We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
13 September 2013
The Supreme Court was recently asked to assess whether a buyer of a house could rightfully initiate warranty claims against the seller by reason of defective insulation when the parties had confirmed that the exterior walls of the house had been damaged by moisture.
The case concerned a purchase agreement for a residential building. The parties were aware that the walls in the basement were damaged by moisture and this was confirmed in the purchase agreement.
The buyer subsequently found out that the insulation of the exterior walls in the basement did not comply with the relevant technical standards and thus allowed water to enter the walls, resulting in the water damage. The buyer claimed the cost for repair of the insulation from the seller.
The Consumer Protection Act provides that a consumer can waive its warranty claims only with regard to known defects. The buyer relied on this provision and argued that while being aware of the damage to the walls, he was unaware of the faulty insulation.
The Supreme Court highlighted that, irrespective of consumer protection laws, the parties to a purchase contract could set the yardstick for an objective deficiency to the purchase object. If the parties acknowledge in the purchase agreement that the walls are damp, this does not constitute a defect.
In the case at hand, it must have been obvious to the parties that the water damage could result only from ineffective insulation on the outside. Therefore, the ineffective insulation was also considered a known defect; by accepting that the walls were damp, the consumer had also waived any warranty claims against the seller with regard to the insulation.
The Supreme Court thus upheld the court of appeal's dismissal of action.
For further information on this topic please contact Martin Foerster at Graf & Pitkowitz Rechtsanwälte GmbH by telephone (+43 1 401 17 0), fax (+43 1 401 17 40) or email (email@example.com). The Graf & Pitkowitz website can be accessed at www.gpp.at.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.