Latent defects in movable property: The Actio Redhibitoria and its time bar

In its judgment delivered on the 24 April 2026, in the names of Mary Rose Falzon (the “Plaintiff”) vs Nissan Motor Sales Limited (the “Defendant”), the First Hall Civil Court (the “Court”), presided over by Madame Justice Dr Audrey Demicoli, considered the requirements of the actio redhibitoria in respect of latent defects in a thing sold under Articles 1424 to 1432 of the Civil Code, Chapter 16 of the Laws of Malta, and in particular the application of the six-month forfeiture period prescribed by Article 1431 thereof.

The case concerned the sale of a Nissan Qashqai (the “Vehicle”) by the Defendant to the Plaintiff by virtue of a contract dated 6 March 2019, for the price of €25,500. As part of the wider commercial arrangement, the Plaintiff also traded in two further vehicles, and obtained bank financing in order to fund the acquisition.

The Plaintiff submitted that, sometime after the purchase, the Vehicle began to manifest defects, in that it would frequently switch off, and that it had to be returned to the Defendant on a number of occasions for repairs to be carried out. According to the Plaintiff, the underlying problem related to the Vehicle’s emissions system, and although the Vehicle was covered by a manufacturer’s warranty and the Defendant repeatedly attempted to resolve the issue, the same fault kept recurring. The Plaintiff further alleged that whilst the Vehicle was in the Defendant’s possession, the bumper was damaged by a third party as the Vehicle was being driven, and that overall she had been deprived of the use of the Vehicle for almost two years.

Following negotiations between the parties, the Defendant offered either to repair the affected components of the emissions system or, alternatively, to provide the Plaintiff with a new vehicle on the payment of an additional €5,000. The Plaintiff rejected this proposal on the basis that, in her view, repairs were merely a temporary remedy and would not eliminate the defect, and that it would be unreasonable to require her to pay an additional sum for a new vehicle when she was still servicing the loan in respect of the original purchase. The Plaintiff therefore returned the Vehicle to the Defendant and, by sworn application filed on 24 June 2024, instituted proceedings seeking, inter alia, a declaration that the Vehicle was, at the time of sale, affected by a latent defect rendering it unfit for its intended use or such that, had she been aware of it, she would not have purchased it, together with an order for the restitution of the price paid, including that part of the price represented by the two vehicles traded in.

The Defendant raised both a preliminary plea and pleas on the merits. As a preliminary plea, the Defendant submitted that, in so far as the action constituted an actio redhibitoria, it was time-barred by virtue of the six-month period contemplated under Article 1431 of the Civil Code. On the merits, the Defendant denied that the Vehicle was affected by any latent defect at the time of sale, denied having ever accepted the existence of a defect, and contended that any issues that had arisen had in any event been resolved and that it had at all times honoured its warranty obligations and even offered to extend the warranty.

As a preliminary matter, the Court considered which legislative regime applied to the action. Although the Plaintiff was a consumer purchasing a vehicle for personal use, the language used in the sworn application and in her affidavit – which spoke variously of “serious defects”, “hidden defects” and “latent defects” – made it clear that the action was based on the provisions of the Civil Code relating to hidden defects and not on the Consumer Affairs Act, Chapter 378 of the Laws of Malta. Referring to the recent appellate decision in Warren Tabone Valletta vs C. Fino & Sons Ltd (Court of Appeal (Inferior Jurisdiction), 12 June 2024), and the earlier first-instance judgment in Charles Azzopardi et vs J.C.R. Limited (First Hall Civil Court, 11 April 2016), the Court reiterated that the Consumer Affairs Act addresses non-conformity with contractual specification and with the use that a consumer might reasonably expect, whereas the Civil Code regulates contractually agreed quality and hidden defects. The Plaintiff having framed her claim by reference to a hidden defect rather than non-conformity, the Civil Code (and not the Consumer Affairs Act) was applicable.

Turning to the substantive law, the Court referred to Article 1424 of the Civil Code, which provides that the seller is bound to warrant the thing sold against any latent defects which render it unfit for the use for which it is intended, or which diminish its value to such an extent that the buyer would not have bought it, or would have offered a smaller price, had he been aware of them. Pursuant to Article 1426, that liability extends even to defects of which the seller was unaware, save where the parties have agreed otherwise. The Court found that no agreement excluding such liability had been made between the parties.

Drawing on a line of Maltese authorities, including Helen Micallef vs Godfrey and Caroline Debattista (First Hall Civil Court, 27 October 2005), Karl Rizzo Naudi et vs Matthew Miceli Demajo (First Hall Civil Court, 20 June 2017) and Joanna Camilleri vs Paulmid Developments (Court of Magistrates (Gozo), 29 May 2012), the Court reiterated that the elements of a successful actio redhibitoria are the following:

• the sale of a thing affected by a defect existing at the time of sale;
• the defect must be grave, either in the objective sense that the thing is rendered unfit for its intended use, or in the subjective sense that the buyer, had he been aware of the defect, would not have bought the thing or would have paid a lesser price; and
• the defect must be hidden, in that it could not have been detected by a buyer of ordinary diligence carrying out a careful examination as a bonus paterfamilias would do.

