobiles, these being the
subject matter of most of the reported judgments. There is no
reason to suggest, however, that the principles expounded should
not be applied to analogous cases. In fact, this would in many
instances be quite simple. For example, we have seen that the courts
have not required the engaging of experts where a new building
is bought. Presumably this could be said of any new object when
the same is bought from the person who has made it, and for the
same reasons: the purchaser is entitled to rely on the manufacturer
as the latter is holding himself out as an expert and cannot plead
non-responsibility for defects as the same would have resulted from
his own lack of skill (subject to the purchaser not being able to
pursue the contractor for blatantly apparent defects as he would
then in effect be asking to be excused for his own negligence).
Then there is the express guarantee, which, it will be recalled,
renders the vendor responsible for apparent as well as latent defects.
One receives the impression, as an ordinary consumer in the North
American economy, that the great majority of automobiles, machines
and appliances come with the manufacturer’s express guarantee.
In fact, some automobile manufacturers advertise that they guaran-
tee some components of their products for 50,000 miles or five
years.7
When we take into consideration the rules in favour of the buyer
of a new object who has bought it from its manufacturer and the
situation where there is an express guarantee, we see substantial
areas where the purchaser’s obligations to examine and inspect and
to engage an expert are substantially lessened.
As to the remaining areas, where it has been held to be necessary
for the buyer to examine and inspect the object and to engage an
expert to do so where he is ignorant, my article pointed out that
the buyer is not expected to do the impossible. Thus where the
Court of Appeal held that a buyer of crated tomatoes had a duty
to examine them, this did not mean opening every crate and looking
over all its contents. It meant simply tearing the paper wrappings
off the tomatoes through the openings between the slats of every
tenth box (page 63 of my article). Moreover, the buyer is not obliged
to use special scientific methods or research, such as subjecting
foodstuffs to chemical analysis, or cows to tests, or other out of the
71f the manufacturer fails to carry out the terms of the guarantee, there is
always the possibility for the purchaser to apply to the courts and ask that the
same be cancelled, thus causing the legal warranty to apply (Touchatto V.
Pizzagafli [1938] S.C.R. 433.)
No. 4]
APPARENT DEFECTS IN SALE REVISITED
345
ordinary measures such as taking up the floor of a house to see if
the supporting beams are rotten, or taking down an engine (pages
65 and 66). Also, a defect is latent if it can only be discovered on
putting the machine into operation (page 66). Then if the circum-
stances render it impractical for the purchaser to examine the goods
until after delivery, all the defects are deemed to be latent for him
(page 66).
Then there is the situation where the vendor goes beyond the
bounds of a reasonable sales talk and his representations are so
enthusiastic as to amount to fraud. This is what occurred in Lortie
v. Bouchard, 8 where the Supreme Court annulled the sale of a bus
because the vehicle was not at all what it had been represented
to be. The vendor had declared that it was a 1933 Reo, that the
body had been renewed two years previously, that the mechanism
was in excellent condition, that the brakes, differential and tires
were new, and that the motor had been rebored (“perc”) once
and could be used for 10,000 to 15,000 miles. It turned out that
the bus was, if anything, a 1928 Gotfredson, but in reality it was
a mixture of old parts from various sources. The body, instead
of being two years old, was of an ancient Chevrolet which had
been retired from use on account of age, it leaked in wet weather,
it vibrated abnormally as soon as it reached fifteen miles per hour,
and the chassis was broken and threatened to collapse under the
weight of the passengers. Various other parts were of General
Motors and Reo origin. The clutch had to be replaced and the
transmission required several repairs by reason of wear. The brakes
leaked and hardly worked and the tires were practically worn out.
The motor was in an advanced state of decay. It burnt quantities
of oil and an intolerable smoke got into the body from the exhaust
pipe, and so on and so forth.
To an expert, such as a mechanic, these defects could hardly
have been more apparent, and the purchaser had not engaged an
expert. But the sale was set aside nonetheless. This was done, not
on the basis of latent defects, but of fraud. In the words of Mr.
Justice Taschereau (at page 517) : “II ne s’agit pas dans la pr~sente
cause d’une demande en annulation pour d6fauts cach6s, mais bien
d’une demande en annulation pour fausses repr~sentations.” 9 Here,
then, is another protection for the buyer who has “been taken for
a ride”.
8 [1952] 1 S.C.R. 508.
9 See Baudry-Lacantinerie et Saignat, Traitg de Droit Civil, third edition, XIX
(1908), page 427.
McGILL LAW JOURNAL
[Vol. 10
Moreover, it is well established in Quebec law that where the
vendor excludes warranty against latent defects, such exclusion will
be null as fraudulent if he knew of their existence, or even if he
was presumed to, such presumption lying in the cases of the
manufacturer and of the specialized vendor. 10
What, then, is all the fuss about? Apparently it is not as regards
immoveable property. Professor Gow seems content on this score,
but feels that corporeal moveables should be treated differently.
As a preliminary point, I would disagree with his statement
that: “To the non-lawyer, article 1522 states its policy quite clearly,
namely that the seller is obliged to supply a thing which by and
large is worth the price the buyer has paid or promised to pay.” 11
The Civil Code must be read as a whole, and article 1012 states
that “Persons of the age of majority are not entitled to relief from
their contracts for cause of lesion only.” Thus if I am fool enough
to pay $10,000 for a ten year old Chevrolet, I will have no redhibitory
recourse against the seller under article 1522 C.C. even if the car
is worth only $200 (unless it suffers from latent defects), and
I will only be able to have the contract annulled if there has been
fraud on the part of the vendor.
