HIDDEN DEFECTS AND WARRANTY IN THE SALE AND PURCHASE OF VESSEL
In recreational boating, and especially in the purchase of a boat we can find a multitude of problems, since, due to marine conditions and other factors, boats can end up in a defective state, and especially, have a defect that at first glance is not noticeable and when we are already sailing in voyage we find serious inconveniences that make us think about the poor condition of the boat and its origin.
It is important to differentiate in the sale of a boat the different legislation applicable depending on the parties involved in the process. Specifically, the sale of a boat between private individuals is of a civil nature, and therefore the general provisions established for the sale and purchase in the Civil Code will apply. On the other hand, when the seller is a professional dedicated to the sale of boats and the buyer is a private individual, the Royal Legislative Decree 1/2007, of November 16, which approves the revised text of the General Law for the Defense of Consumers and Users and other complementary laws will apply. Regardless of whether the boat is new or second hand. Therefore, it will provide greater protection to the consumer in the acquisition of a pleasure boat.
Specifically, Article 114 of the aforementioned Royal Decree establishes the following:
“The seller is obliged to deliver to the consumer and user products that are in conformity with the contract, responding to him for any lack of conformity that exists at the time of delivery of the product.”
It is presented as a fundamental piece the lack of conformity that is contained in Article 116 of the same Royal Decree establishing as conforming, in this case, the vessels that:
- Conform to the description given by the seller and possess the qualities of the product which the seller has presented to the consumer and user in the form of a sample/test or model.
- They are suitable for the uses to which vessels of the same type are ordinarily put.
- Are suitable for any special use required by the consumer and user when he has made it known to the seller at the time of conclusion of the contract, provided that the latter has admitted that the product is suitable for such use.
- They have the usual quality and performance of a product of the same type that the consumer and user can reasonably expect, taking into account the nature of the product.
That is, all those boats that conform to these parameters, presented as those that would be expected according to the seller’s descriptions and the uses to which the boats are ordinarily intended to be used, will be deemed to be in conformity.
On the other hand, the consumer will have the option to demand the return of the price or a proportional reduction, when it has not been possible to carry out the restitution/repair of the boat within a reasonable period of time in accordance with Article 121 of Royal Legislative Decree 1/2007.
The deadline for the buyer to express the lack of conformity is two years from the material delivery of the boat for new boats. (This will change with the amendment that will take effect from January 1, 2022, by the effects of Article 16.7 of Royal Decree-Law 7/2021 of April 27). For second-hand boats in which the seller is a professional, a shorter period may be established, which in no case may be less than one year from the date of delivery. Therefore, for second hand boats in which the seller is a professional, a minimum warranty period of one year is established.
All things considered, and in view of all the above, before proceeding with the acquisition of a boat, it is of vital importance to carry out a detailed examination of the boat by an expert specialized in the matter, both afloat and dry. Above all, for those boats with a considerable purchase price, the most prudent thing to do in these cases would be to examine the boat in question in all its aspects.