The termination of the purchase agreement

The Court of Cassation, with judgment no. 10045/2018, has established that, with regard to the purchase agreement, the redhibitory defects and lack in quality differ from the aliud pro alio delivery, which is when a good delivered is completely different from the good sold, since it belongs to a different category compared to the one based on the purchaser’s decision to proceed to the purchase, or if the good presents defects that do not allow a fulfilment of its natural function or the concrete function taken as fundamental by the parties.

The aliud pro alio delivery involves the termination action that is independent from the terms intended for lapse and limitation provided for in article 1495 of the Italian Civil Code with regard to the redhibitory defects, if the good sold shows defects related to the production, manufacturing and formation process that make the good unfit for the purpose it is intended for.

The person of the present case had bought a car in 2004, specifying  – during the negotiations and at the time of the purchase – the need to place a rotatable seat at 90 degrees in order to remedy a blood circulation problem that he had been suffering for. However,  a few months after the purchase, the plaintiff denounced the defective installation of the seat, carried out by a specialized company.

According to the Court of Appeal, the termination of the purchase agreement could not be accepted since the good sold belonged to the category wanted by the parties.

However, the Court of Cassation agrees with the purchaser, whereby the case in issue was not classified as an aliud pro alio delivery by the Court of Appeal, case that, in line with the Supreme Court, does not only come when the good sold is completely different from the good agreed because it belongs to a different category, but also when the good does not have the required functional characteristics in order to satisfy the purchaser’s needs.

Furthermore, the needs and the particularly utilizations of the good should be made explicit and expressively provided for by the parties during the negotiations, as for the case in issue, where the  need of a rotatable seat at 90 degrees because of the blood circulation problem of the purchaser has been evidenced. This element cannot be considered as “ancillary” since the fact that the party was persuaded to buy that type of car reassured by the seller by the opportunity to install a rotatable seat, otherwise he would have chosen a different car.

The Supreme Court has extended the institute of the aliud pro alio delivery to all those cases in which the good, even if it belonged to the same category, has defects that would not allow it to fulfill its natural function or the concrete function taken as fundamental and crucial for the purchase by the parties.  In these cases, it would be possible to claim the termination of the purchase agreement.