2012 QCCQ 349, 2012 QCCQ 349

Hanson c. Charad 2012 QCCQ 349 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-124211-105 DATE: January 23, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ FRANCES HANSON Plaintiff v.

MORTON CHARAD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Frances Hanson claims from Morton Charad an amount of $1,800 alleging latent defects affecting the car sold. [ 2 ] In defence, Mr Charad pleads having no contractual link with Ms Hanson, the purchaser of the car being her grandson, Andrew Jones. Also, he refers to the contract of sale in which the legal warranty of quality is excluded.

Finally, he reproaches Ms Hanson and her grandson for not having the car inspected before its purchase. [ 3 ] Also, Mr Charad files a cross-demand asking $4,000 as the "value of main parts of car minus the amount paid to me by the purchaser". [ 4 ] After reviewing the evidence adduced, the Court concludes that the grounds of contestation of Mr Charad are well founded both in fact and in law. [ 5 ] The contract of sale of the Toyota Avalon is signed on June 17, 2010, between Andrew Jones and Morton Charad.

Even though Mr Jones was 17 years old on June 17, 2010, he was legally authorized to enter into this contract, pursuant to

article 157 of the Civil Code of Québec (hereinafter " C.C.Q. "): " 157.

A minor may, within the limits imposed by his age and power of discernment, enter into contracts alone to meet his ordinary and usual needs." [ 6 ] This being the case, even though Ms Hanson paid the price of the car, it appears clearly that the contractual relationship following said contract is between Mr Charad and Mr Jones. [ 7 ] Thus, Frances Hanson has no legal interest in the present case and cannot sue on her personal behalf pursuant to said contract of sale. [ 8 ] Even if there was a contractual relationship between Ms Hanson and Mr Charad, the action in the present instance would have been dismissed for the following reasons. [ 9 ] The contract of sale provides, in particular: "The vehicle is sold AS IS and without warranty as the vehicle is 13 years old." [ 10 ] The parties to a contract may add, diminish or exclude the legal warranty of quality, under

article 1732 C.C.Q.: " 1732. The parties may, in their contract, add to the obligations of legal warranty, diminish its effects or exclude it altogether but in no case may the seller exempt himself from his personal fault." [ 11 ] This being the case, Ms Hanson and Mr Jones cannot complain of any latent defect allegedly affecting the car sold. The legal warranty of quality is expressly excluded. [ 12 ] Finally, Ms Hanson's action is based on

article 1726 C.C.Q.: " 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without any need of expert assistance." [ 13 ] Before purchasing any good or "property", a prudent and diligent buyer must examine it. If he does not have the proper qualification to do it, he must have recourse to a competent person.

If a buyer fails to execute this imperative obligation of examining the object of the sale, he is in a fragile legal position. [ 14 ] In the present case, Ms Hanson admits not having proceeded to any inspection of the vehicle sold, before her grandson signs the contract of sale.

This non-execution is fatal to the recourse based on the legal warranty of quality. [ 15 ] As for the cross-demand, the Court cannot grant it because the consent exchanged by the parties, in particular as for the sale price, was given "in a free and enlightened manner" (art. 1399 C.C.Q.). [ 16 ] Given all of the above, the Court concludes that Ms Hanson's application and Mr Charad's cross-demand are ill founded, both in fact and in law, contrary to Mr Charad's grounds of contestation. Exercising its judicial discretion, the Court does not impose any cost.

THEREFORE, the Court: DISMISSES Frances Hanson's application; DISMISSES Morton Charad's cross-demand; THE WHOLE , each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing: January 12, 2012