The consequences of the defective purchase

Articles 14/11/2022

The buyer wants the purchase of a good to be a positive feature of his daily life. However, the result is that, as a result of the transaction above, not as rare as would be expected and desirable, the acquisition of a defective item may occur: “an item that suffers from a defect that devalues it or prevents it from fulfilling the purpose for which it is intended or, furthermore, that does not have the necessary qualities and/or qualities assured by the seller for the fulfilment of that purpose” – as provided in Articles 913 and following of the Civil Code.

Therefore, it is essential to analyse the mechanisms held by the buyers to restore, or in some way compensate, the damage/injury caused to them.

Firstly, as set out in Article 916 of the Civil Code (C.C.), for the buyer to be able to annul the transaction based on the existence of defects in the thing that is the object of the purchase and sale, the buyer must report the defect or lack of quality of the item to the seller, unless the seller has acted with intent.

For this purpose, in the case of a movable good, the buyer must report the defect to the seller within thirty days of becoming aware of the defect and within six months of delivery of the product. Therefore, we are talking about a period of limitation the buyer must manage to exercise the rights arising from the sale of the defective item.

In the case of immovable property, the periods for termination are one year after becoming aware of the defect and five years after delivery of the property.

Returning to the question of movable property, except for situations involving fraudulent misrepresentation, an action for an annulment due to simple error expires, according to Article 917 of the Portuguese Civil Code, at the end of any of the time mentioned above periods, without the purchaser has filed a complaint, or after six months have elapsed.

Furthermore, as has been widely understood by Portuguese legal scholars and case law, the six-month limitation period must apply extensively, not only to the action for an annulment but also to actions seeking to obtain repair or replacement of the thing, or even a reduction in the price and/or payment of damages for breach of contract.

It should also be noted that the issue of voidability due to a simple mistake, in respect of the legal regime of the sale of a defective thing, according to articles 913 and following of the Civil Code, is outside the scope of Decree-Law nr. 84/2021 of October 18, which regulates consumer rights in purchasing and selling digital goods, contents and services since there is no purchase and sale contract between a professional and a consumer.

The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.


Practice Areas

  • Civil Litigation