WHAT IS AN APPARENT DEFECT IN THE
CONTRACT OF SALE?
John W. Durnford
1. Introduction.
2. The seller’s warranty extends to latent defects only.
3. When is a defect held to be apparent?
A. Introduction
B. The buyer’s duty to inspect.
C. The buyer’s duty to obtain expert advice.
(i) introduction.
(ii) the case of a building.
(iii) the special case of the new building.
(iv) the case of a motor vehicle.
4. The buyer’s protection: an express guarantee.
5. Conclusion.
1. Introduction
Sale is a consensual contract (article 1472 C.C.). Ownership is
transferred instantaneously on the meeting of the minds even though
the payment of the price and the delivery of the object have not
yet been made. But the transfer of title does not alone suffice. The
buyer must also be put in possession.1 Thus one of the two principal
obligations imposed on the seller is the delivery of the thing sold
(article 1491 C.C.), delivery being the transfer of the thing sold into
the power and possession of the buyer (article 1492 C.C.).
The seller’s obligations do not end with delivery, however, for
the buyer’s possession of the thing must be both peaceful and useful
if he is to benefit from it. If he is evicted or otherwise troubled in his
possession, or if the thing is so affected by defects as to destroy the
usefulness of his possession, the benefit of the thing to the purchaser
may be nil or greatly reduced. Consequently, the second principal
obligation of the seller is the warranty of the thing sold (article
1491 C.C.).2 This warranty has two objects: eviction of the whole
Associate professor of law at McGill University.
1 Doniat, Oeuvres, I (1822), page 311; Pothier, Traiti du Contrat de Ventc,
ed. Bugnet (1861), paragraph 41.
2Domat, Oeuvres, I (1822), page 312; Faribault, Traiti de Droit Civil du
Quibec, XI, pages 229-230.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
61
or any part of the thing, and the latent defects of the thing (article
1506 C.C.) . We are here concerned with the warranty against latent
defects.
2. The seller’s warranty extends to latent defects only
It is a basic feature of the seller’s warranty that he is responsible
only for the latent (meaning hidden) defects in the thing sold. This
principle is clearly set forth in the Civil Code. Article 1506 C.C.,
being the opening article of that section of the Code dealing with
the vendor’s warranty, states, as we have already seen, that the two
objects of the vendor’s warranty are eviction and latent defects. The
sub-title that preceeds the articles relating to the latter warranty reads
“Of warranty against latent defects”, and this is immediately followed
by article 1522 of which the opening words read: “The seller is obliged
to warrant the buyer against such latent defects in the thing sold…
as render it unfit.. .” 4 As if the matter were not already sufficiently
clear, we find the principle reinforced by article 1523 C.C., which
reads as follows: “The seller is not bound for defects which are
apparent and which the buyer might have known of himself”. 4 The
reason for this is that the purchaser is presumed to be aware of such
defects and to have set his price accordingly. 5 The corresponding
articles of the French Civil Code (1641 and 1642) differ from articles
1522 and 1523 only slightly in their wording and have the same
meaning.6 We can therefore take it to be well established that the
seller’s obligation under both Quebec and French law to warrant the
buyer against defects extends only to those that are hidden.
3. When is a defect held to be apparent?
A. Introduction. The principle that the seller is not responsible
for defects that are apparent has been clearly laid down. Its very
simplicity, brought about by the wording and style employed by the
codifiers, gives it a certain beauty. This does not call any the less
for skill, however, in its application to the great variety of situations
that present themselves. For when can a defect be said to be latent,
3 Pothier, Trait6 du Contrat de Vente, ed. Bugnet (1861), paragraphs 81 and
202; Mignault, Le Droit Civil Canadien, VII, page 84.
4 Italics added.
5 Mignault, op. cit., VII, page 109; Faribault, op. cit., XI, page 279; Martin v.
Galibert (1915) 47 S.C. 181 (Court of Review).
6 Article 1641 C.N. “Le vendeur est tenu de Ia garantie h raison des d~fauts
caches de la chose vendue qui la rendent impropre a l’usage auquel on la destine,
ou qui diminuent tellement cet usage, que I’acheteur ne l’aurait pas acquise, ou
n’en aurait donn6 qu’un moindre prix, s’il les avait conhus.” Article 1642 C.N.
“Le vendeur n’est pas tenu des vices apparents et dont I’acheteur a pu se con-
vaincre lui-m6me.”
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and when apparent? Is there any duty, for example, on the purchaser
to examine the thing he is buying? Will the vendor be liable for a
defect that would have been visible if the buyer had taken the trouble
to look? Or, to go one step further, suppose the buyer is acquiring
an object which he carefully looks over and which to his untrained
eyes is not affected by defects, but which object an expert would
quickly discover to be defective? Should we apply the following
dictum: “A latent defect within the meaning of art. 1522 C.C. is one
which is not apparent to an honest buyer, even though an expert, if he
had been engaged prior to the purchase, might have discovered it.”T?
Or should we take the view that “…. un d6faut n’est pas cach6 par
cela seul que l’acheteur ne l’a pas apergu, ou qu’il n’en a pas appr~ciM
la gravit6; et que celui qui n’a pas les connaissances requises pour
juger de l’6tat d’une chose qu’il va acheter doit s’assurer le concours
d’une personne capable de le renseigner: l’art. 1522 C.C. n’est pas
destin6 A remddier aux cons6quences de la lg~ret6 ou de I’ignorance”.1
Or again, suppose the buyer takes the precaution of hiring an expert,
engaging one who has a reputation for being competent, and the
expert, through negligence, overlooks a defect which another expert
would have noticed. Who will be protected here, the buyer who was
prudent enough to consult a competent expert who happened to be
negligent on that particular occasion, or the seller, who could argue
that if the expert had shown diligence he would have discovered,
the defect, which was therefore apparent? And, finally, how far
must the buyer (or his expert) go in their examination? Suppose,
for example, that there is a bulge in the wall of a building which may
or may not be caused by a defect, the answer only being obtainable on
removal of bricks. Is the buyer or his expert responsible for the
taking of such exploratory steps?
These are the questions which we shall now discuss.
B. The buyer’s duty to inspect. The buyer must examine and
inspect the object he is purchasing. 9 Even if the defect be a major
7 Collins, J., in Rothstein v. International Construction Inc. [1956] S.C. 109
at 111.
8 Pratte, J., in Dallaire V. Vill neuve [1956] Q.B. 6 at 9-10.
9 Pothier, Traitj du Contrat de Vente, ed. Bugnet
(1861), paragraph 207;
Mignault, op. cit., VII, page 117; Faribault, op. cit., XI, pages 277-278; Payette,
La garantie des ddfauts cachds chez les viarchands de voitures usagies (1961)
39 Th6 ris, page 148 at 149-150; Guillouard, Traiti de la Vente et de l’Echange,
2nd edition, I (1890), page 448; Baudry-Lacantinerie, Traiti Thdorique et Pra-
tique do Droit Civil, de la Vente et de l’Echange, 3rd edition, XIX (1908), page
425; Laurent, Principes de Droit Civil, 4th edition, XXIV (1887), page 278;
Planiol et Ripert, Traiti Pratique do Droit Civil Frangais, 2nd edition, X (1956),
pages 144-146; Aubry et Rau, Droit Civil Franfqais, 6th edition, V (1946) pages
81-82.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
63
one, if it would have been discovered by a prudent buyer it will be
considered apparent and the seller will not be responsible for it.
Pothier gives as examples a house that is falling into ruin, a horse
that limps or is blind (aveugle) ;1o Mignault’s example is that of a
horse that is blind in one eye (borgne).” A more modern example
would be that of an automobile “in which the brakes did not work.
We see an application of the rule that the buyer must examine
the goods. in Independent Fruit Company V. Mallette.12 Independent
Fruit was claiming the price of five hundred crates of tomatoes sold
and delivered to Mallette. The latter admitted the claim insofar as
two hundred and forty-eight of the crates were concerned, and pleaded
he owed nothing for the balance of two hundred and fifty-two crates
on the ground they were unfit for consumption. The sale had come
about as follows: Independent Fruit had received a railroad car ship-
ment of tomatoes from the United States. Mallette was allowed to
visit the car to make such inspection of its contents as he deemed
advisable, which he did, after which he bought the five hundred crates.
