The seller knew about the defect and said nothing: what the law says in 7 jurisdictions
You bought a home and found the leak the seller knew about. Italy, France, Germany and Spain give a warranty that works without proving what the seller knew. California makes you prove he knew. New York gives you a form. England gives you caveat emptor.
The problem
The flat was bought, the deed was signed, and then the roof leaks. It emerges that the seller knew perfectly well: everything had been freshly repainted for the viewing, and the neighbours remember the buckets. The buyer wants the price reduced, or the sale undone, and wants to know whether what matters is that the defect was hidden or that the seller hid it.
What they agree on
The one thing all seven jurisdictions agree on is that a defect the buyer could see is the buyer's problem. Italian art. 1490 requires a defect making the thing unfit for its purpose or appreciably reducing its value, and art. 1491 excludes what the buyer knew or could easily recognise. French art. 1641 requires a defaut cache, which the French page defines as one not detectable by a normally attentive buyer on an ordinary examination. Spanish art. 1484 says the seller 'no sera responsable de los defectos manifiestos o que estuvieren a la vista'. German § 434 measures the goods against what was agreed and what is objectively expectable. California's §§ 1572 and 1710 require reliance on something said or suppressed. New York's disclosure form tells the buyer in capitals that it is 'NOT A SUBSTITUTE FOR ANY INSPECTIONS OR TESTS'. A survey is worth more than any of these provisions in every one of the seven systems.
The second point of agreement is narrower than it looks: everywhere, a seller who actively lies is exposed. What differs is whether that is the buyer's only route or his last one.
Beyond that the seven do not agree on anything at all — not on what the buyer must prove, not on what he can ask for, not on how long he has, and not on whether a clause saying the property is sold as it stands is worth the paper. The four civil codes give a warranty that operates without any inquiry into the seller's state of mind; California gives a tort in which the seller's state of mind is the case; New York gives a compulsory disclosure form and a narrow liability for lying on it; England gives the buyer a survey and very little else. Reading the three approaches side by side is the clearest illustration in this whole collection that a shared moral intuition can be built into completely different legal machines.
Where they part company
| Jurisdiction | What its law does | Why it matters |
|---|---|---|
| Italia | The Italian warranty at art. 1490 works whether or not the seller knew anything. His knowledge does one thing only, and it does it in the second paragraph: a clause excluding or limiting the warranty 'non ha effetto, se il venditore ha in mala fede taciuto al compratore i vizi della cosa'. Art. 1495 then adds a second consequence of concealment — the eight-day notice is not required at all where the seller acknowledged or concealed the defect. | An Italian buyer does not have to prove the seller knew in order to win; he has to prove it in order to get past the 'vista e piaciuta' clause in the deed. That is a much narrower thing to prove, and it arises only if the seller relies on the clause. |
| Italy's time limits are the tightest in the group and they run from two different events. Art. 1495: the buyer forfeits the warranty unless he notifies the seller within eight days of discovery, and the action prescribes 'in ogni caso' one year from delivery. | The eight days catch the careful buyer who takes advice before writing; the one year catches the defect that surfaces in the second winter. Concealment by the seller removes the first trap and not the second. The one saving is at the end of art. 1495: a buyer sued for the price may always raise the warranty by way of defence, provided the defect was notified within eight days of discovery and before the year from delivery expired. | |
| France | France gives the buyer the choice of remedy and refuses it to the seller. Art. 1644: 'l'acheteur a le choix de rendre la chose et de se faire restituer le prix, ou de garder la chose et de se faire rendre une partie du prix.' The French page is explicit that the seller cannot impose a repair or a replacement to head off the unwinding of the sale. | Compare the German scheme, where § 437 puts cure first and the buyer normally has to allow it. In France the buyer with a leaking roof can insist on undoing the sale even where the seller offers to fix the roof — and the price reduction, when he chooses that instead, is a fraction of the price reflecting the loss of value, not the cost of the repair. |
| France measures its limitation period from discovery and, in art. 1648, writes no outer longstop into the same article: 'L'action resultant des vices redhibitoires doit etre intentee par l'acquereur dans un delai de deux ans a compter de la decouverte du vice.' Art. 1643 makes the seller liable 'meme s'il ne connaissait pas les vices'. | Two years from discovery is generous compared with Italy's one year from delivery and Spain's six months from delivery. A French buyer who finds the defect in the third winter is inside a period that an Italian or Spanish buyer left long ago. An exclusion clause is in principle valid between two private individuals in France, and ineffective where the seller knew of the defect or is a professional. | |
