Chapter: Dispute Between Buyer and Seller Over a Defect
If the purchaser claims that the goods he bought are defective and the seller denies it, the purchaser must produce evidence from people who are competent in such matters. If they testify that the defect is old—that it existed before the transaction and reduces the price—he may return the item.
Defects fall into three categories:
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A defect that appears after the sale and could not possibly have been present beforehand. In this case the buyer has no claim; the loss is his, because the defect arose while the goods were in his possession.
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A defect that certainly existed before the sale and could not have arisen afterward. Here the buyer may, if he wishes, rescind the sale or keep the item, as set out in the comprehensive chapter on rescission for defects.
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A defect that could equally have been present while the goods were with the seller or have arisen while they were with the buyer. In this situation the buyer must prove that the defect was present while the goods were in the seller’s possession and that it affected them at a time earlier than the sale; specialists familiar with the commodity must testify to this. If reliable experts who know that type of merchandise bear witness in his favor, and the defect diminishes the price, he may return the goods, whether they are livestock or anything else. The same applies if the seller himself admits the defect.
If, however, the seller says, “This defect arose while the goods were with the buyer,” and the buyer has no proof, the seller must swear that he sold them free of any defect—or at least free of the particular defect alleged. If the defect is obvious, he takes an unqualified oath; if it is hidden, he swears according to his knowledge—though one opinion requires an unqualified oath in both cases. Should the seller refuse, the buyer then takes the unqualified oath; another view is that he merely swears he does not know the defect to have appeared while the goods were with him, after which he may return them. If the buyer likewise refuses, liability rests with him and no—