The Court emphasised that a minor or insignificant defect, nor can a defect which was apparent or which the buyer could have detected through reasonable diligence form the basis of an actio redhibitoria. A buyer who lacks the technical competence to inspect the thing himself is expected to seek the assistance of someone who is competent in the matter. The burden of proving each of these elements lies upon the buyer.

In considering whether the alleged defect was grave, the Court reviewed the evidence and noted that, although the Plaintiff testified that the engine warning light had been illuminating since at least February 2022, and that she had returned the Vehicle to the Defendant on a number of occasions in connection with the same fault, no evidence was produced to show that the Vehicle could not be driven safely or that it was unfit for its intended use. To the contrary, the Defendant’s after-sales manager, mechanics and senior technician each testified that the Vehicle was safe to drive, that no recall had been issued in respect of vehicles of that model, and that there was no risk of the Vehicle catching fire. The after-sales manager further testified that the Defendant had test-driven the Vehicle over an extended period without encountering any difficulty.

The Court emphasised that, by virtue of Article 562 of the Code of Organization and Civil Procedure, the burden of proving any fact lies on the party alleging it, and that pursuant to Article 559, parties are required to bring before the Court the best evidence available to them. Citing Anthony Xerri vs Claudette Spencer et (Court of Appeal, 18 September 2024) and Lombard Bank Malta p.l.c. vs Gozo Caterers Limited et (Court of Appeal, 27 February 2024), the Court observed that it is not the function of the Court to direct parties as to which evidence to adduce, and that the Plaintiff could have requested the appointment of a court-appointed technical expert pursuant to Articles 644 and 674 of the Code of Organization and Civil Procedure, or alternatively could have produced an expert appointed ex parte. Having failed to do so, the Plaintiff had not discharged her burden of proving that the alleged defect was grave within the meaning of the law. While the Court was prepared to accept that the defect could conceivably be characterised as a hidden one, in light of the fact that diagnosis required electronic equipment, the Plaintiff had not satisfied the cumulative requirement of gravity, and on this basis alone the action was bound to fail.

The Court held that, even if the alleged defect had been both grave and hidden, the actio redhibitoria would in any event have been precluded by the lapse of the forfeiture period prescribed under Article 1431 of the Civil Code. Article 1427 of the Civil Code affords the buyer a choice between the actio redhibitoria (for rescission and restitution of the price) and the actio aestimatoria (for a reduction of the price), and it was clear from the pleadings and from the Plaintiff’s affidavit that she had elected to bring the former. Article 1431 in turn provides that, in the case of movable property, that action must be brought within six months running, where the defect is not apparent at the time of delivery, from the date on which the buyer could have discovered the defect.

Referring to Odette Grixti vs Mario and Therese Rodgers (First Hall Civil Court, 4 March 2011), Paul Sultana vs Nissan Motor Sales Limited (First Hall Civil Court, 28 October 2021), and the longstanding appellate decision in Marie Rose Muscat Baldacchino vs E. Vincenti Kind (Commercial Court of Appeal, 18 October 1963), the Court reiterated that the period runs from the moment at which the buyer could reasonably have discovered the existence of the defect, and not from the moment when its underlying cause is definitively ascertained. Where a manifestation of the defect is such as to give rise, in a reasonable person, to a well-founded suspicion that the thing is affected by a defect of a certain gravity, the buyer is expected to investigate the nature and extent of that defect promptly, in the interest of contractual certainty.

The Court further reiterated, by reference to Benjamin Cassar Bernard vs Allan Magro (4 March 2015), Norman Spiteri noe vs Avukat Dottor Pierre Lofaro et noe (14 October 2009) and Carmelo Dimech vs Francis Xuereb (Court of Civil Appeal (Superior), 15 December 1997), that the six-month period contemplated under Article 1431 is one of forfeiture (dekadenza) and not of prescription, with the consequence that it cannot be interrupted by a judicial letter or by any analogous step. The buyer can defeat the running of the period only by establishing that, within that period, the seller acknowledged the existence of the defect or undertook to take the thing back; any such acknowledgement must, moreover, be clear, formal, explicit and unconditional.

Applying these principles to the facts of the case, the Court concluded that the Plaintiff could have been aware of the alleged defect at the latest by October 2023, by which time the Vehicle had been returned to the Defendant for the same fault on multiple occasions over a period of several months. This conclusion was reinforced by the documentary evidence produced by the Plaintiff herself, which showed that, by August 2023, she was already corresponding with the Defendant through her lawyer, and that by 1 November 2023 she had formally demanded restitution of the price paid. The six-month forfeiture period accordingly began to run no later than October 2023, with the consequence that the action filed on 24 June 2024 was instituted well outside the prescribed period and could not, in any event, succeed.

In light of the foregoing, the Court rejected each of the Plaintiff’s claims, upheld the Defendant’s pleas in their entirety, and ordered the Plaintiff to bear all the costs of the proceedings.

Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This article was first published in ‘the Independent’ on 13/05/2026.