Can the legal warranty be limited or excluded?

The law allows the parties to limit the effects of or exclude the legal warranty provided that such limitation or exclusion is expressly and unmistakably stated in the contract. An ambiguous stipulation will be interpreted in favour of the buyer by the courts and will result in the enforcement of the legal warranty. Remember that any sale is deemed to be made with the legal warranty unless otherwise expressly stipulated.

A common example of limitation of warranty is a statement that the sale is made with the legal warranty of ownership, but without the warranty of quality of the property: a common wording in this respect is that "the sale is made with the warranty as to the title of ownership only". This stipulation ensures that the seller provides the buyer with a warranty for the exercise of the right of ownership on the property, but not against latent/hidden defects that can potentially affect said property.

To exclude the legal warranty, as much as regards the right of ownership as the hidden defects, you only need to state expressly in the contract that the sale is made without the legal warranty. It is therefore important to ensure that the buyer understands the consequences of this exclusion.

However, it should be noted that in no case may the seller exempt himself from liability for his personal fault, even if the sale would be made without warranty. This personal fault can result from actions of the seller that affect the exercise of the right of ownership by the buyer and that the seller has not disclosed. A frequent wording in this respect is that "the sale is made without warranty except for the seller's personal acts or omissions".

Finally, it should be noted that the statement in the deed of sale to the effect that the buyer declares to "take the property as is" was deemed insufficient by the court in order to exclude the legal warranty: the exclusion must be provided explicitly to be valid.