These were delivered to him crate by crate at the car side. Three hun-
dred and fifty-three crates were sent by Mallette to his customers,
some of whom complained to him of their quality the next day. He then
had a government fruit inspector inspect the one hundred and forty-
seven cases still remaining in his possession, who condemned some
but declared the rest to be marketable.
” .
The Court of Appeal ordered Mallette to pay the full price.
The defect in a portion of the tomatoes
. would necessarily
have been discovered on the most cursory examination.. .” 13 and
were consequently held to be apparent defects, and “….
if they were
not known to him when he bought the said tomatoes, it was because
he had not taken the trouble sufficiently to examine and inspect
them, and he should suffer the consequences of his own neglect”.1 4
That the necessary examination is not just a casual one is borne
out by the fact the tomatoes being in crates, Mr. Justice Howard
said Mallette should have torn the paper wrappings off the tomatoes
through the openings between the slats of the crates. However, the
judge, realizing that too heavy an onus should not be put on the
purchaser, suggested that he “… . might have done what the Govern-
ment inspectors do, i.e., examine, say, every tenth box as it passed
through his hands when taking delivery”. 15
10 Pothier, op. cit., paragraph 207.
11 Mignault, op. cit., VII, page 109.
12 (1931) 50 K.B. 137.
13Ibid, at page 140.
14 Ibid, at page 139.
15 Ibid, at page 142.
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The courts have on many other occasions held defects to be ap-
parent where the purchaser could have discovered them on an exam-
ination.16
It is easy to lay down the principle that the buyer must examine
the thing. It is not so easy to determine the extent to which he must
go in order to discover possible defects. What criteria are going to
guide the courts when faced with individual situations? The examina-
tion must be as careful and serious a one as would be carried out
(1885) 8 L.N. 3
16 Hart v. Decarie (concerning tomatoes)
(1922) 60 S.C. 548 (Court of Re-
view); Hushion & Co. Ltd. v. Denault (concerning hay) (1914) 20 R. de J. 277
(1891) 20 R.L. 20
(Court of Review); Guest v. Douglas (concerning wine)
(Court of Appeal); Marquis v. Poulin (concerning merchandise) (1891) 20 R.L.
24 (footnote); Crevier v. Chayer (concerning a horse) (1880) 3 L.N. 84 (Mackay,
(Loranger, J.);
J.); Vincent V. Moore (concerning pigs)
Paquette v. Dipocas (concerning a carriage) M.L.R. (1887) 3 S.C. 48 (Mathieu,
J.) ; Vipond v. Findlay (concerning fish) M.L.R. (1891) 7 S.C. 242 (Tait, J.);
(1898) 4 R. de J. 225 (Tellier, J.);
Blain V. Vincelette (concerning a horse)
Fraser v. Magor (concerning fish) (1892) 1 S.C. 543; Duclos V. Pinette (con-
(1901) 7 R. de J. 210 (Choquette, J.); Marcotte V. Montreal
cerning a horse)
Concrete Tile, Limited (concerning artificial stone) (1914) 46 S.C. 483 (Demers,
J.) confirmed by the Court of Review); Arpin v. Francoeur (concerning a
(1930) 48 K.B. 231; Gauthier V. Electrical Equipment Co. (concerning
house)
(1922) 28 R.L. n.s. 151 (Court of Review); Magnan V.
electric light bulbs)
(1933) 39 R.L.
Perkins Electric Company Ltd. (concerning a movie projector)
(1912) 18 R.L.
n.s. 314 (Surveyer, J.); Johnson v. Ranger (concerning a horse)
(1914) 45 S.C. 325 (Court of Review); Neiss V.
n.s. 533 (Bruneau, J.), and
[1945] R.L. 253 (Mackinnon, J.); Dumaine V.
Noiles (concerning a fur coat)
Comean (concerning hay) (1918) 24 R.L. n.s. 105 (Court of Review); Cedillot
[1951] S.C. 379 (Smith, J.); Perron
v. Lalonde (concerning plumbing nipples)
v. Morin (concerning an automobile) [1957] R.L. 522 (Brossard, J.) ; Labrecque
v. Duckett (concerning cheese) (1902) 22 S.C. 135 (Court of Review) ; Dufresne
(1884) 12 -R.L. 433 (Mathieu, J.); Bessette V. Lyall
v. Reilly (concerning wood)
(1910) 38 S.C. 474 (Court of Review); The Dominion
(concerning bricks)
(1911) 40 S.C. 184 (Lemieux,
Lumber Company v. Auger (concerning wood)
see (1921) 59 S.C. 107);
A.C.J., and, accordingly to him, confirmed in appeal –
[1956] Q.B. 6; David v. Man-
Dallaire V. Villeneuve (concerning a garage)
ningham (concerning a building) [1958] S.C. 400 (Jean, J.); Laberge V. Gcrvais
(1918) 53 S.C. 370 (Weir, J., and confirmed by the Court
(concerning a house)
(1928) 66
of Review); Demontigny v. Dame Balthazard (concerning a house)
(1899)
S.C. 283 (Surveyer, J.); Dame Titreault V. Dully (concerning a horse)
16 S.C. 89 at 92 (Tellier, J., and confirmed by the Court of Review though the
latter did not rule as to whether the particular malady affecting the horse was
apparent or not); Ledoux v. Lessert (concerning hay) (1914) 20 R. de J. 529
at 541 (Bruneau, J.); MeDuff V. Fitzpatrick (concerning wood) [1948] S.C. 426
(Surveyer, J.); Dubs v. Cousineau (concerning a florist refrigerator)
(1940)
46 R. de J. 470 (Forest, J.); Cormier V. Papy (concerning an automobile) [1955]
R.L. 106 (A.I. Smith, J.); Contra (by inference): Dame Antil v. Bigras (con-
(1922) 60 S.C.
cerning defective foodstuffs in the sale of a grocery business)
545 (Gu~rin, J.).
No. I WHAT IS AN APPARENT DEFECT IN SALE?
65
by an alert and wide awake buyer and the defect will be considered
as apparent if the buyer could have discovered it so long as such
discovery is possible even though attended by a greater or lesser
degree of difficulty. 17 On the other hand, the buyer is not obliged to
use special scientific methods or research.’ For example, a buyer of
foodstuffs is not obliged to subject them to chemical analysis. The
defect will be hidden where, while it was noticed by the buyer at the
time of acquisition, it looked as if it were one that would not normally
render the thing unfit for the use for which it was intended, but in
fact does so when the thing is put into regular operation subsequent
to the sale.’ A defect will also be considered as latent if it could only
be found by out of the ordinary measures. Baudry-Lacantinerie
cites a judgment relating to rotten supporting beams under a floor –
the beams were completely concealed. The floors could have been
taken up and the beams examined but it is not customary to so
damage a house when inspecting it with a view to its purchase. The
defect was therefore held to be latent.20
Our courts have in many situations held defects to be latent
where unusual steps would have to be taken to discover them. We
shall first look at examples relating to immoveables. Defects
in
underground drains are latent.2 1 Where heating pipes were laid under
the bottom floor of a building and were unprotected against moisture
with the result that they rusted and sprung leaks within five years,
the defect was held to be hidden.2 2 A defect in foundations of a house
is latent where a deep trench would have to be dug along the length
of the foundation to discover it. 2
3 Defects in a roof caused by lack of
ventilation are latent where they can only be discovered by breaking
open the covering.24
‘7 Faribault, op. cit., XI, pages 277-280; Guillouard, op. cit., I, page 448;
Aubry et Rau, op. cit., V, pages 81-82; Laurent, op. cit., XXIV, pages 278-279;
Baudry-Lacantinerie, op. cit., XIX, pages 425-426.
18 Planiol et Ripert, TraitM Pratique de Droit Civil Frangais, 2nd edition, X
(1956), pages 144-146.