When Professor Gow refers to the disparity between the non-
lawyer’s reading of article 1522 (which for him would mean “….
that
the seller is obliged to supply a thing which by and large is worth
the price the buyer has paid… “), and “….
its construction by at
least some lawyers in Quebec”, 12 whom does he mean by “some
lawyers” ? Am I right in suspecting that these “some lawyers”
consist of the judges who have rendered the vast majority of the
judgments interpreting this provision of the Code and whose judg-
ments formed the basis of my article?
Another preliminary point: Professor Gow reproaches me for
explaining that the word “latent” means “hidden”, on the basis that
the latter is more suggestive of positive concealment. 3 I suggest
with respect that this part of the discussion is irrelevant, for article
2615 C.C. directs that if there be a difference between the English
and French texts, “….
that version shall prevail which is most
consistent with the provisions of the existing laws on which the
article is founded.” The French version speaks of “cach6”, and
the codifiers indicated as one of their sources of article 1523
if.;
Faribault, Traitg de Droit Civil du Quebec, XI (1961) pages 289 and 294 if.
10 Mignault, Le Droit Civil Canadien, VII (1906), pages 109 and 111
11 Op. cit. page 243.
12 Ibid.
13 Ibid. page 244.
No. 4] APPARENT DEFECTS IN SALE REVISITED
347
(which is intimately tied to article 1522) paragraph 207 of Pothier’s
TraitM du contrat de Vente
(Bugnet edition) which reads as
follows:
On ne repute pas vices redhibitoires ceux qui, quoique consid6rables, peu-
vent facilement s’apercevoir. Par exemple, ce n’est pas un vice redhibitoire
pour un cheval, s’il est boiteux, s’il est aveugle, etc.; ni pour une maison, si
elle tombe en ruine; parce que ces vices pouvant facilement se connaitre,
l’acheteur est pr~sum6 en avoir eu connaissance, et avoir bien voulu acheter
la chose avee ce vice, et par consequent n’avoir souffert aueun tort, nam
volenti non fit injuria. Et quand mime il ne l’aurait pas connu, il ne serait
pas encore recevable A se plaindre du tort qu’il souffre de ce contrat; car
c’est par sa faute qu’il le souffre: il ne tenait qu’h lui d’examiner la’chose
avant que de l’acheter, ou de la faire examiner par quelqu’un, s’il ne s’y
connaissait pas lui-mgme. Or, un tort qu’une personne souffre par sa faute,
n’est pas un tort auquel les lois doivent subvenir, les lois n’6tant pas faites
pour entretenir la negligence: Damnum, quod quis culpa su. non sentit,
non videtur sentire.
From this we see that these provisions of our Code were based
by the codifiers on the principles concerning the duty of the buyer
to examine and inspect the object before buying and to retain an
expert in the event of his ignorance. I submit that this refutes
the suggestion that “the seller is obliged to supply a thing which
by and large is worth the price the buyer has paid…”
A further preliminary point: Professor Gow makes a rather
biting reference to attempts at analysis of the meaning of a code
article through the interpretation of its key words (such as the
word “latent!’). He says “The truth is that there can be no solution
in terms of verbal jugglery. As- Humpty Dumpty said to Alice,
‘When I use a word it means just what I choose it to mean, neither
more nor less…’ The question is, which is to be master…” 14
My answer to this is that it is the Legislature that is the master,
but that once it has spoken, while there may be a certain latitude
in the interpretation of the words that it has used, in the last resort
these words are our masters until the Legislature sees fit to speak
again, and in the meantime it is our task to interpret them as best
as can be done on. the basis of their own meanings and in keeping
with the law as a whole.
Professor Gow’s principal complaints seem to be, on the one
hand, that we are still living under a nineteenth century social
philosophy from which the common law has progressed, but which
neither the civil law of Quebec nor myself has shaken off, and on the
other, that we have forsaken some ancient Roman law principles.
14 0p cit. p. 244.
McGILL LAW JOURNAL
[Vol. 10
As to the Roman law, while it constitutes the origin of the civil
law system, I think it can safely be said that our codifiers generally
followed Pothier’s adaptation of the civil law more than the original
Roman law, and we have seen above the passage from Pothier
that lies behind the present Code articles.
As to the fact that Quebec civil law thinking on the subject of
defects, unlike the common law, has not moved since the nineteenth
century, does this alone mean that the common law has improved
and the civil law has fallen behind the times? Let us look at the
modern law of France. This has a double advantage in that France
is a modern and civilized country, and the wording of articles 1641
and 1642 C.N. is close to that of our articles 1522 and 1523.
It is worthy of note that the view was at one time held in France
that the buyer of a second hand car was entitled to no warranty
against defects at all. 15 It was felt that the buyer had to expect
from a used object less in durability and power, so that the buyer
was necessarily buying at his own risk. Furthermore, it was also
sometimes argued that the defect was not hidden as the vendor
did not disguise the second hand nature of the article. On top of
this, a rather derogatory view was taken of the second hand pur-
chaser as being rather slyly on the look-out for speculative bargains.
Then there was the idea that the economy would be adversely
affected if second hand buyers were favoured as production would
be slowed down. Thus used cars were regarded as being sold in
the condition in which they were in save in those cases where an
express warranty had been stipulated.
This viewpoint has since been put aside.16 Articles 1641 et seq. C.N.
