Purchase of a house with a construction volume lower than advertised

Facts

J.H. Kunz AG sold a villa to Mr. Baginski, indicating that the construction volume was approximately 2,500 m3. However, the house built actually measured only 1,850 m3. After discovering this difference, Mr. Baginski sued J.H. Kunz AG for damages due to the reduced value of the purchased property.

Considerations

The FSCA considers that the declaration of the construction volume constitutes a warranty on the part of the seller under art. 197 CO, applicable by analogy to the sale of real estate (art. 221 CO). This warranty is not subject to the condition that the deficiency in content renders the object unfit for the intended use or significantly reduces its value. It is sufficient that the declaration has influenced the buyer's decision to acquire the property or to accept the conditions.

Although quantity indications do not in themselves constitute material defects within the meaning of art. 197 et seq. CO, the FSCA considers that when they are used to describe the object sold, as is the case with the construction volume of a house, they may give rise to warranty claims. Art. 219 paras. 1 and 2 CO, which provides a special regime for differences in surface area, does not preclude the application of art. 197 CO in this case, as the construction…