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Québec courts constantly reaffirm the obligation for the main plaintiff, but also for the plaintiff in warranty, to send a notification letter before beginning the repairs following the discovery of a latent defect


Civil and commercial litigation

The notification of a hidden or latent defect to the vendor is one of the most fundamental obligations in such matters and is provided for in section 1739 of the Québec Civil Code. It should be noted that this obligation applies not only to the buyer but also to the vendor being sued, if he wishes to bring an action in warranty against the previous owner.

Indeed, courts have even rejected actions in cases where this notification (or denunciation) was not suitably accomplished by the plaintiff. The idea here is to enable a defendant to see the alleged hidden defect for himself. This will give him the option of taking the necessary corrective measures in order to avoid a legal dispute.

Otherwise, if placed before repairs that have already been completed without his knowledge, the vendor, and even a former owner, as the case may be, may wish to raise an issue of legitimacy. Indeed, how can they reasonably verify that the cost of the repairs claimed were actually incurred or that the repairs were actually done, or that the alleged defect in question even existed?

For these reasons, better to invest more time in fully informing the relevant stakeholders of the defect at the time of discovery, rather than risk that a court is forced to reject the application in the future.

Harry Karavitis, Attorney-at-Law
Alepin Gauthier Avocats inc.

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