(which correspond to our articles 1522 et seq. C.C.) make no distinc-
tion between new and used objects. It also came to be realized that the
second hand buyer was not necessarily an unsavoury character who
was speculating, but often a person of modest means who could
not afford a new article. Furthermore, second hand purchases ceased
to be considered as detrimental to the economy –
to the contrary,
they assisted in the circulation of goods, and by relieving owners
of their present cars made it possible for them to acquire new ones.
Moreover, the fact of having been used did not change the very
nature of the thing nor did it in itself constitute a defect, but simply
15 Henri Roland, Observations sur la vente des vihicules d’occasion, [1959]
Recueil Dalloz, Chronique, 161 at 167 ff.; [1952] 1 Gazette du Palais (table),
page 163, no. 14.
16 Henri Roland, op. cit., page 168; Jean Carbonnier (1955), 53 Rev. trim. dr.
civ. 128. See also Curetti v. Boyer [1953] Recueil Dalloz, 745 (Tribunal Civil de
Draguignan) and the accompanying case note by J. Hdmard.
No. 4] APPARENT DEFECTS IN SALE REVISITED
349
put it into a different class. A defect really involved a failure to
function. Thus it is now well established in France that the vendors
of second hand objects are liable in warranty against the latent
defects in the think sold. 17
Now as to the French view of the requirements that the buyer
examine and inspect the thing and his obligation to engage an
expert where he is ignorant, the authorities are firm on the first
point; less firm, we shall see, on the second.
On the need for the buyer to examine and inspect:
Mazeaud’ 8 : “…le vice est apparent lorsqu’un homme de diligence
. des vrifications 6lmentaires,
moyenne l’aurait d~couvert en proc~dant
ou ‘un acheteur s6rieux’ en proc6dant h un ‘examen attentif’…”
Aubry et Rau 19: “Les ddfauts qui se rencontrent dans la chose vendue
n’engagent la responsabilit6 du vendeur qu’autant qu’ils sont caches.
“Les vices apparents, c’est-h-dire ceux dont l’acheteur aurait pu se con-
vaincre par une v~rification exacte de la chose vendue, ne donnent lieu,
sauf convention contraire, soit expresse, soit tacite, i aucun recours contre
le vendeur, lors m6me que cette v~rification aurait pr~sent6 plus ou moins
de difficult6 au moment de la vente.”
Guillouard20 : “L’article 1642, d~veloppant l’id~e dQjA exprizne dans
l’article 1644 par ces mots ‘d6fauts caches’, porte que le vendeur n’est pas
tenu ‘des vices apparents et dont l’acheteur a pu se convaincre lui-nigme’.
I1 n’est done pas n~cessaire que le vendeur prouve que l’acheteur a connu
ces vices; il suffit qu’il ait pu les connaitre, par l’examen de la chose vendue,
et s’fl a W n6gligent, s’il a achet6 la chose sans l’examiner, il supportera
la peine de sa n6gligence, et ne pourra reclamer h propos de vices qu’il
ddpendait de lui de connaltre.
“Bien plus, il importe peu que la d~couverte de ces ddfauts ffit plus ou
moins facile: du moment oi elle 6tait possible, m6me avec une certaine diffi-
td vigilant. S’il achbte la
cult6, l’acheteur doit s’imputer de n’avoir pas
chose aprbs un examen hAtif et superficiel, il court le risque de se tromper,
et la loi ne vient pas en aide A ceux qui ne prennent pas le soin de veiller
A leurs int6rbts.”
Baudry-Lacantinerie et Saignat 2i: “Le d~faut doit itre consid~r6 comme
cach6 toutes les fois que l’acheteur n’a pu le d~couvrir par un examen
il doit au contraire 6tre considdr6 comme
attentif de la chose vendue;
apparent toutes les fois qu’au moyen de l’examen attentif qu’un homme
s6rieux apporte aux marches qu’il traite, l’acheteur a pu les remarquer.
Un d6faut n’est pas cach6 par cela seul que l’acheteur ne l’a point vu; si
celui-ci n’a fait de la chose qu’un examen superficiel, il ne peut se prdvaloir
17 See, for example, Mauduit v. Boulleveau [1954] Recueil Dalloz, 697 (Cour
de Cassation); Curetti v. Boyer, [1953J Recueil Da~loz, 745 (Tribunal Civil de
Draguignan).
18 Henri, LUon et Jean Mazeaud, Legons de Droit Civil, III (1960), page 835.
19 Droit Civil Frangais, sixth edition by Paul Esmein, V (1946), pages 81-82.
20 Traitis de la Vente et de I’Echange, second edition, I (1890), page 448.
21 Trait de Droit Civil, third edition, XIX (1908), pages 425-426.
350
McGILL LAW JOURNAL
[Vol. 10
d’un d~faut qu’il d~pendait de lui de remarquer. L’art. 1642 dit que le vice
est apparent si l’acheteur a pi s’en convaincre; done quand le vendeur
prouve qu’il 6tait possible A l’acheteur, au moment de la vente, de d~couvrir
le vice, ce vice n’est pas cach6.
“Peu importe mgme que la dcouverte du vice offrit quelques difficult~s;
la simple possibilit6 de le d6couvrir suffit pour qu’il ne soit point cach6.”
