Posted Friday, January 31, 2020
When signing an agreement, you are bound by that agreement

When one signs an agreement that would be an indication that he or she would be agreeing to all the terms of the agreement. This was held by Magistrate Dr Brigitte Sultana on 21 January 2020 in J Zammit Limited -v- Sophie Bay Mawby. The plaintiff company filed an application wherein they asked that the defendant pay €7,719.32 which refers to the balance of the price of a car sold to her and storage fees.

The defendant replied that this sum is not true because the car she bought was defective and she has actually given the car back. The Court pointed out that the plaintiff had declared that the defendant did pay the storage costs and the car and therefore reduced the claim to a little over than €4,000. The Court analysed the evidence brought before it and saw that the defendant had purchased the vehicle in November 2015 and on the day signed the bills of exchange and a hire purchase agreement.

She mentioned that the agreement was not explained to her, but the evidence showed that she had purchased another car from the plaintiff company on a previous occasion and what she signed in 2015 was the same agreement.

On this occasion, the agreement was explained. The defendant had instituted proceedings before the Consumer Claims Tribunal and from that judgement, it transpired that the plaintiff company had carried out a full service and the defendant had gone on a test drive.

On the day she took possession of the vehicle, it had to be pushed off the Gozo Ferry, as it failed to start.

The plaintiff company reimbursed the repair expenses in Gozo, however, the car developed more problems and was taken to the plaintiff company. The company repaired the car, but the defendant failed to pick it up. The plaintiff company claimed that the car required minor repairs.

Magistrate Sultana held that the main defence of the defendant was that the vehicle was defective and therefore a basis of an actio redhibitoria, wherein the buyer would file an action within six months asking the court to order that the vehicle be restored or else have the price paid refunded. This type of action cannot be used as a defence, but an action has to be instituted by the defendant.

The Court quoted from a previous judgement Zammit Automobiles Ltd. vs Charles Bezzina, decided on 30 June 2003, which held that the buyer’s remedy for a latent defect is by filing an action whereby the court will either order the return of the thing or the price refunded or else an action to keep the thing and receives a reduction of the price. This cannot be done by means of a plea in the statement of defence.

In this case the Court pointed out that the defendant failed to file the action in terms of Article 1431 of the Civil Code. The defendant had six months to file these actions but only raised the issue when she was faced with the plaintiff company’s claim for payment. The Court then held that the relationship between the parties is regulated by the hire purchase agreement of November 2015. Clause 5 of the agreement regulates the risks and warranty which reads:

“The Hirer agrees that he shall bear all risks relating to the Motor Vehicle as from delivery in accordance with the foregoing clauses … The Parties agree that the Motor Vehicle has been seen, tested and inspected by the Hirer and found to be to his complete satisfaction”.

Once the defendant signed this agreement, “she was, in essence, declaring that she had indeed agreed to all the clauses stated therein ……”

The defendant concluded the purchase and bought the vehicle, which was serviced prior to the sale. The Court then moved to reject the defendant and ordered that she pays the balance due.

Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates 
 
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