We have bought a second-hand motor yacht and just after its acquisition defects in the engine force us to spend sometimes more money than the price of the boat itself. Questions: What is the legal situation according to Spanish law, how long can the warranty be extended, should I repair it and then claim or claim before? What to do in these cases?
First of all, you should pay attention to the clause of submission to the national law and jurisdiction established in the purchase contract. Normally, the contract is governed by Spanish law in the event that we buy the boat in Spain. It is important to note that Spanish law makes a distinction depending on whether the seller is a businessman or not:
1) If the seller is a private individual who is not a businessman, the Civil Code applies in articles 1484, 1485 and 1490 under “guarantee against hidden vices or defects of the thing sold”.
The consequence of the existence of hidden defects is the seller’s obligation to respond for them, which in our law is called “saneamiento” (Article 1461 of the Civil Code states that “the seller is obliged to deliver and repair the object of the sale”), and the buyer’s formal request that the seller respond or that the existence of the defects be taken into account for the purposes of the fulfilment of the contract is called “acción de saneamiento por vicios ocultos” (action for repair due to hidden defects). However, there are three cases in which this remedy is not applicable: when the defects are manifest or visible, when the buyer is an expert who by reason of his profession or trade should easily know them, and when the parties have so stipulated and the seller was unaware of the hidden defects or faults of what was sold (articles 1484 and 1485 of the Civil Code).
The remedy for hidden defects is different depending on whether there is partial loss or total loss of the thing sold.
In the case of partial loss, there are, in turn, three possibilities (article 1486 of the Civil Code):
- a) the redhibitory action (from redhibere, to return). In this case, the buyer withdraws from the contract and must be reimbursed by the seller for the expenses he has paid.
- b) the action quanti minoris. In this case, the buyer chooses to reduce a proportional amount of the price paid, as judged by experts.
- c) action of compensation for damages. If the seller knew of the hidden defects or faults of the thing sold and did not make them known to the buyer, the latter will have, in addition to the possibility of bringing the redhibitory or quanti minoris actions, the right to be compensated for damages.
In the case of total loss, i.e., the perishing of the thing affected by hidden defects, it is necessary to distinguish, in turn, whether the loss was due to the defects or whether it was due to an act of God or the fault of the buyer. In the first case, if the seller knew of the defects, he must reimburse the buyer the price and pay the costs of the contract, with damages. If the seller was unaware of the defects, he must only return the price to the buyer and pay the costs of the contract. In the second case (loss of the thing affected by defects due to an act of God or the fault of the buyer), the buyer can claim from the seller the price he paid with the reduction of the value of the thing at the time of the loss, but if the seller acted in bad faith, he must pay the buyer damages and interest (article 1488 Civil Code).
Finally, the aforementioned remedies for hidden defects will be extinguished after six months, counted from the delivery of the thing sold (article 1490 of the Civil Code).
2) If the seller is a natural person or a company that carries out the economic activity of selling boats (Business to Consumer or Business to Business), article 114 and following of the General Law for the Defence of Consumers and Users and article 9 of Law 23/2003 on guarantees in the sale of consumer goods, dictated after the European Directive 1999/44/CE, are applicable, the guarantee is as follows:
The seller is liable to the consumer and user for any lack of conformity that exists at the time of delivery of the product, and the regulation includes four types of remedies applicable depending on the case: repair, replacement, price reduction and termination of the contract.
This set of mechanisms is known as a “legal guarantee”, which should not lead to misunderstandings, as it is not strictly speaking a guarantee, but rather a sanction for the seller who breaches his obligation to comply with the agreement, regardless of whether the breach was voluntary or not, and without the possibility of waiver by the consumer.
The seller shall be liable to the consumer for defects in the goods within two years of delivery of the goods. In the case of second-hand goods, the warranty period can be agreed between the buyer and the seller, provided it is at least one year. However, the consumer is obliged to notify the lack of conformity within two months of the occurrence of the defect.
The prescription for litigation and legal action is 3 years from the delivery of the goods.
Furthermore, in order to avoid injustice, the producer or seller who has been liable to the consumer and user has a period of one year to claim against the seller or producer responsible, respectively and as the case may be, for the lack of conformity. In other words, if it is the seller who is liable to the consumer, and if the seller considers that the producer is responsible for the defect, he can claim against the producer.
As these cases, when they go to court, are usually resolved by means of an independent expert report -since the seller will always maintain that the defect is due to the misuse of the new owner- it is important before suing to carefully prepare the claim with a first pre-action legal brief and a good expert report and always advised by a good and specialized law firm; at IURISNAUTIC we have a long experience in these matters.
Carlos Espinosa
Solicitor & Tax Adviser
+34 627 413 201
carlos.espinosa@iurisnautic.comÂ
