The First Hall of the Civil Court, presided over by Madame Justice Lorraine Schembri Orland, in the case ‘Edward Ferriggi v Gasan Enterprises Ltd’, held, among other things, that the six-month time limit to rescind a sale under article 1431 of the Civil Code, to run when the defect was reasonably noticeable to the buyer. As this time limit was a period of forfeiture, it was not suspended simply because the buyer notified the seller of the defect.

On January 23, 2009, Edward Ferriggi purchased a silver Ford Focus Trend from Gasan Enterprises Ltd for €18,400 for his son. After four months, Ferriggi informed Gasan that the paintwork of the car was defective.

Gasan Enterprises’ reply was that there was no defect with the car and that the problem could be easily resolved by a good wash. However, the problem with its paintwork remained and Ferriggi complained to Gasan each time he took the car over to them.

In June 2010, he commissioned an independent expert to examine the paintwork under UV light and it resulted that the paintwork of the car was indeed defective.

Ferriggi claimed that the defect reduced the value of the car and if he had known beforehand, he would not have purchased the car.

Faced with this situation, he proceeded to file legal proceedings requesting the court to declare that the car had a ‘redhibitory’ defect, which reduced its value, and that he would not have purchased the car if he had been aware of the defects. He asked the court to rescind the sale and to condemn Gasan Enterprises to refund the purchase price.

Gasan, in reply, claimed that Ferriggi’s legal action was time-barred under article 1431(1) of the Civil Code, as the legal action was not filed in time.

It submitted further that Ferriggi’s claims were unfounded. The car, it said, had no latent defect. Though it was true that the paintwork felt rough to the touch, yet this was not a defect. It said that it offered to repair any damage in order to maintain good customer relations at its own expense but Ferriggi refused.

The court noted that Gasan never admitted that the car was defective nor did it ever accept responsibility either explicitly or tacitly

Gasan maintained that this defect did not reduce the value of the car as it could be easily repaired. In addition, it contended that if the sale were to be rescinded, the court should also consider the 21-one month use of the car by Ferriggi which reduced its value.

The court considered the plea of prescription raised by Gasan Enterprises under article 1431(1)(2) of the Civil Code:

(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.

Ferriggi purchased the car on January 23, 2009, but filed legal action on September 10, 2010. He first noticed the defect in April/May 2009. According to an independent experts’ report dated June 10, 2010:

“Both concurred that the paint on the roof and the bonnet are not the original factory spray. There may be overspray in these areas due to a poor quality spray joband the boot lid was not set properly. Seen under UV light there are black specks in three places on the boot lid and the vertical part of the boot lid is not finished to the same level as the rest of the vehicle. There are also drippings in the corner indicating that the vehicle has had work on it.”

Gasan attributed the problem with the paintwork owing to industrial fall-out and offered to give it a polish, but Ferriggi refused.

Reference was made to case-law: in ‘Darmanin v Spiteri Debono’ dated February 25, 1930, it was held: “Plaintiff had no reason not to sue, even if defendant offered to settle. The term of one month [today six months] was not a term of prescription but of forfeiture: re ‘Schembri v Gatt’ Commercial Court dated November 5, 1926; ‘Emmanuel Camilleri noe v Anthony Calascione noe’ (Commercial Court dated October 29, 1956).”

In ‘Edward Fenech v Gaetano Fenech’ (CA) dated July 4, 1990, the court maintained that the period of one year for the buyer to sue commenced to run from when the buyer could have been aware of the defect. This term was a period of forfeiture and was peremptory.

After the lapse of such period, the buyer had to show that, in the appropriate period, he had informed the seller of the defect and that the seller promised to take the thing back and not contest the existence of the defect. The recognition of the defect by the seller in order to suspend the period of forfeiture had to be clear, formal, explicit and unconditional. Die a quo: In ‘Cushcieri v Gauci’ dated May 21, 1934, reference was made to ‘Fenech v Spiteri’.

This did not mean that the buyer could remain inactive, even when the defect was clearly established. The period commenced to run from when the defect was reasonably noticeable for the purposes of article 1431 of the Civil Code. Re: ‘Pierre Ciantar v Mario Xuereb et’ dated December 12, 2001; ‘Emmanuele Florian v Rosario Desira’ (PA) dated June 9, 1969.

In this case, by September 10, 2010, at the time when legal action was taken by Ferriggi, the time limit had already lapsed. Although Ferriggi was aware of the defect, he remained inactive, save for complaining to Gasan about the defective paintwork. It was only in June, 2010, 13 months after noticing the defect, that he approached an independent expert to issue a report.

The court noted that Gasan never admitted that the car was defective nor did it ever accept responsibility either explicitly or tacitly.

As the problem with the paintwork persisted, Ferriggi should have taken action, earlier, pointed out the court. Re ‘Carmelo Buttigieg v Eucharistic Zammit et noe’, which cited with approval ‘Ciantar v Desira’.

For these reasons, on July 9, 2015, the First Hall of the Civil Court declared that Ferriggi’s legal action was time-barred as it was filed after the time limit under article 1431 of Civil Code and not within the six-month period as required by law. The court upheld Gasan’s plea of prescription.

Dr Karl Grech Orr is a partnerat Ganado Advocates.

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