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When buyer discovers defect, he must take legal action within six months

The Magistrates Court upheld a plea of prescription because the buyer of a car found out the defect well before the action was instituted

malcolm_mifsud
Malcolm Mifsud
25 August 2017, 7:30am
The Court then moved to uphold both pleas of the defendant
The Court then moved to uphold both pleas of the defendant
The Magistrates Court upheld a plea of prescription because the buyer of a car found out the defect well before the action was instituted. This was a judgement delivered by Magistrate Dr Consuelo Scerri Herrera on 5 July, 2017 in Carmelo Cassar -v- Mario Zammit in his name and on behalf of Mario Auto Dealer.

Carmelo Cassar filed a claim against Mario Zammit for the sum of €8,600 which represented works carried out on a Mercedes he had bought from Zammit in October 2015. 

Mario Zammit filed a statement of defence, where he claimed that the action was instituted erroneously since he had no judicial relationship with Cassar, since Mario Auto Dealer Limited had contracted the sale and not himself personally. He also claimed, amongst others, that the action was time barred under Article 1431 of the Civil Code

Zammit had testified that he trades under Mario Auto Dealer Limited and that he had sold the vehicle in question after Cassar had made some enquiries. Shortly after he purchased the car. He had then rang him up complaining that he saw smoke issuing from under the bonnet and Zammit instructed Cassar to take it to a particular mechanic. It seems that all it was was that a hose pipe was damaged and Zammit offered to pay €200 from a larger bill. Zammit insisted that he did not mean he would finance every complaint Cassar may have. Zammit presented evidence that deposits made were being done in the account of Mario Auto Dealer Limited and not his own. 

Carmelo Cassar also testified that he purchased the Mercedes for €11,000 and the car was producing smoke only 10 days later. He further explained that after he took it to the mechanic Zammit had sent him to, the mechanic told him that he had to change the engine and charged him €8,000.

Magistrate Scerri Herrera first dealt with the first plea with regard to whether the defendant had any judicial relationship with the plaintiff. The Court quoted from a previous judgement Frankie Refalo et -v- Jason Azzopardi et decided by the Court of Appeal on 5 October, 2001, which held that for the court to decide whether the two parties of a case have any judicial relationship, the Court must see whether the defendant was prima facie involved in the negotiations with the plaintiff. If this connection is established, this could establish responsibility. Notwithstanding this the defendant may have other pleas which decide the court to declare that he is not responsible for the plaintiff’s claim.

In another judgement Camel Brand Co Limited -v- Michael Debono noe et decided by the Court of Appeal of 7 October, 2005, the Court pointed out that people do make contracts with others, however, if they represent an entity, it must be specified. This must be proved by the person representing others. 

In this particular case the documentary evidence shows that Mario Zammit contracted the sale of the vehicle on a personal basis. However, Zammit had paid the €200 from the company’s account. As a result this first plea was being turned down.

The second plea dealt with whether the action was time barred under Article 1431 of the Civil Code, which reads:

“1431. (1) The actio redhibitoria and the actio aestimatoria shall, in regard to immovables, be barred by the lapse of one year as from the day of the contract, and, in regard to movables, by the lapse of six months as from the day of the delivery of the thing sold.”

Article 1425 further reads:

“The seller is not answerable for any apparent defects which the buyer might have discovered for himself.”

Article 1427 gives the purchaser a choice between two actions, that of action redhibitoria or action aestimatoria.

Article 1431 states:

“1431. (1) The actio redhibitoria and the actio aestimatoria shall, in regard to immovables, be barred by the lapse of one year as from the day of the contract, and, in regard to movables, by the lapse of six months as from the day of the delivery of the thing sold.

(2) Where, however, it was not possible for the buyer to discover the latent defect of the thing, the said periods of limitation shall run only from the day on which it was possible for him to discover such defect.”

The Court quoted from a Court of Appeal judgment of 1 June, 2007, Mallia -v- Abela et, which stated that an action aestimatoria is when the object purchased has a latent defect and asks for a reduction in the price, but keeps the object.

From the evidence gathered, the sale took place on 14 October, 2015 and the damage took place prior to 17 November, 2015, which the payment of €200 to the mechanic was made on that day. This action was filed on 12 December 2016, a year after the damage was established. However, before opening the case the car suffered a second breakdown, where it was decided that the engine had to be changed at the cost of €8,600.

The court pointed out that this second incident was not explained and the evidence does not pinpoint any particular damage found in the car. Since a car is a moveable, then the action should have been instituted within six months. The Court held that there is a legal discussion on whether the six months period is a prescriptive period or if it is a period when the action is being renounced. In the 1970s the prevalent position was that it was a prescriptive period, however, Magistrate Scerri Herrera took a different view and leaned toward that six months is a renunciation of legal action. This is backed up by Mr Justice T Gouder in a judgment Emmanuel Camilleri -v- Anthony Calascione delivered on 29 October 1954. 

In this case, the Court considered that the six months period commenced when the plaintiff was aware of the defect and not on the date of the sale. This took place when the plaintiff took the car to the mechanic and received compensation of €200. In fact, it was from here that the plaintiff had decided that he had to change the engine. However, he filed the case a year after.

The Court then moved to uphold both pleas of the defendant.

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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