Laurent 22: “Quand les d~fauts sont-ils apparents? L’article 1642 donne,
sinon une d~finition, du moins une explication des d6fauts apparents en
disant que ce sont ceux dont l’acheteur a pu se convaincre lui-mgme; il n’est
done pas ncessaire qu’ils frappent les regards; l’acheteur doit examiner
la chose et la v~rifier, et s’il la v~rifie, il s’apercevra des d~fauts qui la
vicient. Mais, s’il ne fait pas cette v6rification, pourra-t-il pr6tendre qu’il
ne connaissait pas le vice? Non; on lui r~pondrait, avec l’article 1642, qu’il
a pu s’en convaincre lui-m~me, et que s’il ne l’a pas fait, il doit supporter
les cons6quences de sa negligence.”
Roquier v. BissireiX 23: “Le vice apparent doit s’entendre non seulement
de celui qui saute aux yeux ou apparait au moindre examen superficiel,
mais aussi du d6faut qu’un homme de diligence et d’exp~rience moyenne
est capable de d-couvrir en proc~dant A des verifications faciles.”
Juris-Classeur Civil24: “S’agit-il d’un d~faut qui, bien que non super-
ficiel, peut 6tre d~cel6 par un examen quelque peu s6rieux, que l’acheteur
pouvait faire lui-m~me, ou faire effectuer par une autre personne, le vice
est apparent.”
Gazette du Palais 25: “Notion do vices cachis. –
S’agissant de ]a vente
d’une couveuse 6lectrique d’occasion, les juges du fond ont justifi6 leur
d6cision rejetant l’action redhibitoire en constatant que les thermostats
prdsentaient une usure engendr6e ‘par un usage normal’ et que l’isolant
du ciblage int6rieur devrait 6tre remplac6, que ces imperfections ‘n’empc-
chent pas un fonctionnement de l’appareil’, trfs proche de la normale, qu’il
peut d’ailleurs y 6tre rem6di6 par des modifications mineures et que l’ache-
teur avait la possibilit6 de s’en convaincre par un essai personnel ad~quat’.
Cass. civ. 29 imai 1963, Gaz. Pal. 1963.2.363.”
Meunier-Collin v. Grange26: “Attendu que le vice apparent n’est pas
seulement celui qui est ostensible et que r~v~le un examen superficiel mais
celui qu’un homme de diligence moyenne aurait d~couvert en proc~dant h des
vsrifications 6lmentaires.”
Demoiselle do Yrigoyen v. Cie des Assurances Gdndrales 27:
“On ne peut consid~rer comme caches que les vices dont un acheteur
Ferrero v. Boyer 2 8 :
diligent et attentif n’aurait pu se rendre compte.”
22 Principes do Droit Civil, fourth edition, XXIV (1887), page 278.
23 [1950] La semaine Juridique (Juris-Classeur P6riodique)
(Somm.),
IV,
page 128 (Bordeaux); also reported at [1950] Recueil Dalloz, 24.
24 Annexes, IV, Vices Rddhibitoires, no. 24, page 7 (1954).
25[1963] Gazette du Palais, second semester, page 256, number 51.
26 [1957] Recueil Dalloz, 47 (Tribunal Civil de la Seine); also reported at
[1957] Recueil Sirey, 120.
27 [1929] Recueil Dalloz, second part, 81 (Bordeaux).
28 [1950] Recueil Dalloz, 556 (Tribunal Civil de Nimes).
No. 4] APPARENT DEFECTS IN SALE REVISITED
351
“LE TRIBUNAL; – Attendu qu’il semble bien r~sulter du rapport de
1expert Coulet, que Ferrero a achet6 pour un prix de 300 000 fr. une
voiture qui 6tait bien loin de valoir cette somme; qu’on ne sache que,
s’agissant d’une voiture automobile, un prix mgme excessif soit un motif
d’annulation de la vente; – Attendu sans doute que l’acheteur est fond6
b demander l’annulation de la vente lorsque la chose qui fait l’objet de
l’achat rec~le un vice cach6; que tel n’est pas le cas en l’esp~ce; que
Ferrero a eu toutes facilit6s pour se rendre compte de l’6tat d’usure et des
imperfections que pr~sentait le vWhicule dont il entendait faire l’achat; que,
dans ces conditions, on n’apergoit pas la base juridique sur laquelle Ferrero
fonderait une demande en nullit6 de vente;
Par ces motifs, d~boute Ferrero de ses demandes tendant h l’annulation
de la vente portant sur l’automobile litigieuse;”
To this we may add the following extract from the note which
follows the judgment:
“L’art. 1642 c. civ. dispose que le vendeur n’est pas tenu des vices
apparents et dont l’acheteur a pu se convaincre lui-mgme. La jurisprudence
donne aux mots ‘a pu’ le sens de ‘a eu la possibilit6’. I1 n’est pas n~cessaire
que l’acheteur ait connu effectivement ces vices; il suffit qu’il ait u les
connaltre.”
In SociWt4 d’Equipement industriel et commercial v. Goldnadel,29
the Paris Court of Appeal was faced with the sale of a second hand
car of which the motor suffered a major breakdown after travelling
400 kilometres on a trip that was started the day after the sale,
which breakdown was caused by a blockage of the engine oil system
by dirt. The expert who examined the motor after the breakdown
indicated that it was impossible for the buyer to be aware of the
hidden defects in the motor which could only have been revealed
by having it taken down. The Court overruled the expert’s finding,
however. It held that the cause of the breakdown was lack of
lubrication caused by a blockage and that this was not a latent
defect. The buyer’s director “… aurait dfi, faisant l’acquisition
d’une voiture d’un prix 6lev, proc~der A une vrification plus poussde
du moteur…” Article 1641 (being the equivalent of our article
. ne peut s’appliquer qu’A des d~fauts d’une particuli~re
1522) “…
gravit6, 4chappant A tout examen attentif au moment de l’achat…”
The buyer’s representative “…. aurait pu s’apercevoir de la d~fec-
tuositd que prdsentait cette voiture en ce qui concerne le graissage
du moteur; qu’il aurait pu en effet se rendre compte au cours des
essais… que cette voiture fumait anormalement.”