10 Ibid, pages 146-147.
20 Baudry-Lacantinerie, op. cit., page 427.
21 Plotnick v. Bartos [1961] S.C. 87 (Perrier, J.); Gagnon v. Dame Moffett
[19461 R.L. 319 (Philippe Demers, J.); Hanakova v. Girard [1957] S.C. 344
(Brossard, J.); Bourcier v. Donohue [1956] S.C. 25 (Batshaw, J.).
22 Unreported judgment of Brossard, J., in Ridgewood Court Inc. v. Zaritsky.
February 18, 1963, S.C.M. 367238.
23 Notes of St. Jacques, J. in Gauthier v. Cornitg de Rialisation de la Citd-Jardin
[1955] Q.B. 100 at 103. See a similar statement of principle by Dorion, J. in
Renaud v. Huguet (1930) 49 K.B. 271 at 273-274, though in that particular case
it was his opinion that the defect was apparent for other reasons.
2 4 Rothpan v. Drouin [1959] Q.B. 626.
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We shall now look at examples of defects affecting moveables
that were held to be latent: a fracture in the base of -a diesel engine
that could only be discovered when the engine had been taken down
and the bearing removed; 25 defects in a refrigerator which could
only be discovered on its being put into operation; 26 the sickness of
brucellose (the premature dropping of the young) affecting cows,
which cannot be diagnosed by a veterinary surgeon on an examination
without the taking of tests; 27 arthritis in a horse which can only be
discovered by X-Ray; 28 balkiness and viciousness in a horse, defects
which could be discovered only by harnessing it and trying to drive
it; 29 and bales of hay that are rotten inside.80
Mignault .suggests that if the parties are not in the presence of
the thing sold, the seller will be responsible for apparent defects.31
It could perhaps be better stated this way: the buyer will be relieved
of his obligation to examine and inspect the object before the sale
where circumstances or the nature of the object render it impractical.12
In such a case when the thing is delivered to the purchaser he will be
in a position to regard all the defects as latent. It must be borne in
mind, however, that to preserve his rights to the redhibitory action
or the action quanti minoris (which must be taken with reasonable
25 Mallory v. Canadian Fairbanks Morse Co. Ltd. [1942] S.C. 132 (Errol
McDougall, J.). Apparently the motor made no unusual noises when running, as
opposed to the automobile case of Churchill v. Parker [1953) R.L. 509 (Ralston,
J.), where a connecting rod concealed inside the motor which broke soon after
the sale was held to be an apparent’defect as an expert would have heard and
recognized a foreign sound when the engine was going.
26 Dame Norbert v. Belanger [1953] S.C. 295 (Ferron, J.).
27 Mercier v. Saucier [1960] S.C. 305 (Lacroix, J.).
2S Remillard V. Beaulieu [1960] S.C. 657 (Challies, J.).
29 Mercier v. Morin (1914) 20 R. de J. 549 (McCorkill, J.).
30 Marehand v. Campeau (1891) 20 R.L. 24 (Taschereau, J.).
31 Mignault, op. cit., VII, page 109.
32 See, in this connection, Faribault, op. cit., XI, page 280; Dame Goudrcai v.
Stanford’s Ltd. (1923) 61 S.C. 83 (Maclennan, J.); Brown V. Gagnon (1921) 59
S.C. 102 (Court of Review); Jardine v. Dame Allen [1952] S.C. 126 (Demers, J.).
It is to be noted that some French authors recognize the possibility of usages
in certain trades whereby the buyer is entitled to wait until the goods have
arrived at his premises before he examines them (Guillouard, op. cit., I, pages
449 to 451; Laurent, op. cit., XXIV, page 279; Baudry-Lacantinerie, op. cit., XIX,
pages 431-433); Aubry et Rau, op. cit., V, page 82, footnote 8. It would be a
question of fact as to whether such a usage existed in a particular trade or
locality in Quebec. In this connection, see Julius Kayser and Co. Ltd. v. C. & G.
Lingerie Co. Ltd. [1963] S.C. 504 at 508-509 (Batshaw, J.).
No.1 WHAT IS AN APPARENT DEFECT IN SALE?
67
diligence under article 1530 C.C.), the purchaser must examine the
object immediately on its receipt.33
C. The buyer’s duty to obtain expert advice.
(i)
Introduction. We have seen that the buyer must examine the
object which he is acquiring and that the seller will not be responsible
for defects which an alert buyer would have noticed in a careful and
serious examination. The question now to be considered is whether
an examination by the buyer alone will suffice. If so, the criterion as
to what is an apparent defect will become both relative and subjective
rather than absolute and objective; for while the courts would impose
on buyers the duty of care, they would have to make allowance for
the fact that some purchasers are more skilled than others. Thus
an architect buying himself a house would be regarded as in a better
position to discover defects than an ordinary person. As a consequence,
the extent of the warranty owed by the seller would vary in relation
to the individual purchaser.
Moreover, let it not be forgotten that the law dislikes uncertainty
and that it should be the constant aim of the law to lessen the like-
lihood of litigation. If a relative and subjective standard were to
apply to the buyer, the courts would be faced with having to determine
the degree of skill possessed by each individual buyer involved in
litigation over defects, a hard if not impossible task that would tend
to be rendered the more difficult by attempts by buyers to hide their
expert knowledge. Also, allowing a buyer to purchase without the
benefit of skilled advice and then after the sale to sue on the basis
of defects which an expert could have pointed out to him, would cer-
tainly increase litigation.
The alternative, then, is to require the buyer to adhere to a more
absolute and objective standard when purchasing. 4 The only way
that this can be achieved is where a prior examination by an expert
is carried out, because a reasonable degree of uniformity of standards
can be expected from each profession or trade. A buyer who pur-
chases after the object has been examined by an expert is much
less likely to acquire something suffering from serious defects, and
33 Durnford, The Redhibitory Action and the “Reasonable Diligence” of Article
1530 C.C., (1962-63) 9 McGill L.J. 16 at 27; Mignault, op. cit., VII, page 119;
Faribault, op cit., XI, page 302; Ross v. Baker (1891) 20 R.L. 203 (Court of
Review) ; Guest v. Douglas M.L.R. (1888) 4 Q.B. 242; Fraser v. Magor (1892)
1 S.C. 543 (Pagnuelo, J.); Vipond V. Findlay (1891) 14 L.N. 298 (Tait, J.);
Cushing v. Strangman (1892) 1 S.C. 46 (Court of Review); Marchand v. Dame
Gibeau (1892) 1 S.C. 266 (Court of Review).
34 See Magnan v. Perkins Electric Company Ltd.
(1933)
39 R.L.n.s. 314
(Surveyer, J.).
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the extent of the vendor’s warranty will be much more clearly defined,
for he will only be responsible for defects that are hidden to an
expert in the field. The result is greater certainty and less cause for
litigation.
Doctrine has for the most part opted for the buyer being required
to consult an expert concerning an object with respect to which he
to judge for himself its condition. ‘
is not technically qualified
This means that if a defect is one that an expert would have discovered
it will be considered as being apparent and the seller will not owe
any warranty to the buyer against it. We shall now examine the
jurisprudence of our courts on the matter. The reported judgments
nearly all relate to buildings and used automobiles, presumably
because these involve relatively substantial purchases on the part of
quite a large section of the public and are frequently subject to
defects. Thus the remainder of this article will concentrate on those
two items. 36
The jurisprudence has almost unanimously taken the same view
as the majority of the doctrine with respect to buildings, with one
important exception. When it comes to motor vehicles, the courts
have sometimes wavered.
(ii) The case of a building. The strong line taken by the courts
respecting the necessity for a buyer to consult an expert is reflected
a number of decisions. A good illustration is Dallaire v. Villeneuve,3 7
35 Pothier, Traitj du Contrat de Vente, ed. Bugnet
(1861), paragraph 207
lui [the buyer] d’examiner la chose avant que de l’acheter,
(“… il ne tenait qu’
ou de ]a faire examiner par quelqu’un, s’il ne s’y connaissait pas lui-m~me.”) ;
Faribault, op cit., pages 278, 279; Louis Payette, La garantie des difauts eachds
chez les marchands de voitures usages, (1961) 39 Th~mis, page 148 at 150;
Planiol et Ripert op. cit., X, pages 144-145; Baudry-Lacantinerie, op. cit., XIX,
pages 426-427. Contra: Mazeaud, Lemons de Droit Civil, III (1960), pages 840-
841; Aubry et Rau, op. cit., V, page 82, footnote 8; Walter S Johnson, The
r’edhibitory action and buildings –
Implications of acceptance of work, (1952)
12 R. du B. 322, at 331, footnote 24. The latter two of these last three works only
make. passing reference to our problem.
