In this new installment, we address the issue of the different guarantees that govern the sale of movable or immovable property.
In this sense, it should be noted that, in our legal system, all sales are by law, covered by three different types of guarantee [1] : a) Eviction Guarantee, b) Guarantee for Hidden Defects, and c) Operation Guarantee.
I. Eviction Guarantee
This is a guarantee imposed by law in favor of the buyer, who, once in possession and enjoyment of the acquired property, is sued by a third party trying to deprive him of the property he acquired.
In these situations, the right grants the purchaser a guarantee of a legal nature, that is, it does not require any document issued by the seller, nor does it require that it be included in the contract, so that in case of being sued by someone else who intends to deprive him of his rights over the acquired good, he can summon the seller of eviction, or rather, incorporate him into the judicial process so that he comes out in defense of the thing sold with respect to the claims of the third party who claims to have a better right than the acquirer (procedurally, This guarantee is manifested through the figure known as “call to the guarantor” contained in the Civil Procedure Code) [2] .
The legal basis for this guarantee is found in article 1034 of the Civil Code, which establishes:
Article 1034.- Anyone who has transmitted a real or personal right for consideration, guarantees its free exercise to the person to whom it was transmitted.
Unlike other countries in which a dispossession is required for the eviction guarantee to operate, in Costa Rica through article 1034 transcribed, it is allowed that even in the face of the simple threat by the third party to dispossess the acquired property, it is possible call the guarantor seller in defense of the purchased property [3] .
Clearly, the fundamental requirement to demand this guarantee from the seller is that there is a dispute in which context the “call to the guarantor” can be exercised, excluding the extrajudicial one from its scope of application.
In practice, there is the possibility of a total or partial eviction, for example, we can raise a hypothetical case in which a third party could file a claim on a property bought by B. In this scenario, assuming that the third party actually has a better right over the property, that is, that A sold to B a property over which he had no right (reason that motivates the claim process by its true owner), seller A will be incorporated into the process through the aforementioned “Call to Guarantor ”to defend its position as the true owner of the asset sold against the claim made by the third party. In the event that the claim is declared valid and the property is totally or partially lost,
In summary, eviction is presented as a guarantee of a legal nature that does not require an agreement of the parties. It will only be executed in the event that there is a lawsuit filed by someone outside the sale and whose purpose is to deprive the buyer of any of his rights as the new owner of the acquired property. It is important to reiterate that procedurally, the guarantee of eviction is manifested through the incorporation of the seller to the process, so that he defends the right of the buyer; and in the event that the property is totally or partially lost (total or partial eviction), the seller must respond for the damages suffered by the buyer who is stripped of the property.
II. Guarantee for Hidden Vices
It is a guarantee that consists of the obligation of the seller to respond for all those defects of the good and that are pre-existing to the purchase, but that were not visible to the naked eye, and therefore, were not detected at the time of purchase. good.
The legal basis for this guarantee is found in articles 1082 of the Civil Code, as well as articles 467 and 450 of the Commercial Code and 43 of the Law on the Promotion of Competition and Effective Defense of the Consumer (Law No. 7472).
This guarantee allows the purchaser to cancel the business in a civil business if it shows that there is a circumstance that causes a defect in the consent, that is, if they had known the defect in the object, they would not have bought the property; Or, if the business is of a commercial nature, it allows the buyer to exercise a repeat action , which consists of the return of the money paid and the return of the property. [4]
Specifically in the purchase of goods in commercial matters, greater speed is sought in the event that it is intended to claim the existence of hidden defects, since, by provision of law, the buyer must formulate the claim directly to the seller within a period of 10 days from the delivery of the good, if the seller does not attend the claim, the buyer must file the legal action within 3 months from the delivery of the good. It is important to note that the failure to present both procedures in time is the claim directly before the seller within the 10 days indicated above and the late presentation of the legal action outside of the 3 months, will make the buyer’s right expire. or expired (see article 450 of the Commercial Code).
Finally, in consumer matters, there is a rule that varies the provisions of the Commercial Code, since it establishes that the claim for hidden defects must be made within 30 business days from when the hidden defect was manifested, if not in that period, the right will be declared prescribed (article 43 of Law 7472).
III Performance Guarantee
This is the guarantee that is established for the benefit of the acquirer for any functional deficiency not pre-existing to the purchase of the good and that occur later during the normal use of the good.
The legal basis of this guarantee is found in articles 452 of the Commercial Code and the same 43 already indicated of Law 7472 or Law of Promotion of Competition and Effective Defense of the Consumer.
This guarantee allows the purchaser to demand from the merchant the repair of the item or its replacement .
To demand compliance with a performance guarantee, by law, such claim must be made to the seller within 30 business days after the defect was discovered if we are dealing with a commercial business (article 452 of the Commercial Code), or counted from the date of delivery of the good or the provision of the service for consumer cases (Article 43 of Law 7472), if not, the claim will be declared expired . In addition, the right to make the claim before the judicial headquarters will prescribe within a period of one year, according to subsection a) of article 984 of the Commercial Code.
The guarantee of operation also has special regulations on Consumer matters, specifically in articles 103 to 111 of Decree 37899-MEIC (Regulation to the Law for the Promotion of Competition and Effective Defense of the Consumer), and in relation to durable movable property (equipment, apparatus, machinery, vehicles and tools) the following statements stand out:
“Article 108:
b) During the period of validity of the guarantee, its holder will have the right at least, and as appropriate to:
1. The refund of the price paid .
2. The exchange of the good for another of the same kind , similar characteristics or technical specifications, which in no case may be inferior to those of the product that gave rise to the guarantee.