The foregoing would seem to establish that the French authorities
interpret the Code articles on the warranty against latent defects
as requiring the purchaser to examine and inspect the thing before
buying.
20 [1964] Recueil Dalloz, 253.
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Let us now look at the French authorities on the question of
whether the buyer should consult an expert before buying. We shall
first list those in favour of this requirement.
French authorities holding that the buyer should engage an
expert:
Planiol et Ripert: 30
“I1 arrivera fr~quemment que le d6faut de la chose apparaltra manifeste-
ment aux yeux de I’acheteur, sans que celui-ci puisse ignorer que ce d6faut
constitue bien un vice dont l’existence rend la chose impropre b l’usage
projet6. Le vice est alors apparent sans aucune difficult6. Il en serait ainsi
mime si le vice est tel que, 4chappant A un acheteur inexp6riment6, i
apparaltrait imm~diatement aux yeux d’une personne- plus comp~tente;
l’acheteur qui se sait inhabile doit faire appel au secours des gens comp&
tents et il est en faute d’avoir trop pr6sum6 de ses capacit~s. Ainsi l’acqu6-
reur d’un immeuble perd le droit d’invoquer la garantie s’il n’a pas apergu
un vice qu’un architecte aurait imm6diatement dfcouvert; le vice est, dans
ce cas, apparent.”
Baudry-Lacantinerie et Saignat: s1
“Nous pensons mime que l’inhabiletW et l’inexp6rience de l’acheteur ne
permettent pas de consid6rer comme cach6 quant i lui un d6faut qu’aurait
apercu une personne plus competente; celui qui n’a pas les connaissances
n~cessaires pour appr6cier la chose qu’il veut acheter doit demander le
concours de gens capables de le faire. Ainsi celui qui veut acheter une
maison doit, s’il ne connalt pas lui-m~me les constructions, recourir aux
conseils d’un architecte; mais il ne pourra pas se prdvaloir de son inhabilet6,
de son ignorance pour faire r6silier la vente A raison de d6fauts qu’il n’a
pas vus, mais que rien ne cachait. C’est faire de la chose un examen super-
ficiel que de le faire seul quand on n’en est pas capable.”
Ferrero v. Boyer.3 2 The following remark appears in the note
following the judgment in this case which concerned the sale of a
second hand automobile.
“L’inhabiletW et l’inexp~rience de 1’acheteur ne permettent pas de consi-
ddrer comme cach6 quant & lui, un ddfaut qu’aurait apergu une personne
plus comptente.”
Judgment of Tribunal Civil de Metz: 33
“Les vices doivent 6tre cachds; il y a des vices caches quand leur existence
ne peut 6tre rdv~l~e que par des recherches appropri~es on ne peut 6tre
dfcouverte que par un expert proc~dant A des vWrifications minutieuses; les
qualit~s intellectuelles de l’acqu6reur n’ont pas h 6tre prises en consid6ration
en la mati~re.” – Trib. civ. Metz, 26 Oct. 1956, Rev. As. Lorr. 1957, 329.
30 Second edition by Joseph Hamel, X (1956), pages 144-145.
3 1 Op. cit., page 426.
32 [1950] Recueil Dalloz, 556, (Tribunal Civil de Nimes).
33Summarized in Gazette du Palais, R~pertoire Universel de ]a Jurisprudence
Frangaise (1956-60), no. 407, page 932.
No. 4] APPARENT DEFECTS IN SALE REVISITED
353
Demoiselle de Yrigoyen v. Cie des Assurances G~nirales. This
case involved the purchase of a building that was infested with
termites. The Court held:
“… attendu, en l’esp~ce, que s’agissant d’un immeuble de valeur situd A
Bordeaux et destin6 i
l’inexp~rience ou l’incomp6tence de
l’acheteur ne paraissent pas pouvoir 6tre invoqu~es, parce qu’en pareille
mati~re il est de prudence 6lmentaire de se faire assister d’un architecte.”
The following is an extract from a case note by Pierre Voirin
l’habitation,
that accompanied the judgment: 35
“Au premier abord, l’arr6t rapport6 semble imposer des conditions bien
s6vares. II faudrait qu’il n’existit aucun vice ‘dont un acheteur diligent et
attentif aurait pu se rendre compte’ et dont ‘une visite attentive des lieux
par un architecte efit d~cel6 l’existence’. Pourrait-il, au regard d’une telle
conception, se rencontrer une seule application du vice cache? Ainsi com-
prise, la notion d’apparence se dilue, puisque l’indication donnde par la
situation de fait, devant itre corroborde par une expertise, perd sa spon-
tan6it6. Enfin on pourrait opposer la jurisprudence ant6rieure qui se borne
A exclure la garantie lorsqu’il existe un vice que rdv~le ‘un examen super-
ficiel’, sans qu’il soit besoin de recourir A une expertise. A la r6flexion
pourtant, l’arr6t de la cour de Bordeaux, loin de faire dissidence, s’encadre
dans les precedents
judiciaires dont l’ensemble forme une construction
homog~ne que soutiennent les deux 6l6ments essentiels de la notion d’ap-
parence.”
