Louisiana Law Review Volume 54 | Number 1 September 1993 Redhibition and Implied Warranties Under the 1993 Revision of the Louisiana Law of Sales George L. Bilbe Repository Citation George L. Bilbe, Redhibition and Implied Warranties Under the 1993 Revision of the Louisiana Law of Sales, 54 La. L. Rev. (1993) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol54/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Redhibition and Implied Warranties Under the 1993 Revision of the Louisiana Law of Sales George L. Bilbe" I. INTRODUCTION In the 1993 Regular Session, the Louisiana Legislature passed Act 841, a "comprehensive revision of Civil Code Articles on Sales"' formulated by the Louisiana State Law Institute.2 The Governor has signed the measure,3 and it will become effective on January 1, 1995. The legislation has a number of noteworthy provisions, and the articles found in the enactment's "Redhibition" chapter4 are clearly among the most significant. Many of these new articles, like their counterparts in the Civil Code of 1870, concern the responsibilities of sellers who have sold items having latent vices or defects. In addition to this traditional subject matter, the new redhibition chapter contains provisions recognizing express and implied warranties' including an implied warranty of reasonable 'fitness for ordinary use6 and an implied warranty of fitness for a buyer's particular use or purpose.7 Further, a violation of any of these warranties is treated as a breach of a contractual commitment.' Under the provisions expressed in terms of traditional concepts of redhibition, however, a seller who lacked knowledge of redhibitory defects is responsible at most for the reimbursement of the purchase price and the incidental expenses of the sale.9 Thus, it will be necessary in analyzing the revision to determine the relationship of the warranty against redhibitory defects and the new warranties providing basis for larger recoveries. This article examines both the provisions concerning traditional concepts of redhibition and the articles describing warranties not previously recognized in the Louisiana legislation. Effort is made to identify instances where the law has Copyright 1993, by LOUIsIANA LAW REVIEW. * Professor of Law, Loyola University School of Law, New Orleans, Louisiana. The author expresses appreciation to Joseph G. Jevic III, for his able research assistance. 1. The legislation is so described in H.B. 106, Reg. Sess., 1993, the source of the enactment. 2. In addition to preparing the revised articles and their accompanying comments, the Law Institute has supplied a lengthy "Introduction" addressing both the pre-existing law and the revision. 3. Approval occurred on June 23, 1993. 4. Chapter 9, entitled "Redhibition," consisting of Revised La. Civ. Code arts. 2520-2548. 5. Revised La. Civ. Code arts. 2529 (express) and 2524 (implied). 6. Revised La. Civ. Code art. 2524. The article is quoted infra text following note 80. 7. Id. 8. Id. See also discussion infra text at notes 96-100. 9. See text of La. Civ. Code art. 2531 (1870) quoted infra note 18 and discussion infra text at note 96. LOUISIANA LAW REVIEW [Vol. 54 been changed and to locate provisions needing clarification or other legislative refinement. II. REDHIBITION A. Definition The new legislation, like its antecedents,10 affords remedies to buyers who have purchased items having latent" "vices" or "defects." Revised Article 2520 provides: The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price. The second paragraph's definition of a redhibitory defect does not significantli alter the 1870 Code's requirement that the defect render the item "absolutel: useless, or its use so inconvenient and imperfect, that it must be supposed tha the buyer would not have purchased it, had he known of the vice."' 2 Th revision's inconsequential changes, as the Law Institute's comments provide certainly do not "change the law."' 3 Similarly, the third paragraph's identifica tion of a category of redhibitory defects providing basis only for a pric, reduction-as contrasted with those providing basis for rescission-is consisten with the antecedent legislation. The 1870 Code does not define shortcoming 10. The 1870 Code addresses "Redhibition" in articles 2520-2548. 11. The Code of 1870, in Article 2521, provides that "[alpparent defects. that is. such as tt buyer might have discovered by simple inspection, are not among the number of redhibitory vices The revision's counterpart, Article 2521, reads: "The seller owes no warranty for defects in the thin that were known to the buyer at the time of the sale, or for defects that should have been discovere by a reasonably prudent buyer of such things." 12. La. Civ. Code art. 2520 (1870) (emphasis added). The article provides: Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold. which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it. had he known of the vice. 13. Comment (a) to Revised La. Civ. Code art. 2520 so provides. '1993] REDHIBITION & IMPLIED WARRANTIES providing basis only for price reductions. However, its Article 2541 permits a buyer to limit his demand to the reduction of the price "[w]hether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value."' 4 Also, the 1870 Code clearly permits the judiciary "in a redhibitory suit" to "decree merely a reduction of the price.' 5 The third paragraph of the new provision seems intended to emphasize that relatively insignificant defects, while justifying monetary adjustments, should not be basis for rescission. However, the differentiation established in the second and third paragraphs as to the severity of defects was not intended to compel rescission in all instances where a buyer would not have purchased if he had been aware of the defects in question. Even in these situations, revised Article 254116 affirms the continuing existence of judicial discretion to deny rescission and to reduce the price. B. Good Faith Seller's Opportunity to "Repair, Remedy, or Correct" Defects Under revised Article 2531,17 the "seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the'defect." Further, the buyer can obtain rescission only if the seller "is unable or fails" to repair, remedy, or correct the defects involved. Article 2531 8 of the 1870 14. La. Civ. Code art. 2541 (1870). 15. La. Civ. Code art. 2543 (1870). 16. Revised Article 2541 provides: A buyer may choose to seek only reduction of the price even when the redhibitory defect is such as to give him the right to obtain rescission of the sale. In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price. 17. Revised Article 2531 provides: A seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, less the credit to which the seller is entitled if the use made of the thing, or the fruits it has yielded, were of some value to the buyer. A seller who is held liable for a redhibitory defect has an action against the manufacturer of the defective thing, if the defect existed at the time the thing was delivered by the manufacturer to the seller, for any loss the seller sustained because of the redhibition. Any contractual provision that attempts to limit, diminish or prevent such recovery by a seller against the manufacturer shall have no effect. 18. La. Civ. Code art. 2531 (1870) provides: The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it. LOUISIANA LAW REVIEW [Vol. 54 Code, since its amendment in 1974,"9 has likewise assured the good faith seller of an opportunity to remedy defects in the item sold.20 Because there is no significant difference between the revised article and the 1974 amendment,' , much of the existing jurisprudence concerning the seller's repair opportunities will have relevance to disputes under the new legislation.