36 As to sales involving other types of objects: in Magnan v. Perkins Electric
Company Ltd. (1933) 39 R.L.n.s. 314 (Surveyer, J.), it was held that a purchaser
of a movie projector who lacks the necessary technical knowledge should engage
an expert. The same rule was held to apply to a horse: Dame Titreault V. Dully
(1899) 16 S.C. 89 at 92 (Tellier, J., and confirmed by the Court of Review
though the latter did not rule as to whether the particular malady affecting the
horse was apparent or not). On the other hand, in Dame Antil V. Bigras (1922)
60 S.C. 545 (Gudrin, J.), an action quanti minoris based on defective foodstuffs
in the sale of a grocery business was maintained where the purchaser and her
husband actually alleged their ignorance of this line of business. It is hard to
consider this judgment as being well founded.
3T [1956] Q.B. 6.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
69
which involved the sale of a garage. The purchaser sued on the basis
that the roof and the heating system were affected by defects which
he claimed were latent. The Court of Appeal agreed that the defects
complained of not only existed but were serious. The framework of
the roof had so little strength that it sagged under the roof’s weight
and steel beams were necessary to prevent its collapse. The heating
system’s steam boiler had not been equipped with the safety devices
required by law, aid the inspection service of pressure vessels (being
part of the Department of Labour) had advised that the necessary
permit would not be issued until certain changes had been made.
The Court held the defects to be apparent. Mr. Justice Pratte
said that a defect is not latent by the mere fact that the buyer did
not notice it or did not appreciate its gravity; that a person who lacks
the necessary knowledge to judge the condition of a thing he is going
to buy must obtain the assistance of a person able to inform him:
article 1522 C.C. is not intended to remedy the consequences of casual-
ness or ignorance. As to the roof, the purchaser should have climbed
up into the attic through a trap-door in the ceiling, and the inadequacy
of the construction would have been evident. As to the boiler, a buyer
who was ignorant in such matters, but prudent, would have obtained
expert advice or would at least have asked to be shown the permit
required by the Pressure Vessels Act. Consequently the purchaser’s
claim on the grounds of defects in the roof and in the heating system
was dismissed.38
The Court’s attitude that a defect is apparent if- it would have
been discovered by an expert is reflected in a number of cases.39
It is true that statements have been made in at least two judgments
that a buyer is not required to engage an expert and that a defect is
only apparent where an ordinary buyer could have found it on his
own.40 However, these cases are isolated; moreover, they relate to
31 The buyer was successful as regards another claim which related to defects
see the
in the garage equipment which was sold under an express guarantee –
discussion under the heading “The buyer’s protection: an express guarantee.”
39E. and M. Holdings Inc. v. Besmor Investment Corporation [1961] Q.B. 376;
Arpin v. Francoeur (1930) 48 K.B. 231; Dame Gagnon v. Dame Houle (1923)
34 K.B. 11 at page 18 (notes of Rivard, J.); David V. Manningham [1958] S.C.
400 (Jean, J.); Ridgewood Court Inc. v. Zaritsky, unreported judgment of Bros-
sard, J.; February 18, 1963, S.C.M. 367238; Dame Kirsh v. Boisjoly [1962] S.C.
604 (Robinson, J.) (this case held fire doors which contravened city fire by-laws
to be an apparent defect as the purchaser should have engaged an expert to
examine the building to see if it conformed with the by-laws –
this judgment
seems better founded than that of the Court of Appeal in Piersanti v. Dame
Laporte [1956] Q.B. 210, where infringements of city and provincial health
by-laws were held to be latent defects).
40 Lauzon v. Levesque (1929) 67 S.C. 470 (Philippe Demers, J.) ; Rothstein v.
International Construwtion Inc. [1956] S.C. 109 (Collins, J.).
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new buildings, a special category which will be discussed under the
next heading.
Having established that a prospective purchaser should consult an
expert before buying a building, we must now consider how far the
expert should go in his examination, and whether a defect will be
declared to be latent or apparent where a competent expert happens
to overlook it. These problems are considered in the most interesting
case of Levine v. Frank W. Horner Limited.41 The Horner Company
had owned the building in question and had carried on business in it
since about 1916. During the Company’s ownership additions had been
made. It originally had three storeys. In 1919 a fourth floor was added;
the front wall of the additional storey was supported by a large con-
crete beam which extended across the front of the building. In 1922
or 1923, the building was extended to the North; the addition was
built against the northerly .wall of the existing part of the building,
the old wall being left in place. Almost the entire front of the old
part of the building was made up of a single window, whereas the
new part had smaller windows with bricks between. In order to make
the appearance of the enlarged building more uniform, the owner
partly bricked over the large window. When the Levines bought
the building, they did so with the intention of carrying out subs-
tantial alterations including the removal of the wall between the old
and new parts.
Before acquiring the building, the purchaser had it inspected by
both an architect (Bernstein) and an engineer (Berenstein), Bernstein
had been in practice as an architect for sixteen years, and the general
competence of these two professional men was not questioned. They
made a reasonably thorough examination that lasted about two hours.
Bernstein noticed a bulge in the brickwork but considered it to be of
no significance and did not bother to report it to the buyers. During
the course of the alterations being carried out by the Levines after
-they had bought, it was discovered that the beam that had been put
in to support the front wall of the fourth storey had tilted, causing
its lower part to move outwards and make the bulge in the brick-
work. The old large window on the front of the old part of the build-
ing was also found behind the bricks. The result was that the front
of this part of the building had to be rebuilt at a cost of over $8,000.
There was no bad faith on the part of either party –
they were both
unaware of the defects.
At trial, the defendant company called its own architect, Chadwick,
“… who stated that if he saw a bulge in the position in which the
41 [1961] Q.B. 108, confirmed by [1962] S.C.R. 343. See also the case comment
y Graham Nesbitt (1961-62) 8 McGill L.J. 232.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
71
bulge in question occurred, he would consider the matter seriously,
that he would examine it to find its cause and that such bulges
should be considered serious when they are found in a wall face
having such a large proportion of window area and, consequently,
such a small proportion of supporting brickwork”. 42 The late Mr.
Justice Ralston, of the Superior Court, while acknowledging that a
superficial examination by an architect might not have led to the
discovery of the defect, said he was convinced that if the architect
Bernstein had examined into the cause of the bulge (by stripping
the building sufficiently to find the beam), he would have found the
defect, which could therefore not be “… considered as in any way
latent within the meaning of the Articles covering such matters in
the Civil Code, and particularly Article 1523 C.C.” 4 Bernstein had
made an error in judgment when he discounted the bulge which he
saw, and Chadwick’s reasoning was “. . . unassailable from the scientif-
ic point of view.””
It was Mr. Justice Ralston’s view that while the
Levines had taken such reasonable precautions as they could to verify
the soundness of the structure which they intended to purchase,
“…
they were undoubtedly misled, albeit in good faith, by their own
architect, and in this the Court has every sympathy with them.
However, their remedy does not lie against the Defendant under such
circumstances and their action must be dismissed”.45
The Court of Appeal upheld the trial judgment three to two,
with Montgomery and Choquette, J.J. dissenting. Mr. Justice Mont-
gomery felt that too heavy a burden had been imposed on the buyers.