Meunier-Collin v. Grange 36:
“1… Attendu qu’avant de passer convention, un sentiment d’6lmentaire
prudence devait lui commander de proc6der A un examen attentif de la
voiture et d’effectuer au besoin les essais n~cessaires avec l’assistance d’un
homme de l’art s’il jugeait ses propres connaissances insuffisantes; …
Attendu que le vice apparent n’est pas seulement celui qui est ostensible
et que r4v~le un examen superficiel mais celui qu’un homme de diligence
moyenne aurait d~couvert en proc~dant h des vWrifications 616mentai-
res; –
See also R. Demogue: “Qu’est-ce qu’un vice cach6 ?” 7
Soci&t d’Equipement industriel et commercial v. Goldnadel.8 In
this decision of the Paris Court of Appeal, which we have already
seen, it is at least implied that the purchaser should have retained
the assistance of an expert.
…”
34 [1929] Recueil Dailoz, second part, page 84 (Bordeaux).
85It is interesting to note that in 1954 the Cour de Cassation held that
infestation of a building by termites constituted a latent defect, but it was
pointed out that in the circumstances of that instance the defect would have
been hard to discover even for an architect or a contractor. [1954] Recueil
Dalloz, 417.
36 [1957] Recueil Sirey, 120 (Tribunal Civil de la Seine). Also reported at
[1957] Recueil Dalloz, 47.
37 (1907) 6 Rev. Trim. dr. civ. 111.
38 Supra.
354
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The following French authorities are of the view that the buyer
need not engage an expert:
Mazeaud 3 9:
“… le type de comparaison b. l’gard duquel on se demandera s’il aurait
ou non d~couvert le vice, c’est une personne disposant des m9mes connais-
‘acheteur. En consequence, si l’acheteur n’a aucune
sances techniques que
connaissance technique quant h la chose achetfe, le vice est cach6 lorsque
seul un technicien dtait capable de la d~couvrir; la jurisprudence l’a souvent
affirm6 A propos de la vente des v6hicules automobiles.”
C… v. G…40 This involved the sale of a second hand automobile.
The Court held:
“…. il n’y a pas vice apparent, mais vices cachds, si l’expert commis indique
formellement qu’il fallait 6tre idoine en la mati~re pour d~celer les vices
de la voiture.”
Soci~tg Ggn~rale des Industries Economiques v. SocitdW Parisienne
des Biscuits Millez.41 The following is an extract from the headnote:
“Les vices d’un moteur h gaz, qui a 6t6 I’objet d’une vente, peuvent atre
consid~r~s comme non apparents lorsque l’acheteur 6tait, suivant les affir-
mations de l’expert, incapable de s’en rendre compte par suite de son
ignorance en mati~re de constructions m~caniques et de moteurs it gaz (c.
civ. 1641, 1642) ;.-..”
The accompanying case note states that:
“I1 avait d6jh t4 jug6, dans le m6me sens, qu’un vice doit 6tre consid~r6
comme cach6 s’il n’est apparent que pour des personnes jouissant de connais-
sances spiciales.”
Roquier v. Bissireix.42 The Court held that:
“… le vice qui ne peut 6tre d~couvert qu’en d6montant le moteur ou en se
couchant sous la voiture constitue un vice cach6, qui ne peut 6tre ddcel6
normalement que par un m~canicien professionnel.”
Jean Hdmard, in a case note accompanying the judgment of the
Cour de Cassation in Etablissements Saelen – Loff v. Sicoit (relating
to the sale of a second hand tractor) :43
“. il 6tait hors de doute qu’il s’agissait bien d’un vice cach6, le rapport
6tablissant que le groupe cylindre prdsentait des cassures et des traces de
soudure 6lectrique dont l’acqudreur ne pouvait s’apercevoir sans faire pro-
ceder au d~montage du moteur par un homme de l’art…
39 Op. cit., pages 834-835.
40 Tribunal civil de Lille, summarized in [1957] Gazette du Palais, second
semester, number 52, page 279.
41 [1908] Dalloz, 148 (Cour de Cassation).
42 [1950] La semaine Juridique (Juris-Classeur P6riodique), (Somm.) IV, page
128 (Bordeaux). Also reported at [1950] Revueil Dalloz, 24.
43 [1962] Recueil Dalloz, 46 at 47.
NKo. 4]
APPARENT DEFECTS IN SALE REVISITED
355
This case can only be considered in the light of the fact, however,
that the vendor had made declarations as to the good condition of
the tractor.
Case note, accompanying the judgment of the Cour de Cassation
in Chaud v. Cornen 44 (relating to the sale of a second hand tractor)
(extract):
“… ds lors qu’il y a obligation de d~monter un appareil, un moteur, pour
ddceler un vice dont ii est atteint, ou que sa d~couverte exige l’intervention
d’un homme de l’art, la jurisprudence consid~re qu’il y a vice cach6.”
It should be noted, however, that an express guarantee was present
in this case.
Reiss v. veuve Souyris (a judgment of the Cour de Cassation
relating to the sale of a second hand tractor) .45 The court held:
“… pour se rendre compte du mauvais 6tat des organes, il aurait fallu
d6monter partiellement le tracteur et que, seul, un homme de l’art aurait
pu proceder b de telles investigations.”
