Latent defect

In the law of the sale of property (both real estate and less it can be shown that the buyer was independently
personal property or chattels) a latent defect is a fault aware of the defect and completed the transaction nev-
in the property that could not have been discovered by a ertheless.
reasonably thorough inspection before the sale. In construction contracting a latent defect is dened as a
The general law of the sale of property is caveat emp- defect which exists at the time of acceptance but cannot
tor (let the buyer beware) and buyers are under a general be discovered by a reasonable inspection.[1]
duty to inspect their purchase before taking possession.
However, it is understood at law that inspection is often
not sucient to detect certain deciencies in the product 1 References
that can only be discovered through destructive testing
or other means that a seller could not reasonably be ex- [1] Federal Acquisition Regulation (FAR) PART 46
pected to allow under normal conditions. For example, QUALITY ASSURANCE (PDF). p. 2. Archived from
wood beams and interior brickwork often cannot be fully the original (PDF) on 2014-04-07.
assessed without destructive testing, and it would be un-
reasonable for the seller to allow the buyer to destroy part
of the property in order to discover such defects.
As such, the law expects that buyers will protect them-
selves in the sales contract against defects they cannot
possibly be expected to assess prior to purchase. As such,
the term latent defect is often used as part of the guar-
antee clauses in a sales contract so that the buyer can re-
cover damages from the seller if defects turn up in the
property after the sale. For example, the seller may be
required to pay for repairs of any such damage.
In Common Law, there is no automatic right for a buyer
to claim against a seller for such latent defects when they
are discovered, absent an agreement in contract. Civil
Law in some jurisdictions (Quebec, Canada) does pro-
vide for such an automatic right unless a property is sold
without guarantee as to its quality. However, if a latent
defect is discovered, there is often a presumption against
the seller when a claim is made in misrepresentation that
the seller knew about the latent defect. As such, the seller
is required to show that he or she could not possibly have
known of the defect, rather than the buyer having to show
that the seller did know about the defect. However, if it
can be shown the seller could not have known about the
defect (and was not wilfully blind to the possibility) then
the buyers claim will not succeed.
However, when the defect could have been discovered by
the buyer by a thorough inspection (a "patent defect"), the
buyer cannot possibly succeed in a claim against the seller
unless the seller actively took steps to hide the defect from
a normal inspection.
In all cases, where a seller actively misrepresents the con-
dition of the property, such as by taking steps to make an
inspection impossible or by lying about problems when
directly asked, the buyer will almost always succeed un-

1
2 2 TEXT AND IMAGE SOURCES, CONTRIBUTORS, AND LICENSES

2 Text and image sources, contributors, and licenses

2.1 Text
Latent defect Source: https://en.wikipedia.org/wiki/Latent_defect?oldid=755865654 Contributors: Jerzy, SteveHFish, Vegaswikian, East-
law, Kyle the bot, Bearian, Natg 19, Isaac.san.fran, Addbot, Misterx2000, MrOllie, Luckas-bot, Yobot, JackPotte, AnomieBOT, Diannaa,
Mean as custard, EmausBot, Bamyers99, Defective Detective, ShaunRobinson1968, AdrianPS, Yenshen, WSKILVR, JJMC89, Rcg8285
and Anonymous: 10

2.2 Images
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Contributors:
Created from scratch in Adobe Illustrator. Based on Image:Question book.png created by User:Equazcion Original artist:
Tkgd2007

2.3 Content license

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