Libro Quinto · Título V Capítulo II. Saneamiento

The transferor is subject to warranty against eviction or hidden defects, in every onerous contract in which the ownership, possession, use, enjoyment or exploitation of a thing is transferred.

The contracting parties may expand or restrict by express agreement the effects of the warranty and even agree that it shall not be provided; but the waiver of the warranty shall not be valid if bad faith on the part of the transferor has intervened.

When warranty has been waived, when the time to provide it arrives, the transferor must return only the price he received, if the contract is translative of ownership; except where the warranty event that occurred had been expressly waived, for which purpose, upon entering into the contract, the transferor is obligated to declare the encumbrances and limitations affecting the thing, as well as the hidden defects known to him.

The acquirer may request rescission of the contract in lieu of warranty, if he has lost only a part of the thing, provided that such part is of such importance with respect to the whole that without it he would not have acquired it.

If, by reason of warranty, the transferor were obligated to pay an amount exceeding one-half of the price received, he may rescind the contract by paying the value of the thing at the time of rescission, plus the expenses and losses caused.

Eviction shall take place when the acquirer is deprived, by final judgment by virtue of a right prior to the alienation, of all or part of the thing acquired.

If the claimant's right was not perfect before the alienation and was perfected through fault or negligence of the acquirer, there shall be no warranty against eviction.

Where a trial is brought against the acquirer in cases where warranty applies, the defendant must cause the transferor to be summoned in the manner established in the Code of Civil and Commercial Procedure for the summons of third parties.

If the transferor appears and wishes to assume the defense, the procedure shall continue against him alone, but the acquirer may intervene as a party for the preservation of his rights.

If the transferor submits to the warranty, the acquirer may always continue the procedure by himself; and if he is unsuccessful, he shall have no right to demand from the former the reimbursement of the expenses of the trial, nor that of the fruits received during the same and paid to the owner.

The price that the transferor is obligated to warrant is that which the thing has at the time the acquirer loses it, but if it is less than that which it had upon acquiring it and the transferor had acted in bad faith, the price that the thing had at the time of the transfer may be demanded.

Once eviction has taken place, the acquirer shall have the right to demand from the transferor, in addition to restitution of the price, the following:

1°.The fruits that he has been obliged to return;

2°.Payment for the necessary and useful improvements made by the acquirer, and the expenses of conservation of the thing;

3°.The expenses of the lawsuit that gave rise to the eviction and, where applicable, those of the procedure conducted with the person liable for warranty; and

4°.The expenses and taxes of the contract that he has paid.

If the trial terminates by absolutory judgment in favor of the acquirer, the transferor shall not be obligated to indemnify him for the losses and expenses that the proceedings may have caused him, except to the extent attributable to the act or fault of the transferor.

If only a part of the thing were lost, the price to be warranted shall be that of the part lost, fixed in relation to its importance or in proportion to the total price.

The transferor who has acted in bad faith is obliged, in the event of warranty, to pay the acquirer for recreational improvements and the damage and losses caused.

The acquirer loses the right to warranty against eviction, in the following cases:

1°.If he omits to have the transferor cited in eviction;

2°.When, without the transferor's consent, he settles, discontinues the trial or submits it to trial before arbitrators;

3°.If, having assumed the defense, he neglects it, allows himself to be condemned by default or abandons the trial;

4°.If he fails to make use of legal remedies against the decisions directly affecting the principal matter;

5°.If knowingly he fails to plead the exception of limitation period;

6°.If he fails to employ in the defense the documents supplied to him by the transferor;

7°.If he commits fraud in the trial in which he was defeated, or collusion between him and the claimant is proved; and

8°.If he knowingly acquired another's thing or a litigious thing.

The transferor is obligated to warrant against hidden vices or defects of the transferred thing that render it unsuitable or useless for the use for which it is intended, or that so diminish such use that, had the acquirer known of them, the acquirer would not have accepted the thing or the agreed price.

The transferor is not liable for manifest defects or flaws or those that are in plain view, nor for those that are not if the acquirer, by reason of their trade or profession, should easily know them, except where the transferor has declared that he delivered the thing without any defect.

For the hidden defects of the thing, the acquirer has the right to exercise, at his election, the redhibitory action to have the contract rescinded, or the estimatory action to have returned to him from the price the amount by which the thing is worth less.

If it is proved that the transferor knew of the defects in the thing, he is obliged to indemnify damage and losses, in addition to refunding the price. If he was unaware of them, he is not obliged except to the restitution of the price and to the payment of the expenses of the contract if any were incurred.

The transferor bears the loss of the thing, two or more things being alienated with the thing if it perishes by reason of the hidden defects it had; but if he proves that the destruction could have been avoided and was not avoided through the fault of the acquirer, the latter shall only be entitled to the reduction of the price.

In judicial sales there shall be no liability for damage and losses, but all else provided in the preceding articles shall apply.

When two or more things are alienated jointly, whether for a lump price or with a price indicated for each one, the defect of only one gives rise to warranty for it, but not for the others, unless it appears that the acquirer would not have received the sound thing or things without the one that proves defective, or that the thing consists of a herd or lot of livestock and the defect is a contagious disease.

In the acquisition of a team, yoke or pair of animals, or a set of other things, it is presumed that the acquirer would not have accepted a single one of them nor acquired the incomplete set even though a separate price had been stated for each of the animals or things composing it.

If the animal being alienated dies within the seven days following delivery, the warranty shall lie if the acquirer proves that the death was due to disease or a cause prior to the alienation or to the delivery if the latter was not simultaneous with the alienation.

Livestock and animals suffering from contagious diseases shall not be the object of a contract. Any contract made with respect to them shall be void.

The contract of alienation of livestock and animals shall also be void if, the service or use for which they are acquired being stated in the same contract, they prove to be useless for providing it.

The warranty for hidden defects of animals and livestock shall not apply in sales made at fairs, nor in that of equines alienated as culls, except in the case provided for in the first part of the preceding article.

If the thing alienated is an immovable and it proves to be encumbered with non-apparent servitudes of which no notice was given to the acquirer at the time of contracting, the latter may exercise the action for reduction of the price, if he does not prefer redhibition; but he must bring the former within three months counted from the day on which he obtains knowledge of the servitude.

If the transferor has guaranteed the proper functioning of the thing for a fixed period and a defect in functioning arises during the course thereof, the acquirer must inform the former thereof within fifteen days following discovery of the defect; and if the transferor does not proceed to its immediate repair, the acquirer may demand the warranty remedy.

The redhibitory action or the estimatory action must be brought within the six months following delivery of the thing.

The same actions, for hidden defects of animals, must be exercised within fifteen days from the date of their delivery to the acquirer.

The redhibitory action excludes the estimatory action, and vice versa; once one of them has been brought, the acquirer is deprived of the other.