They had had the building looked over by two competent profes-
sional men who had conducted an inspection lasting about two
hours, and in order to discover the defects they would have had
to remove either a part of the exterior brickwork or of the interior
panelling. He said, in short, that “I am of the opinion that it is
going too far to deny their (the buyers’) recourse because some
professional man, perhaps more cautious than others, might have
made a further examination which would have disclosed these
defects.” 4″ To this, Mr. Justice Choquette added that the buyers did
not have the duty to open the wall, which was the only way the defects
could be found. He cited Baudry-Lacantinerie to the effect that a
defect is latent when it can only be perceived by means of unusual
operations.47 The example is cited of rotten beams concealed under
42 Extract from the judgment of Ralston, J., November 12, 1954, S.C.M. 322763.
43 Ibid.
44 Ibid.
45 Ibid.
40 Levine v. Frank W. Homer Limited [1961] Q.B. 108 at 111.
47 Ibid, at pages 116-117.
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floors and above ceilings, it being unnecessary for the buyer to
demolish either the floor or the ceiling for the purposes of inspection.
As to whether the bulge indicated a defect, the learned judge felt that
the disagreement between the experts as to the significance of the
bulge constituted a debate of a technical order which was not one for
the court to settle. The purchasers had fulfilled their duty in hiring
experts who were competent and conducted a careful examination. He
therefore considered the defect to be latent.
The majority judges were St. Jacques, Casey and Badeaux, JJ.
Mr. Justice St. Jacques (with whom Mr. Justice Casey agreed), did
not feel that the defect was hidden to the extent that a competent
expert would not have found it. He agreed with Chadwick that the
presence of the bulge was a sufficient indication of a defect. It should
also be borne in mind, however, that it was Mr. Justice St. Jacques’
view of the facts that the defect did not affect the solidity of the
building as regards the way the vendor had been using it and the
way the purchasers could have used it if they had not altered it –
that it was the transformation by the purchasers that had made
necessary the reconstruction of the wall.48 He also expressed skepti-
cism as regards the very basis of the action, namely whether the
purchasers really would not have bought or would have paid $12,000
less 49 in light of the price that was paid of $140,000 and of the altera-
tions that were carried out amounting to about $80,000.
Mr. Justice Badeaux also felt that Bernstein had not attached
sufficient importance to the bulge that he had noticed. He, too,
pointed out that the Horner Company had used the building for the
purposes of its business for many years with no trouble, and that
it was Chadwick’s view that a buyer desirous of making the changes
that the Levines had contemplated should have made a more careful
examination.
Thus it was the ruling of the majority of the Court of Appeal
that the defect was apparent. The Levines appealed to the Supreme
Court, 50 where the judgment was delivered by Mr. Justice Abbott.
After setting forth the facts, the learned judge’s sole comments were
as follows:
“Assuming as I do, but without deciding, that the sale was one made with
full legal warranty, the sole question in issue here is whether the defect
complained of was a latent defect within the meaning of art. 1522 of the
Civil Code. The learned trial judge and the majority in the Court below have
held that it was not and I am in respectful agreement with that finding.”
4S Choquette, J., dissenting, disagreed –
it was his view that the repairs would
have had to be done anyway.
49 They had claimed damages as well as the cost of the rectification of the defect.
5o [1962] S.C.R. 343.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
73
“The appeal should be dismissed with costs.” 31
There are some in this Province who say that cases involving
the civil law should not be submitted for decision to the Supreme
Court as it is to a large extent imbued with common law principles,
thereby endangering the purity of the civil law system. Others say
that the Supreme Court should sit in two divisions, with only judges
trained in the civil law deciding private law cases from Quebec. These
arguments may or may not be well founded. Perhaps they are out-
weighed by considerations of a national order or because of the
importance of actions involving civil liberties
(which often arise
as private law cases). In any event, the Supreme Court has no
right to abdicate its functions of its own accord. Where important
principles of law require a clear and definitive interpretation, it is the
function of the court of last resort to give that interpretation, and
where the questions concern Quebec law it is up to the civilian
judges in the Supreme Court to furnish it. Outstanding judgments
on the Quebec civil law have been rendered in the past by our highest
court. Take, for example, the notes of Chief Justice Anglin in
Samson & Filion V. The Davie Shipbuilding & Repairing Co.,52 where
the liability of the vendor for damages caused by the latent defect in
the object sold was discussed. It is up to the Supreme Court to carry
on this tradition.
So what are we left with- in the Levine v. Frank W. Homer
Limited case? We have a majority opinion on certain key questions
relating to the interpretation of what is an apparent defect under
article 1523 C.C. Firstly, as to whether the purchaser must engage
an expert when acquiring a thing concerning which he lacks tech-
nical knowledge: None of the five judges of the Court of Appeal
denied the necessity for the consulting of an expert, though this ques-
tion did not really present itself because the buyer had in fact engaged
experts. However, in view of the three other urianimous Court of
Appeal decisions (cited supra) of E. and M. Holdings Inc. v. Besmor
Investment Corporation,53 Dallaire v. Villeneuve –
and Arpin v.
Francoeur,55 it can now be taken that insofar as the purchase of
buildings is concerned (subject to the exception of new houses dis-
cussed under the next heading), defects which an expert would have
discovered will be considered apparent even though the buyer himself
might not have noticed them.
51 Ibid, at page 346.
52 [1925] S.C.R. 202.
53 [1961] Q.B. 376.
54 [1956] Q.B. 6.
55 (1930) 48 K.B. 231.
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Secondly, as regards how far the expert must go, and who will
bear the loss in the case of an oversight on his part: It was the view
of the majority (in the Levine Court of Appeal decision), that a
defect is apparent not only where an expert is able to see the defect
itself but also where he can only see the exterior indication of a
possible defect which may or may not exist beneath the surface. Thus
a bulge, while found from time to time in an old building and may
or may not be caused by an inner .defect, will constitute sufficient
notice to the purchaser of the existence of a possible defect so as
to render that defect apparent if it exists. It is felt by some that it is
putting a heavy onus on a buyer to require him even to engage an
expert, partly because article 1523 C.C. does not mention such a
requirement. Then to force the expert to explore what may well be
a harmless bulge may be forcing the buyer to go too far. Graham
Nesbitt, in his comment on this case,56 took this view. The strength
of the decision is weakened by a feeling on the part of the majority
judges that if the building had not been subjected to alterations but
had continued to be used as the vendor had used it, no difficulty would
have been experienced. One senses that it was felt that the buyers
had brought the trouble on themselves.
Putting this factor aside, let us consider the validity of the prin-
ciple that a defect is apparent where there is nothing more than
an exterior sign indicating the possibility of a defect underneath,
for not having stare decisis in our system of law, the principle laid
down by the majority of the Court will only be followed if it can be
regarded by judges deciding future cases as being sound. The two
dissenting judges, Montgomery and Choquette, JJ., felt it was not
sound –
it was too much to expect of a buyer to open up the wall and
explore behind the bulge. The latter quoted Baudry-Lacantinerie to the
effect that a defect will be hidden if it could only be found “…. au
moyen d’un travail qu’il n’est pas dans l’usage de faire.” ;7 No one
can quarrel with this. But the example then given by that French
author as an illustration does not accord with the situation in the
Levine case. Baudry-Lacantinerie speaks of a house where the beams
under the floors were rotten. The beams, “… 6tant couverts et en-
velopp6s dans toute leur Rtendue par les planchers et les plafonds,
se trouvaient ddrob6s 0 tous les regards. On aurait pu, sans doute,
en enlevant les planchers et en abattant les plafonds, connaltre l’6tat
des poutres et sommiers; mais il n’est pas d’usage de faire de telles
d6gradations quand on visite une maison pour l’acheter”. 8 It is to be
56 (1961-62) 8 McGill L.J. 232.
57 Levine v. Frank W. Horner Limited [1961] Q.B. 108 at 116.
58 Ibid, at page 116. Italics added.
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
75
noted that in the foregoing example the rotten beams were entirely
hidden and there was no exterior sign to act as a warning, in contrast
to the bulge in the wall in the Levine case.
