Therefore, even if one is partially at fault, one is sometimes right and even if one is right, one is sometimes wrong.
Sometimes, during a transaction, certain individuals may try to take advantage of the omission of a co-contractor to disclose an important fact in order to be released from their obligations. Bad luck for them.
A buyer who has signed a offer to purchase for a condominium learns, after the offer is accepted, that the building is located in a protected area of cultural heritage. The buyer, citing several reasons including the seller's omission, refuses to proceed with their offer. The Superior Court, dismissing all the reasons given by the buyer except for the seller's omission, still rules in favor of the latter, but refuses to award damages on the grounds that they were indirect damages.
The Court of Appeal* recognizes that the inclusion of a building in a protected area constitutes a burden equivalent to a "true administrative legal servitude". According to the Court, in order to allow the buyer to make an informed decision, the seller had a duty to disclose this servitude, even if the co-ownership declaration contained much more onerous restrictions.
Despite the fact that the seller failed to disclose that the building was located in a protected area, the Court of Appeal rules in favor of the seller. The court considers that the seller's omission does not need to be sanctioned "since there would have had to be real consequences" that would have justified the buyer's refusal to proceed with their option. Even though the buyer was right to invoke the seller's omission, the Court orders the buyer to pay substantial damages.
Therefore, even if we are partially at fault, we are sometimes right, and even if we are right, we are sometimes wrong.
*C.A. 500-09-003274-966
