Facts
In a mixed contract of sale and contract for work concerning a plot of land with a house under construction, the court had to determine:- The interpretation of a clause transferring the obligations of the tradesmen regarding the buyer's new construction to the seller.
- The allocation of the burden of proof regarding compliance with the deadline for notifying defects, confirming and specifying the case law of the Federal Tribunal.
- The significance, for the starting point of the limitation period under Art. 371(2) CO, of a clause providing for the transfer of profits and risks on a specific date corresponding to the promised date of completion of the house.
Considerations
The court ruled that the clause transferring the tradesmen's obligations did not constitute a general exemption from the seller's warranty, but only an assignment of the right of recourse against the tradesmen. The seller therefore remained liable to the buyer, who could assert the assigned rights against the tradesmen.
Regarding the deadline for notifying defects, the court confirmed that the burden of proof lies with the buyer. However, since the…