If it is agreed that a prospective purchaser must carefully exam-
ine and inspect the object of his purchase, and that if he lacks the
necessary knowledge to do so properly, he must hire an expert, then
surely there is no point to such an examination unless it is a careful
one. All outward indications of possible defects are then commu-
nicated to the buyer, who may then (1) assume the risk of there
being a defect, (2) advise the seller of his refusal to purchase without
the possible defect being explored or (3) demand an express guarantee
from the seller.59
It was agreed by Mr Justice Montgomery that the buyer had
carried out his duty of consulting competent experts, and he felt this
sufficed –
that the buyer should not be penalized because another
more cautious expert might have made a further examination. If it
were a pure question of a technical debate between experts, one would
agree with the learned judge. But is there not here a hint of negli-
gence on the part of the purchasers’ experts? Not to even bother
mentioning a bulge (which, after all, could hardly be considered a
healthy looking thing for a building wall to have) to their clients was
casual, to say the least.
This leads to another aspect of the problem. Where the buyer
fulfils his duty by consulting an expert of recognized standing and
competence, this expert is just as subject as any of the rest of us
to being momentarily careless, or, to use a colloquial expression, to
having an “off day”. This is why even the most competent of profes-
sional men carry liability insurance. Where the expert commits an
oversight and does not see a defect which he as an expert should have
noticed, or fails to report to his client what. might be considered to be
indications of a possible defect, both the buyer and the seller will
be innocent parties. Which of them is to be penalized by the expert’s
negligence, in other words will the defect be held to be latent or
apparent? If the evidence discloses that a careful and diligent expert
would have warned of the defect or the possible existence of the defect,
then surely the defect will be considered to be apparent and the buyer
will have his recourse in damages against his expert.
It may be protested that such a heavy onus is being placed on
the buyer that he will no longer feel safe with only one overall expert
such as an architect, that he will have to have a group of specialists,
“. because so many trades and materials enter into the construction
59 See the discussion under the heading “The buyer’s protection: an express
guarantee” (infra)
McGILL LAW JOURNAL
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of the house, such as plumbing, heating, roofing, masonry work, found-
ation, etc.” 60 The answer to this was furnished by Mr. Justice Hyde
in E. and M. Holdings Inc. v. Besmor Investment Co?,poration.6′ He
said “I am not suggesting that a buyer.., is obliged to retain the
services of an expert in each of the building trades, but that is
very different from proceeding without any expert advice at all.”
The learned judge suggests that if the purchaser had been prudent and
had engaged a builder or architect to advise him, the expert, after
seeing the building, might have advised an examination by an elec-
trical expert.
The foregoing would seem to supply the key to the situation:
the buyer must consult a competent general expert such as an
architect, who will report all defects which his skill and knowledge
make apparent to him and will report to his client the necessity for
specialized experts where there exist indications of the possibility
of other defects. Where there are no defects or signs of possible
defects (warranting specialized experts) visible to the architect,
then any defects in the building will be latent.
(iii) The special case of the new building. Where a person buys
a new home from the contractor who built it, is he obliged to have
an expert examine it? That lie is not was held in Tellier V. ProuIx.6 2
Plaintiff bought a modest two storey dwelling from the defendant
contractor who constructed it. The heating system was defective –
the upstairs radiators were too small and had to be replaced by
larger ones and the circulating pump also had to be changed. In
answer to defendant’s claim that plaintiff should have had an expert
examine the house, Mr. Justice Batshaw said that this was not neces-
sary for the buyer of a modest dwelling, which was built by an appa-
rently reliable contractor. “The vendor contractor is presumed to have
built in a workmanlike manner and in accordance with the rules of
the building art … The buyer of a new house is entitled to assume
it was built with reasonably good and adequate materials, and with
due compliance with the building art, without being obliged to resort
to detailed tests or technical computations to verify this to be the
case. Accordingly, the plaintiff in the present case was entitled to
assume that the radiators which appeared to be of normal and satis-
60 Collins, J., in Rothstein v. International Construction Inc. [1956] S.C. 109
/
at 111.
61 [1961] Q.B. 376 at 379.
62 [1954] S.C. 180 (Batshaw. J.)
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
77
factory size were adequate to heat the premises he was purchasing.” 63
Similar remarks were made by Mr. Justice Boulanger in Bourdon V.
Lamontagne 614 (though in that particular instance the purchaser
had had the house examined by an architect). In that case part of the
new floors would have had to be taken up and a hole fourteen feet
deep would have had to be dug in order to discover the defect which
caused the floor to collapse hardly one month after the purchase.
There are two other cases that also relate to new buildings.
Rothstein V. International Construction Inc.65 concerned a duplex in
which the radiators were inadequate and four of them had to be
replaced. It was in this judgment that Mr. Justice Collins made his
statement that a latent defect is one which is not apparent to the
honest buyer even though an expert, if one had been engaged, might
have discovered it. While the Court of Appeal has decided otherwise,
nevertheless this statement of principle is consistent with Tetier V.
Proulx (supra) if restricted to the purchase of a new building from
the contractor who built it. A similar view can be taken of Lauzon v.
Lvesque 66 which involved a three storey apartment building. 67
How sound is this exception in favour of the buyer of the ne~y
house? It does not seem to have been ruled on by the Court of Appeal
as yet. In E. and M. Holdings Inc. V. Besmor Investment Corporation,6
Mr. Justice Hyde, in referring to Tellier v. Proulx, Rothstein v. Inter-
national Construction Inc. and Lauzon v. Lvesque, said: “Whether
these cases were properly decided or not, and this is a question I do
not propose to discuss, I agree that they can be so distinguished.”
Thus the question is still open, but as the principle is a sound one, it
should continue to be applied. Perhaps the following line of reasoning
could be followed in support of the principle: in rhaking the buyer
responsible for apparent defects, article 1523 C.C. does not expressly
require him to engage an expert to look for defects, but the reasonable
man who is not himself an expert will take the precaution of consult-
ing, one when purchasing something concerning which he is ignorant.
On the other hand, when acquiring a new house from the contractor
who built it, the reasonable man will feel entitled to rely on the con-
63 Ibid, at page 182-183. See the interesting article by Walter S. Johnson, The
Redhibitory action and buildings –
Implications of acceptance of work, (1952)
12 R. du B. 322. At page 333 he discusses the situation where a contractor has
built a house for an owner, which is somewhat similar to a person buying a new
house from a contractor builder.
64 [1945] S.C. 269.
65 [1956] S.C. 109 (Collins, J.).
66 (1929) 67 S.C. 470 (Philippe Demers. J.).
67 See also Dame Fortin v. Grimarf; [1958] S.C. 381 (Batshaw, J.).
G, [1961] Q.B. 376.
McGILL LAW JOURNAL
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tractor, who is holding himself out as being an expert in construction,
and so the reasonable man will not in such an instance feel it necessary
to engage his own expert. Another line of reasoning is that the
contractor-vendor who is sued cannot plead non-responsibility for the
defects because his defence rests on his own lack of skill (which
caused the defects) and the law will not permit one to plead his own
turpitude. Whichever line of reasoning is followed as regards the
contractor-vendor, it must be borne in mind that the purchaser will
not be excused for his own negligence either –
thus while he may be
protected as regards defects which are not visible to the inexpert
eye, he will not be so protected as regards those that are. Hence, if
a reasonable man is able to see that the chimney on the house is
leaning to the extent that it is about to collapse, then the defect will
be an apparent one and will be the responsibility of the buyer even
though it may be a new house that he is acquiring from a contractor-
vendor.
An additional reason for imposing a heavier burden on the
vendor-contractor is that the buyer of an older house has a certain
advantage in that it will have been tried and tested, with a good
chance of defects arising from errors of a technical order on the part
of the builder having been discovered and remedied. The buyer of a
new house, on the other hand, is more at the mercy of the builder
insofar as defects are concerned.
(iv) The case of a motor vehicle. The Court of Appeal having
strongly laid down the rule that the buyer of a building should have
it inspected by an expert on the basis that any defect that a compe-
tent expert should have found will be considered an apparent defect
for which the seller will not be liable, one would expect, as articles
1522 and 1523 C.C. do not distinguish between different types
of objects, to find the same rule applied to the purchase of a motor
in some cases. In Sirois v. Demers,6 9 an
vehicle. It has been –
exchange of two automobiles took place, shortly after which plaintiff
discovered that the car he had acquired was in poor condition. A
mechanic testified that it was easy to discover the defects on taking
a short drive. The Court cited Planiol et Ripert to the effect that for
automobiles, “… le vice est cach6 toutes les fois qu’il n’aurait pu
8tre d6couvert que par un expert proc6dant A des verifications minu-
tieuses ou apr~s quelques milliers de kilom~tres de circulation” and
held the defects to be apparent. 70
In Lincourt V. Ggngreux,7′ the six year old second hand car that
69 [1945] K.B. 318.
