Article 1728 C.c.Q.: Seller Who Knew of the Defect: Damages

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer.

Civil Code of Québec, art. 1728 C.c.Q.

What this article means

Article 1728 increases the liability of a bad-faith seller. The warranty of quality in article 1726 already lets the buyer of property affected by a latent defect obtain a price reduction or the cancellation of the sale. Article 1728 adds a layer: if the seller knew of the defect or could not have been unaware of it, the seller must also make reparation for the injury suffered by the buyer, that is, pay damages.

The phrase "could not have been unaware" matters: the buyer does not have to prove the seller positively knew of the defect. It is enough to show that, in the seller's position, the defect could not reasonably have been missed. Case law also holds that a professional seller is generally presumed to know the defects of the property they sell: it then falls to the seller to rebut that presumption.

In concrete terms, this article determines how much the buyer can claim. Against a good-faith seller, the claim is essentially limited to the cost of the defect itself. Against a seller who knew or should have known, the other losses caused by the defect are added: expert fees, accommodation during repairs, loss of enjoyment, depending on the evidence. The process starts with the written denunciation of the defect required by article 1739, most often in the form of a demand letter.

What it means for you

If you are the buyer

If you discover a latent defect and clues suggest the seller knew about it (concealment work, hidden traces, a history of complaints, misleading statements), document them carefully: they change the scope of your claim. You can seek not only a price reduction but also the damages the defect caused you.

Denounce the defect in writing within a reasonable time after discovering it (article 1739), before undertaking repairs. Your demand letter should describe the defect, invoke the warranty of quality, quantify your claim and give a deadline to respond, backed by proof of receipt.

If you are the seller

If you are selling property, transparency is your best protection. Disclose known problems in writing before the sale: a disclosed defect is no longer latent, and a buyer who purchases with full knowledge cannot complain about it later. Concealing a known problem instead exposes you to damages that far exceed the value of the defect.

If you receive a claim based on article 1728, examine what the buyer can actually prove about your knowledge of the defect. An occasional good-faith seller is not liable for damages; replying in writing, with the facts, is the first step before any negotiation.

Related articles

• Article 1726 C.c.Q.: Warranty Against Latent Defects
• Article 1729 C.c.Q.: Presumption of Defect Against a Professional Seller
• Article 1739 C.c.Q.: Written Notice of a Latent Defect