12 Apr Quality defects in commercial sales, what term do I have to make a claim?
A mercantile sale is a sale in which the purchasing company acquires a good to resell it. We are talking about the sale of merchandise or products to be integrated into our production process.
This type of sale has a special legal regimen Spain, regulated by the Commercial Code. Sets the art. 325 of this legal body that “The sale of movable things for resale will be commercial, either in the same way they were purchased, or in a different way, with the intention of profiting from the resale.”
The terms established in the Commercial Code in relation to possible defects in the merchandise, without prejudice to the fact that they may be made more flexible by the courts, are certainly brief, for which reason a correct evaluation and communication system must be established in our company at the time of the reception of the products to avoid possible claims after the deadline.
The terms are:
1- If the buyer examines the goods at the time of delivery, he cannot claim for quantity or quality. Therefore, it is extremely important to record any incident with the goods on the timely delivery note, because if there is any incident, it must be communicated AT THE TIME OF DELIVERY.
2- If the goods are packed or bundled, the term to manifest an incidence in quality or quantity is FOUR DAYS. Our internal system for receiving and examining goods must therefore be agile enough to examine them and report the incident within this short period of four days.
3- If the claim is based on internal defects of the goods (hidden defects) the term to communicate them is THIRTY DAYS.
4- Finally, there is the aliud pro alio jurisprudential theory, for cases in which the defect is such that it makes the merchandise unusable for the use with which it was acquired, applying in such a case the general term of prescription of actions of breach of contract for FIVE YEARS.
Despite not being the subject of this post, we want to draw attention to the special delivery regime contained in art. 332 CCom. Without a doubt, it generates certain surprises in commercial amount claim procedures.
As is well known, making available the goods is equivalent to their delivery. But in the event that these goods were refused (without cause) by the buyer, it is common for the seller to make a legal claim in this regard. Well, according to the article 332 CCom. it requires that for the judicial claim of contract performance, that is, to be able to claim the payment of the merchandise, the seller must have consigned the goods judicially.
Otherwise, following the literal tenor, the seller will only have the action of contractual resolution, but not being able of demanding the payment of the goods. This requirement of judicial deposit of goods has also been subject to flexibility in case law, but it is undoubtedly a risk to be taken into account in this type of situations.
In Navarro Llima Abogados S.L. We are great experts in claims and defense procedures for quality reasons both in commercial sales and within the construction process, national and international. Do not hesitate to contact us if you have any incident in this regard.