70 Ibid, at pages 322-323.
71 [1944] S.C. 438 (Archambault, J.).
No.1 WHAT IS AN APPARENT DEFECT IN SALE?
79
was purchased suffered from a crack in the cylinder block, which
the buyer discovered soon after the sale. The vendor had offered to
have the automobile examined by a mechanic before the sale, but
the purchaser said this would not be necessary. After a thorough
review of the authorities, Mr. Justice Archambault held the defect
to be apparent. He said that if the purchaser was not competent to
examine the car, he committed a fault in not accepting the offer to
have it inspected by a mechanic; if he was competent, he was negli-
gent in not having carefully examined the cylinder block. In either
case, the defect could easily have been found. A prudent buyer, unless
he was an expert, would not have bought a six year old car without
having it minutely examined by an expert.
In Churchill v. Parker,7 2 a second hand Hillman Minx automobile
was purchased by plaintiff. It had been driven just, under 20,000 miles.
Plaintiff examined the car superficially before buying, including
driving it for several city blocks. When he was on his way home after
the purchase, a connecting rod broke inside the engine, causing consi-
derable damage. It
is true that a motor must be at least partly
dismantled in order for a connecting rod to be visible. The defect was
nevertheless held to be apparent because of testimony to the effect
that a garage mechanic listening to the motor would probably have
heard a noise that would have indicated the likehood of the break
that took place. Mr. Justice Ralston said that a person is very impru-
dent if he does not have a second hand automobile inspected by a
competent garage mechanic or some other expert before buying it.
There was a similar holding in Perron V. Morin.73
In view of the foregoing attitude shown by the courts, it is with
some surprise that we now study the unanimous Court of Appeal
decision rendered in 1955 by Galipeault, C.J., and Gagn6 and Marti-
neau, JJ. in the case of Bourget V. Martel.7 4 Plaintiff Martel had
bought a second hand Buick automobile that was five years old. He
did not examine the car before buying it nor did he have a mechanic
do it for him. Two or three days after taking possession, Martel
showed the car to two mechanics, one of whom testified that the
car “…n’6tait pas en 6tat de marcher dans le chemin.” In his
recital of the facts, Mr. Justice Gagn6 mentioned that the car was
undergoing repairs at the time of the sale. He also referred to the
attempts by Martel and his wife to prove an express guarantee (Bour-
72 [1953] R.L. 509 (Ralston, J.).
73 [1957] R.L. 522 (Brossard, J.). See also Canadian Auto Corporation v.
3Morin, Lirnitie [1950] Q.B. 581; Orner Barri Ltd. V. Gravel (1940) 78 S.C. 262
(McDougall, J.); Racine v. Demers [1949] S.C. 370 (Belleau, J.).
74 [1955] Q.B. 659.
McGILL LAW JOURNAL
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get “….
leur a dit que la voiture 6tait en bonne condition et qu’ils
n’avaient rien. a craindre”.) .7 These two factors might have consti-
tuted a sound basis for the judgment which resiliated the sale –
if the car was under repairs at the time of the sale, it could have been
argued that no proper examination and inspection could have then
been carried out, meaning that the defects were latent for the pur-
chaser, 76 and an express guarantee extends the vendor’s warranty to
cover apparent as well as latent defects. 77 Instead of this, Mr. Justice
Gagn6 said: “Certes, il efit 6t pref6rable pour l’acheteur de faire
examiner l’automobile par un homme comp6tent avant de la prendre.
Il est ivident que la vente n’aurait pas eu lieu.” 73 He also said that
the conventional warranty that plaintiff had tried to prove was
the affirmation that the car was in good condition and
unnecessary –
they had nothing to fear “…. n’ajoute rien A l’obligation prise par un
vendeur d’automobile, mme s’il s’agit d’une voiture usag~e.” “, The
basis of the court’s judgment is to be found in his following key
words: “A tout 6v6nement, il est certain que lorsqu’on ach~te une
automobile usag6e, on s’attend et on a droit de s’attendre e recevoir
une voiture qui fonctionne normalemdnt et non pas une voiture sur
laquelle il faudrait d6penser quelques centaines de dollars pour la
mettre en 6tat de s’en servir.” so Does this not go directly contrary
to the provisions of articles 1522 and 1523 C.C.? It is true that
under article 1522 the seller must warrant the buyer against defects
render it unfit for the use for which it
in the thing sold which “…
was intended.. .”, but the article is specifically referring to latent
defects. The seller is not responsible for apparent defects (article
1523 C.C.). Have we not seen strong authority, both doctrinal and
jurisprudential, to the effect that a defect is apparent if it would
have been discovered by an examination on the part of the buyer or
by an expert where the buyer is technically ignorant? There was no
in this instance. Moreover, a mechanic who
prior examination
examined the vehicle after the sale testified that defects were such
75 Ibid, at page 663. It should be noted that in Benoit V. Metivier [1948] S.C.
53, S~vigny, C.J., resiliated the sale of a defective automobile where the vendor
had declared that the motor was running well.
76 See the discussion in the last paragraph under the heading “The buyer’s duty
to inspect” (supra).
77 See the discussion under the heading “The buyer’s protection, an express
guarantee” (infra).
78 [1955] Q.B. 659 at 664. Italics added.
79 Ibid, at page 663.
S Ibid, at page 664. Italics added. Martineau, J., even added that the buyer has
the right to receive a car that is worth approximately the price that was paid
for it (at page 668). Is this not a question of lesion, which does not avail in
favour of persons of age (article 1012 C.C.)?
No. 1 WHAT IS AN APPARENT DEFECT IN SALE?
81
that the car was not even fit for the road. Surely this means that
the defects were glaringly apparent?
It should be noted that the Court of Appeal never once even
mentioned article 1523 C.C. in its judgment. The only authority cited
was the Supreme Court decision in Lortie V. Bouchard.81 In that case
the sale of a bus and other assets was annulled on grounds of fraud.
In Bourget v. Martel, the Court of Appeal was dealing with a redhibi-
tory action. The two are not the same. 2 It is respectfully submitted
that to hold that one is entitled to receive, when buying a used car
without examination and in the absence of fraud and of an express
guarantee, a vehicle that functions normally, is not to decide in
accordance with our law.83
Another decision with which the author respectfully differs is
that of Longprg v. St. Jacques Automobiles Ltge.s4 Plaintiff Longpr6
purchased a second hand Mercury from the defendant. There was a
crack in the motor, rendering it defective. The car was sold “tel que
vu et sans garantie.” In order for Longpr6’s redhibitory action to be
successful, this exclusion of guarantee had to. be ruled invalid. This
required twin findings by the court: one, that the seller either knew
or was presumed to know of the defect, thus making the clause of
non-warranty fraudulent, and two, that the defect was latent (the
81 [1952] 1 S.C.R. 508.
82 See Commercial Credit Corporation of Canada Ltd. v. Legault (1939) 77
S.C. 520 (Forest, J.).
83 A judgment that might be said to resemble that in Bourget v. Martel, is the
old one in Connolly v. Bidard (1890) 19 R.L. 304 (Court of Appeal), which con-
cerned the sale of pine lumber. The Court of Appeal confirmed a Superior Court
judgment which held a sale to be uncompleted where the seller knew what kind
of lumber the buyer wanted and also the purpose for which he required it and
delivered lumber of inferior quality which was unfit for the use for which the
purchaser wanted it. This might be considered analogous to the situation where
a used car dealer is selling a car – he knows that the purchaser wants something
that will run. There is also Laverdure v. Lahaie [1945] R.L. 69 (Loranger, J.),
where it was held that the buyer of a second hand car is entitled to receive one
that is in a good functioning condition. However, on examining the judgment we,
find that the purchasers had beforehand advised the seller that they were putting
their trust in him to supply them with a car suitable for making outings, with
its motor and working parts in good order. Instead, the vendor sold them an old
wreck –
“ce vieux bazou”. One could perhaps justify this judgment on a basis
of an implied guarantee on the part of the seller to furnish the purchasers with
what they had requested: “Ce n’est pas du vieux fer que les demandeurs ont
achet~s; c’est une v6iture de promenade” (at page 73). We also find Mazeaud,
op. cit., III, pages 834-835, saying that if the buyer lacks technical knowledge,
the defects will be latent if only an expert is able to find them. This statement
is apparently based on automobile cases that are cited in the text.
s4 [1961] S.C. 265 (Drouin, J.).