Filiol v. Chuzel.46 (A judgment of the Cour de Cassation relating
to the sale of oak wood to be used for flooring which contained larvae
which caused it to be worm eaten after the delivery; the only evidence
of the presence of the larvae were “piqfires” (tiny holes) on the
surface; the buyer was a dealer in such products.) The Court upheld
the findings of the experts that the defect was hidden because:
“…. pour reconnaltre la gravit6 de ce vice, i faut des connaissances scien-
tifiques, qu’il serait peut-6tre exag~r6 de vouloir exiger d’un simple pra-
ticien.”
In the case of Soc. Rouy et Cons. Rouy v. Delente,47 the Cour
de Cassation subjected an ordinary buyer to different treatment
from that meted out to an expert buyer, from which it may perhaps
be inferred that the ordinary buyer need not engage an expert.
Delente, a farmer, sold a used tractor to the Rouy brothers, “gara-
gistes”, who resold it to Dabert. In a first judgment, Dabert’s
redhibitory action was maintained by the Court of Appeal and the
Cour de Cassation rejected the appeal against this judgment. On
the other hand, the Cour de Cassation dismissed the action of the
Rouy brothers against Delente for the reason that as experts in
agricultural equipment they could not have overlooked the defects,
which for them were not latent. Thus, defects that were deemed
apparent to the professional buyers, had been considered hidden
44 [1957] Recueil Sirey, 6.
45 [1952] Bulletin civil de la Cour de Cassation, III, no. 390, p. 302.
46 [1907] Receuil Sirey, first part, 438.
47 [1963] Recueil Dalloz, 114.
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for the farmer, from which it might be concluded that the view of
the Court was that an ordinary buyer need not consult an expert.
Juris-Classeur Civil – Annexes: s
“S’agit-il… d’un vice qui, pour A-tre d6celM, exige des connaissances scien-
tifiques particuli~res, que mgme un professionnel ne possbde g4n~ralement
pas, par exemple, le recours it des proc~d4s m~caniques ou chimiques, le
vice sera le plus souvent tenu pour cach6.”
The reader is also referred to the case note by J. H6mard accom-
panying the Judgment of the Tribunal civil de Draguignan in Curetti
v. Boyer 49 and the discussion in the Juris-Classeur Civil under Vente,
garantie des vices cachis.,0
It must be acknowledged that the proposition that a buyer must
engage an expert where he is ignorant has not been unanimously
adopted in France. However, the negative never seems to have been
squarely put forward by the courts, and what is really significant,
there is no trend of change such as that shown by Professor Gow
to have existed in the Common Law. It must also be borne in
mind that not all the authorities in favour of relieving the buyer
of retaining an expert’s services are as strong as they may at
first appear: the case involving a gasoline engine may well have
concerned a new engine purchased from the manufacturer, and
some of the cases involved express guarantees, in both of which
situations Quebec courts would probably not require an expert. In
other cases, no mere examination of experts would have disclosed
the defect –
the thing would have had to be taken apart or subjected
to special tests for the defects to be discovered – Quebec law would
not require this either. In any event, even if one were to argue that
the effect of the French authorities is not to require the buyer to
use an expert, there remains the consistently held view that the
buyer must be alert and examine and inspect the thing carefully.
This is a far cry from the Quebec Court of Appeal decision in
Bourget v. Martel (cited supra) where the sale was set aside because
of defects even though the purchaser had not examined the car
before the purchase.
The reader may wonder why I have gone into the French
authorities to such an extent. After all, as regards my having
criticized the Court of Appeal judgment in Bourget v. Martel (cited
supra) on the ground that there is strong authority, both doctrinal
and jurisprudential, to the contrary, Professor Gow said: “He may
48 IV, Vices R~dhibitoires, no. 25.
49 [1953] Recueil Dalloz, 745 at 746.
5O No. 63, arts. 1641 ff. C.C.
No. 4] APPARENT DEFECTS IN SALE REVISITED
357
well be right. Whether he is or not is not the concern of this comment.
Its concern is to suggest that if he is right, that the policy which he
advocates should not be accepted as being the law of Quebec for
the remainder of this century without considerable consideration
being given to the needs of that time-span.” 51 I have delved into
the French authorities for two reasons. Firstly, to show that the
interpretation of the majority of the Quebec judgments of the
meanings of latent and apparent defects in articles 1522 and 1523
C.C. is not dissimilar to that of the French doctrine and decisions.
This gives support to the view that the Quebec judicial interpretation
is well founded, and I submit that this weakens Professor Gow’s
statement that “… article 1522 states its policy quite clearly, namely
that the seller is obliged to supply a thing which by and large is
worth the price the buyer has paid or promised to pay. It appears,
so far as language is trustworthy, to reject the policy of caveat
emptor, or, as the old Germanic law put it, ‘He who does not open
his eyes opens his purse.'” My second reason for going into the
French authorities is to suggest that the similarity between the
French and Quebec positions means that the fact that the common
law has changed does not lead to the inevitable conclusion that the
Quebec stand is archaic.
Now to come to the most important matter at hand: to deal with
Professor Gow’s contention that the present interpretation of Quebec
law is unreasonable to the buyer. Let us review our position. The
buyer has the duty to examine and inspect the thing before buying,
but with these exceptions: where it is impractical for this to be
done (such as by reason of delivery from elsewhere, or otherwise),
where there is an express guarantee, or where the vendor has made
misrepresentations to the extent that the contract may be annulled
on the ground of fraud. I have also expressed the view that where
a new object has been acquired from the person who made it, the
purchaser should only be responsible for finding defects that are
blatantly apparent. Is the foregoing unfair to the buyer? Surely
only an irresponsible person is going to purchase something without
looking it over. To fall back on the test of what a bon pare de famille
would do, surely he would consider it only reasonable to examine
the thing. Here, the balance of the equities favours the seller, for
it is to be presumed that the buyer would have taken such defects
into consideration when agreeing on the price.
