Warranty due to promised qualities in the sale of a property

Facts

This decision of the 1st Civil Court of the Swiss Federal Tribunal concerns a dispute between Mr. Tutzer (the plaintiff) and Mr. Hanselmann (the defendant) regarding the sale of a property. The plaintiff claims that the defendant did not comply with the promised qualities of the sold property and that he is therefore not bound by the obligation to inspect and notify provided for in Art. 201 CO. The Federal Tribunal must determine whether Art. 201 CO, which obliges the buyer to inspect the condition of the thing and to notify defects, also applies when it comes to promised qualities.

Considerations

The Federal Tribunal rejects the plaintiff's argument. According to the Tribunal, the wording of the law, in particular of Art. 201 CO, does not allow considering that this provision does not apply to warranties on promised qualities. Art. 201 CO applies generally to all defects, whether they concern promised qualities or characteristics resulting from the purpose of the sold item.

This interpretation is in line with the legislator's intention, which aims to protect the seller by informing him quickly of the defects so that he can take the necessary measures. This need to protect the seller is the same, whether the defect concerns a promised quality or a characteristic resulting from the purpose of the item.

Thus, the fact that the seller has promised certain qualities does not exempt the buyer…