3. To the free repair of the property “
In addition, always on Consumer matters, the pronouncements of the National Consumer Commission in administrative headquarters have been of great relevance, specifically votes 242-01 and 272-02 in which said Commission condemned a vehicle agency to deliver a new engine or vehicle to the detriment of the repair of the one already delivered. On that occasion, the agency, after the administrative ruling, tried to annul these votes in court, but the conviction was ratified by the Contentious Administrative Court (Sentence 016-2009 of Section IX). On this matter, the Court was express in stating:
“ … Notwithstanding as indicated by the Court of Instance and which is endorsed by this Chamber, this option would be unacceptable [THE REPAIR] , since it would distort the meaning of the guarantee, implying the acceptance by the buyer of a vehicle in different conditions to those originally acquired, totally new with all its parts in the same situation, being that the responsibility of the proper functioning falls on the plaintiff and accepting a repair would be to partially transfer the burden of said responsibility on the consumer, forcing him to accept a good under different conditions to those expected at the time of purchase, especially considering that the vehicle purchased from the plaintiff was a new vehicle … ”
Also through the vote of the National Consumer Commission 047-14, which was a case against another vehicle agency, the Commission attenuated a bit what was said above, to estimate that the merchant has the right to repair the property for a single time. In this regard, the following was indicated:
“ … It is clear that the fulfillment of the guarantee does not consist in constantly repairing the article, firstly because it places the consumer in a state of uncertainty about its proper use and enjoyment, which becomes a violation of the purpose itself. of this legal figure, as a backup of correct operation -at least during the term of its validity-; and, secondly, because what is guaranteed is the quality of the good’s operation and not its repair for an indefinite period of time. For this reasonThe aforementioned regulations authorize a single repair to the merchant, which must be sufficient to correct any damage that, eventually, may occur in the normal use of the product. If a second repair is necessary, what proceeds is to change the item or return the money paid, as decided by the buyer …”
Even recently, in Vote 301-2020 related to a complaint against a third vehicle agency, the National Consumer Commission reiterated:
“ … The objective of the execution of the guarantee is not the repeated repair of the property, because this would entail binding the recipient to a single mechanism, which is not justified since for that the regulation analyzed supra foresees two additional alternatives that also had to apply. Along these lines, it is clear that, after the first intervention, if the car in question presented other deficiencies, what corresponded was to change the unit or repeat what was paid, since the purpose of the figure under discussion did not materialize, that it was their full and peaceful use and enjoyment … ”
In the same sense, you can also consult the judgments of the First Chamber 999-2005 (ordinary claim against Auto Mercantil), and 1470-2011 (ordinary claim against Veinsa), both declared valid, the first ordering the return of the price and the second the reimbursement of the amount of repair.
In addition, we consider it important to mention that, at present, file 20-021257-0007-CO is pending before the Constitutional Chamber corresponding to an action of unconstitutionality filed against article 109 of Decree 37899-MEIC that we previously outlined (Regulation to the Law for the Promotion of Competition and Effective Defense of the Consumer), about the guarantee of operation in durable movable property.
In said action, the plaintiff maintains that article 109 of the Regulation violates the principle of legal reserve, while Law 7472 in its article 53 only establishes the possibility that the property is repaired or the money be returned by the merchant, not replace it, an aspect that was introduced by the Regulation without being foreseen in the Law as a rule of superior rank.
In the unconstitutionality action, it is analyzed whether the regulation really exceeds the scope of the law, which does not define or regulate what the duration, conditions or procedures should be to make the guarantees effective; it also restricts and prohibits the possibility of agreeing conditions between the merchant and the consumer, restricting the freedom of trade and emptying the right to private contracting of content.
In any case, we consider it appropriate to mention that said unconstitutionality action has not yet been resolved, but that it clearly illustrates the degree of specialization that a figure such as collateral reaches in the acquisition of goods (in the case of reference, of durable movable goods in a consumer relationship).
With this, we hope to adequately convey the edges involved in the analysis of the different guarantees that govern the sale of movable or immovable property that, as we have seen, evidently entails a background of high content and legal density, depending on whether it is a civil, commercial or commercial sale. consumer; depending on whether it is real estate, movable, and if the latter are durable or not; and finally, depending on whether it is a malfunction, a hidden defect that precedes the sale or a malfunction in the property after its normal use.
Litigation & Arbitration Department. You can contact us through the following emails:
Andrés Martínez Chaves, [email protected]
Jose Pablo Valverde Marín, [email protected]
Gerald Hoffman Guillen, [email protected]
Josué Barahona Vargas, [email protected]
[1] In this regard, judgments 999-2005 and 1470-2011, both of the First Chamber, can be consulted.
[2] Treaty of Contracts. Alberto Brenes Cordoba
[3] Second Civil Court Section I.- Judgment 111 at 9:50 am on April 23, 2008
[4] In this regard, the sentences 00999 at 14:55 hrs can be consulted. December 21, 2005 and 01470 at 09:00 hrs. of November 8, 2011, both dictated by the First Chamber of the Supreme Court of Justice
