BAD FAITH VENDOR CAN BE HELD RESPONSIBLE FOR AN APPARENT DEFECT *

Article 1726 of the Quebec Civil Code states that the seller is bound to warrant the buyer that the property and its accessories are free from hidden defects that render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price had he been aware.

The case law requires that a buyer act prudently in order to invoke the warranty of quality. He is generally required to have the property inspected by a qualified professional. In the face of any indicators that a defect may exist, the prospective buyer should take reasonable steps to investigate further, which may include obtaining the opinion of an expert. When such indicators are present and the buyer omits or neglects to follow up with amore in depth investigation, the defects which it is presumed he could have become aware of if not for his imprudence will generally be regarded as apparent and therefore not covered by the seller's warranty of quality.

However, certain circumstances such as false or misleading representations by the seller could falsely reassure or confuse a buyer regarding the nature or existence of indicators that should normally be investigated further. False or misleading reassurances by the seller tending to provide innocent explanations to explain the presence of such indicators designed to steer a buyer in a different direction could serve to exculpate an otherwise negligent buyer. 

The parties to a contract have a legal duty to act in good faith. Where a buyer is less than prudent by omitting or neglecting to investigate further, clues of which he is or should be aware that a defect could exist, the seller could still be held liable if he knew of the existence of a defect that he failed to disclose or withheld material information about the possible existence of a defect from the buyer. For example, a seller who has in his possession, a copy of a revealing pre-inspection report commissioned by another prospective purchaser tells a buyer that such a report does not exist or is not available. If the report contains material information about the actual or possible existence of a defect, the seller's liability could be engaged even when the defect might otherwise be considered as apparent if the withholding of such material information contributed to the buyer being misled.

Apart from a recourse based on the warranty of quality, it could also be argued that a seller who has made false or misleading representations to a buyer could be found liable for having breached his duty to act in good faith.

*For an illustration, see Leclerc et al. -v- Lemieux et al.,2019 QCCS 1209