McGILL LAW JOURNAL
[Vol. 10
seller not being liable for an apparent defect even when aware of the
same) . 5 The car was apparently not examined by an expert prior
to its acquisition and the defect was held to be latent, “….
puisque
l’acheteur, simple citoyen, ne peut pas, sans d6faire le moteur, se
rendre compte d’un tel trouble”., 6 The defect being hidden and the
seller being a dealer in automobiles, the seller was presumed to know
of the defects and so the exclusion of warranty was put aside. Thus
the learned judge relieved the buyer from the obligation of having an
expert examine the car before its acquisition even though he was
ignorant in such matters. This would not seem to be in keeping with
our law. Moreover, the author disagrees with his statement 87 that
the same principles applied as were laid down in Lemire V. Pelchat,88
a significant difference being that in that case the purchaser had had
the tractor examined by a mechanic before the sale,89 and it was only
after difficulties had been experienced and the machine had been
dismantled six or seven months after the sale that the full extent
of the defects could be ascertained.90
So much for the jurisprudence on the purchase of old cars. We
have seen the courts lay down the same strict rules as they did with
respect to the purchase of old houses, namely that the buyer must
conduct an examination before the sale, and consult an expert if he
lacks the necessary technical competence himself. However, we have
also seen wavering on the part of the courts, including statements to
the effect that an expert need not be engaged, and that a buyer is
entitled to receive a car that runs. These inconsistencies may perhaps
be explained on the basis that the courts are reluctant to allow used
car dealers take advantage of innocent members of the public. This
equitable objective may be laudable, but cannot be satisfactory as it
conflicts with the principles laid down in articles 1522 and 1523 C.C.,
which must be applied as they are unless the legislature sees fit
to amend them. As Mr. Justice Choquette said in La Caisse Populaire
de Scott V. Guitlemette: 91
85 The seller is not liable for an apparent defect except where there is an
express guarantee, (see the discussion under the heading: “The buyer’s protec-
tion: an express guarantee”), possibly where a new house is involved (see the
discussion under the heading C. (iii) “the special case of the new building”), or
where the contract is being set aside on grounds of fraud (as in Lortic v. Bou-
chard [1952] 1 S.C.R. 508: Pothier, op. cit., paragraphs 207 and 208; Faribault,
op. cit., XI, page 278; Mignault, op. cit., VII, page 117; Vincent v. Moore (1885)
8 L.N. 3 (Loranger, J.); David v. Manningham [1958] S.C. 400, at 402 (Jean, J.).
86 [1961] S.C. at 267.
87 Ibid.
88 [1957] S.C.R. 823.
89 Ibid, at page 825.
9o Ibid, at page 826.
91 [1962] Q.B. 293 at 298.
No.1 WHAT IS AN APPARENT DEFECT IN SALE?
83
“Sans doute encore, faut-il reconnaitre la rigueur de cette clause dite dation
en paiement aux termes de laquelle le d~biteur incapable de continuer ses
versements peut se voir enlever sa proprit4, sans indemnit6 et au grand
detriment de ses cr~anciers, m~me s’il a pay4 les trois quarts de sa dette, ou
plus. Mais c’est au lgislateur qu’il appartient d’intervenir pour temperer
cette rigueur … Les tribunaux, eux, ne peuvent que donner effet aux con-
ventions qui ne drogent pas aux lois d’ordre public ou aux bonnes moeurs
(C.C. art. 13), sauf les causes de nullit6 dont il n’est pas question ici (C.C.,
art. 991)”.
It is therefore submitted that when one is buying a used car,
he must examine it and consult an expert if he is not himself mechan-
ically knowledgeable, and that any defect that a competent expert
would have found will be apparent and consequently the sole respon-
sibility of the buyer. This will apply so long as the defects are ap-
parent, even though the vehicle may not even be fit for the road,
unless, of course, the buyer has the necessary grounds for taking an
action to annul the sale on the grounds of fraud (as was maintained
in Lortie V. Bouchard.). 92
As to new automobiles, the same are generally covered by an
express guarantee. As to what will happen where an automobile
manufacturer fails to fulfil the terms of the conventional warranty
which he has stipulated, see Touchette v. Pizzagalli.9 3
4. The buyer’s protection: an express guarantee
The law puts apparent defects at the charge of the buyer (article
1523 C.C.). The parties may, however, add to the obligations of legal
warranty (article 1507 C.C.). Where there is an express guarantee
that the thing is in good condition, the effect is to make the vendor
liable for apparent defects.94
92 [1952] 1 S.C.R. 508.
93 [1938] S.C.R. 433. Note: this case does not relate to what are apparent
defects, but rather to the question whether the manufacturer is entitled to benefit
from the restrictive terms of the conventional warranty where he has been un-
successful in performing his obligations under the same.
94 Faribault, op. cit., XI, page 280; Durnford, The redhibitory action andu the
“reasonable diligence” of article 1530 C.C., (1962-63) 9 McGill L.J. 16 at 28;
Dallaire v. Villeneuve [1956] Q.B. 6 at 11; Arpin v. Francoeur (1930) 48 K.B.
231 at 233-234; Carter v. Limoges (1917) 23 R.L.n.s. 52 (Court of Review);
Fitzpatrick V. Tremblay (1915) 21 R.L.n.s. 148 (Court of Review); Benoit v.
Metivier [1948] S.C. 53 (S6vigny, C.J.); Independent Fruit Company v. Mallette
(1931) 50 K.B. 137 at 144; Stewart v. Atkinson (1894) 22 S.C.R. 315; Shorey v.
Henderson (1895) 7 S.C. 35 (Tait, A.C.J.); Dougall V. Chouillon (1906) 15 K.B.
300 at 307; Vermette v. Typewriter and Appliance Co. Ltd. [1948] S.C. 139
(Trahan, J.); Jardine v. Dame Allen [1952] S.C. 126 (Demers, J.); Kearns v.
Fleming (1933) 71 S.C. 285 (Martineau, J.). See also Mass6 V. Fraser (1914)
23 K.B. 247; Bouchard v. Vaillancourt [1961] S.C. 171 (Montpetit, J.).
McGILL LAW JOURNAL
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5. Conclusion
“The seller is not bound for defects that are apparent…” (article
1523 C.0.). We have seen that this has been interpreted to mean
that the buyer must examine the thing before he buys it and that the
examination must be as careful and serious a one as would be carried
out by an alert and wide awake buyer and that he must engage an
expert to do so for him where he lacks the necessary technical know-
ledge and skill. Consequently, a defect that a careful buyer or an
expert should have discovered will be an apparent one for which the
vendor will not be liable in warranty. We have seen the courts make
an exception to this rule where a new building is being purchased
from the contractor-builder. We have seen the courts sometimes
waver where used automobiles are involved, probably on doubtful
grounds of equity. We have also seen the exception arising out of
the express guarantee, where the vendor has made himself respon-
sible in warranty for all the defects.
While at first sight it may seen harsh to require the buyer to
examine and to hire an expert where he is ignorant, these require-
ments are in the interests of the parties and of society: the purchaser
is buying with proper information at his disposal as to the qualities
of the thing, sellers are protected from claims made by buyers
ignorant of what they were getting into, the use of experts who are
of a recognized standing (e.g. those belonging to a profession, such
as an architect) removes to a great extent the variety of standards
that the courts would have to apply if each case was determined on
the basis of what the particular individual buyer should have noticed,
and litigation will be reduced.