| Deutschland | In Germany the exclusion clause is the case. § 444 says the seller cannot rely on a clause excluding or limiting the buyer's rights 'soweit er den Mangel arglistig verschwiegen oder eine Garantie fuer die Beschaffenheit der Sache uebernommen hat'. Between private sellers and buyers such a clause is otherwise effective — and the burden of proving Arglist lies on the buyer. | Every private German house sale contains that clause, so in practice the German buyer is in the same position as the Californian one: he must prove what the seller knew. The word 'soweit' then limits the effect — the exclusion does not collapse entirely, only in respect of the concealed defect or the guaranteed quality. The § 444 page notes what actually decides these cases: written questions and written answers before the purchase are worth more than argument afterwards. |
| German concealment does not extend the limitation period, it changes which period applies. § 438(3) provides that where the seller fraudulently concealed the defect the claims are subject to the regelmaessige Verjaehrungsfrist — three years running from the end of the year in which the buyer learned of the claim (§§ 195, 199) — while adding that for a building the five-year period of § 438(1) no. 2 is never undercut. | For a house, ordinary defect claims run five years from handover. Concealment substitutes a period that starts only on knowledge, and can therefore run considerably longer. It is the mirror image of Italy, where concealment removes a notice requirement but leaves the one-year longstop from delivery intact. | |
| España | Spain gives the buyer exactly two options and neither of them is a repair. Art. 1486: 'desistir del contrato, abonandosele los gastos que pago, o rebajar una cantidad proporcional del precio, a juicio de peritos.' Damages are added only where the seller knew of the hidden defects, did not disclose them, and the buyer opts for rescission. | The Spanish page states the omission plainly: the Code does not give a right to require the seller to repair or replace. The reduction is also not the buyer's to fix — it is set 'a juicio de peritos'. And the seller's knowledge changes only how much, not whether: whether he answers at all is decided without it. |
| Two Spanish limits have no counterpart elsewhere. Art. 1484 excludes not only visible defects but also defects that are not visible where 'el comprador es un perito que, por razon de su oficio o profesion, debia facilmente conocerlos'. And Spanish art. 1490 extinguishes the actions six months from delivery of the thing. | Six months from delivery is the shortest period in this comparison by a wide margin, and it runs from handover rather than from discovery: a roof leak that first shows in the following winter can be out of time before anyone knows it exists. The perito exclusion is the only rule in the group that makes the buyer's own trade a defence for the seller — a builder buying a house is held to what a builder should have spotted. | |
| United Kingdom | England has nothing here. Caveat emptor still governs the sale of a house: the seller owes no general duty to volunteer defects, and the buyer's protection is his survey, the replies to pre-contract enquiries, and the Misrepresentation Act 1967 if a reply was wrong. | It makes England the extreme case of the axis this cluster runs along. Italy, France and Spain protect the buyer without asking what the seller knew; Germany asks it only because of the exclusion clause; California and New York ask it directly; England, absent a misleading reply, does not get to the question at all. |
| California | California does not have a warranty here at all; it has a tort, and the seller's mind is an element of it. § 1710 defines deceit to include 'the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact'. § 1572 defines actual fraud as five listed acts committed 'with intent to deceive another party thereto, or to induce him to enter into the contract'. | The starting positions are opposite. An Italian, French or Spanish buyer proves a defect that was hidden and serious; a Californian buyer proves what the seller knew and why he was obliged to say it. Whether a duty to disclose existed on particular facts is, as the § 1710 page says, a question of law and relationship and belongs with a lawyer. |
| Two of the Californian limbs do not require dishonesty. § 1710(2) catches 'the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true', and § 1572(2) catches 'the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true'. § 1710(3) has a second limb — the half-truth — that needs no duty to disclose at all: information volunteered must not mislead by what it leaves out. | 'I thought the roof was fine' is not an answer in California if nobody had ever checked. And a seller who describes the good half of a survey has stepped into the half-truth limb without any duty of disclosure having to be established. Those two edges bring the Californian tort closer to the civil-law warranty than a first reading suggests. | |