As to the principle that the buyer must be assisted by an expert
when he is ignorant as to the object: we have seen the view of the
51 Op. cit. fn. 2, page 246.
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Quebec courts on the matter, that an expert is necessary under such
circumstances, and Professor Gow has found this to be unreasonable.
It must be acknowledged that the jurisprudence has taken a
strong line on this matter, but it must be borne in mind that the
reported judgments requiring experts have largely related to a
relatively small field: buildings that are not new and used auto-
mobiles. What must be remembered is that in the majority of
instances no expert need be engaged: where there is an express
guarantee, where the contract is vitiated by fraud, or where the
object is bought from its manufacturer. As to new objects not
purchased from their manufacturers (e.g. automobile and television
sets bought from dealers), while I have conducted no surveys and
have no statistics at my disposal, it is my own personal experience
in this commercially oriented North American society in which we
live, not only that modern manufacturers almost invariably furnish
express guarantees, but also, and this is even more important, many
merchants seem to realize that it is good business to stand behind
a policy of “goods satisfactory or money refunded”, which maxim
goes far beyond the legal obligation of warranty against defects.
Let us consider sales of second hand objects, such as buildings
not purchased new from their builders and used automobiles and
appliances. It is here that Quebec law requires an expert to be
engaged. Once more, however, the requirement of an expert will
be waived where there is an express guarantee or where the contract
can be annulled because of fraud on the part of the vendor. We
could probably also include the case where the object sold has been
rebuilt by the seller, and even perhaps where repairs of a major
nature have been effected.
Let us now consider the instances where an expert must be hired:
as to old buildings, it is only common sense for anybody investing
such a large sum of money to have the advice of an expert, no
matter what recourses in warranty the law may give him against
his vendor. As to used automobiles and appliances, it is commonly
known that such goods are easily susceptible to defects. A purchaser
who is wise but technically ignorant, will only consider it reasonable
to obtain the advice of a mechanic, in the absence of an express
guarantee. Where a used car is being bought from a private person,
the buyer is not at a disadvantage, and it would seem in the interests
of society that in such a situation the seller be protected against
the recourses of the buyer who has not had an adequate examination
carried out.
No. 4] APPARENT DEFECTS IN SALE REVISITED
359
Should a dealer be treated differently? Unlike the average private
seller, he is deemed to be an expert and is presumed to be aware of
the defects. Where he has rebuilt the thing or carried out major
repairs to it, he may be on the same footing as the manufacturer
of a new object. But where he has done neither of these, the resulting
problem is not a simple one to solve. I still feel that a reasonable
man, when acquiring an object of a worthwhile magnitude, will
protect himself by retaining an expert, unless he is able to obtain
an express guarantee. Professor Gow may disagree. However, it
must be borne in mind that buyers of such objects are not at the
mercy of their sellers –
there is heavy competition amongst the
latter which gives the buyer some choice and the courts will naturally
tend to take a more severe attitude towards a dealer than an ordinary
vendor, with the result that they are often able to discover the
presence of an express guarantee, and sometimes of fraud. In short,
it would seem reasonable for a buyer of a used object such as a car
to engage an expert or insist on an express guarantee, and failing
that, to go elsewhere. If I may be permitted to refer, as did Professor
Gow, to a principle of Roman law, I would like to cite a maxim
that I feel still has relevance even in this twentieth century welfare
state of ours: Vigiiantibus non dormientibus juvat lex.
In closing, it is surprising to find Professor Gow, a lawyer
trained in the civil law of Scotland which has long struggled against
English domination in the form of statutes passed by the U.K.
Parliament and decisions of the House of Lords, advocating a Uni-
form Sales Act for Canada. Our Civil Code forms a unit, with the
title of obligations at its heart. This title of obligations sets forth
the general rules applying to all contracts, including the contract
of sale. The title of sale merely gives additional or special rules
that apply to that contract alone. A Uniform Sales Act would not
fit into this scheme. Moreover, the civil law and the common law,
while their application to individual cases may produce similar
judgments, have an approach, a style and a language of their own
which lead to confusion in terms. This is why the Bills of Exchange
Act and the Criminal Code make such difficult reading for a person
trained in the civil law. Why upset our civil law system by inserting
what would be to a great extent a common law enactment? The
most important factor, however, is that the civil law system of
Quebec is one of the bases of Quebec culture, just as, according to
Professor T. B. Smith, “Since her Union with England in 1707,
Scotland has in a sense survived as a nation by and through her
Laws and Legal System”.52 While we should always be prepared
52 A Short Commentary on the Law of Scotland (1962), vii.
360
McGILL LAW JOURNAL
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to amend the Code where this has shown itself to be necessary or
desirable (indeed, the Nadeau Commission is at work on this at this
very moment), such amendments must be of a civilian nature and
in keeping with the style of the Civil Code, and it is unthinkable
that the Quebec Civil Code provisions on the contract of sale should
be replaced by a Uniform Sales Act, as the same would undoubtedly
be quite different in its approach. As Quebec already has its own
civil law system, why introduce another which would inevitably
lead to confusion because of the differences of language and style?
All in all, while I have not changed the views on apparent defects
as expressed in my previous article, which only covered a relatively
small part of the subject, I am grateful to Professor Gow for giving
me this opportunity to round out the picture in the way it should
have been done in the first article.
