2014 QCCQ 2352, 2014 QCCQ 2352

Herman c. Efran 2014 QCCQ 2352 COURT OF QUEBEC (Small Claims Court) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL No: 500-32-134214-123 DATE: March 13, 2014 ______________________________________________________________________ BY THE HONOURABLE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ THOMAS HERMAN Plaintiff v.

AMRO EFRAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Thomas Herman claims from Amro Efran the cost of the repairs made to a high efficiency wood stove he bought from Amro Efran. [ 2 ] Mr. Herman claims the stove had hidden defects. [ 3 ] On October 27, 2011, Mr. Herman purchased a Vermont Castings catalytic wood burning stove from Mr. Efran following a verbal agreement. [ 4 ] The sale price for the stove was $1,050.00. [ 5 ] Mr.

Efran represented that the stove was in good order except for one part that had to be changed. [ 6 ] The part had been bought by Mr. Efran and was sold with the stove. [ 7 ] Mr. Herman brought the stove home and tried to change the part, which could not be done easily. [ 8 ] He started dismantling the stove and noticed that many metal parts were bended and twisted showing signs of overheating. [ 9 ] Mr. Herman contacted Mr. Efran to advise him of the problems with the stove. Mr. Efran was surprised. [ 10 ] Mr.

Herman, who is quite able manually, bought the replacement parts [1] and proceeded to make the repairs. [ 11 ] The invoices for the replacement parts total $900.57 [2] . [ 12 ] On January 26, 2012, Mr. Herman sent a "mise en demeure" [3] and claimed the reimbursement of the invoices for the parts. [ 13 ] Mr. Efran refused. He claims that he bought the stove in 2009 and that the stove had always been working properly. He decided to sell the stove only because it was generating too much heat for his house. He doubts that the stove had any problems. [ 14 ] However, the pictures produced by Mr.

Herman, his testimony, the testimony of his witness Jan Krupinski and the invoices produced confirm the defects of the stove. [ 15 ] The fact that the stove was generating too much heat at Mr. Efran's place also supports the fact that it had overheated. [ 16 ] The balance of the evidence favours Mr. Herman. [ 17 ] The vendor of a merchandise is responsible for the latent defects of the good sold even if he was unaware of it.

Article 1726 of the Civil Code of Québec states: 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. [ 18 ] FOR THESE REASONS, THE COURT: GRANTS the claim of Thomas Herman; CONDEMNS the Defendant Amro Efran to pay to the Plaintiff Thomas Herman, the sum of 1 033,00 $ which sum includes the costs of the replacement parts of 900,57 $ plus the costs of the registered mails (10,18 $ and 10,18 $), photocopies (5,49 $) and the costs of the bailiff (106,58 $); THE WHOLE WITH the judicial costs of 103,00 $. __________________________________ MARIE MICHELLE LAVIGNE, J.C.Q Date of hearing: February 24, 2014