| New York | New York answers with paperwork. § 462 requires every seller of residential real property to complete and sign a property condition disclosure statement and deliver it before the buyer signs a binding contract; the form is reproduced in the statute and runs to fifty-six numbered questions, from flood zones and fuel tanks to rot, roof age and the hot water heater. Answers are given 'BASED UPON THE SELLER'S ACTUAL KNOWLEDGE', the form says in capitals that it is 'NOT A WARRANTY OF ANY KIND', and subdivision 3 provides that nothing in the article requires the seller to investigate the property or check any public record. | It is a disclosure regime rather than a quality regime: it obliges the seller to say what he knows and obliges him to nothing else. It is also the only member of the seven that expressly protects the 'as is' bargain — subdivision 1 preserves the parties' freedom to make agreements about physical condition, 'including, but not limited to, agreements for the sale of real property "as is"' — where Italy, Germany and France all disable such a clause against a seller who knew. |
| The liability for that form is deliberately narrow. § 465(2): a seller who provides a disclosure statement, or who provides or fails to provide a revised one, 'shall be liable only for a willful failure to perform the requirements of this article', and then for the buyer's actual damages. § 465(1) preserves every other cause of action at law, in statute or in equity. | Willfulness excludes the honest mistake and the thing the seller did not know, which matches the form's framing of answers as statements of actual knowledge. The measure is actual damages — not the cost of putting the house into the condition the buyer hoped for. And because subdivision 1 leaves the general law untouched, New York's real background rule survives underneath the statute: caveat emptor, with claims for active concealment and fraud sitting on top of it. |
The provision in each country
Each card links to the page that reproduces the official text and explains it in that country's own language.
Italia Codice Civile
- Art. 1490 Codice Civile The seller warrants the thing free of defects making it unfit for its purpose or appreciably reducing its value; an exclusion clause is ineffective if he concealed the defects in bad faith.
- Art. 1495 Codice Civile Eight days from discovery to notify, one year from delivery to sue — but no notice is needed where the seller acknowledged or concealed the defect.
France Code civil
- Art. 1641 Code civil The seller warrants against hidden defects making the thing unfit for its purpose, or reducing that use so much the buyer would not have bought or would have paid less.
- Art. 1644 Code civil The buyer chooses: return the thing and get the price back, or keep it and get part of the price back.
Deutschland BGB
- § 434 BGB Goods are defect-free only if, at the passing of risk, they meet the subjective, the objective and the assembly requirements — agreement alone is no longer enough.
- § 444 BGB A seller cannot rely on a clause excluding the buyer's rights so far as he fraudulently concealed the defect or gave a guarantee of quality.
España Código Civil
- Artículo 1484 del Código Civil The seller answers for hidden defects making the thing unfit or materially reducing its use — but not for visible ones, and not against an expert buyer who should easily have known.
- Artículo 1486 del Código Civil The buyer may withdraw from the contract and recover his costs, or take a proportional reduction fixed by experts; damages only if the seller knew and the buyer rescinds.
California California Civil Code
- CIV § 1710 Deceit is one of four things, including suppressing a fact one is bound to disclose, and telling a half-truth that misleads by omission.
- CIV § 1572 Actual fraud is any of five acts by a contracting party done with intent to deceive or to induce the contract — including suppression of a known truth.
New York Real Property Law
- N.Y. Real Property Law § 462 Every seller of residential real property must complete and deliver a fifty-six question condition disclosure statement before the buyer signs — based on actual knowledge, and expressly not a warranty.
- N.Y. Real Property Law § 465 The seller is liable only for a willful failure to perform the article's requirements, and then for actual damages; every other cause of action survives untouched.
Where there is no answer in the code
A jurisdiction listed here is a finding, not a gap. Either its answer lives outside the corpus — special legislation, case law, municipal rules — or its law simply has no such rule.
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United Kingdom
The courts answer it
Caveat emptor; Misrep. Act 1967
Caveat emptor survives on the sale of a house in England and Wales: there is no statutory warranty of condition and no general duty on the seller to volunteer what he knows. The buyer's routes are a survey, the replies given to pre-contract enquiries, and the Misrepresentation Act 1967 where a reply was untrue — and neither the 1967 Act nor the conveyancing practice around enquiries is in this corpus. The lookup returned nothing.
That's the law in seven places. Now let's settle your problem.
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This page compares provisions of several legal systems in general terms and links to the official text of each. It is not legal advice, it does not tell you which country's law governs your situation, and it takes no account of the circumstances of your case. For a live dispute, consult a qualified lawyer in the jurisdiction concerned.