{"id":18076,"date":"2026-05-25T13:19:22","date_gmt":"2026-05-25T13:19:22","guid":{"rendered":"https:\/\/gascon.ca\/vente-sans-garantie-legale-savez-vous-vraiment-ce-que-vous-signez\/"},"modified":"2026-05-25T14:28:24","modified_gmt":"2026-05-25T14:28:24","slug":"vente-sans-garantie-legale-savez-vous-vraiment-ce-que-vous-signez","status":"publish","type":"post","link":"https:\/\/gascon.ca\/en\/selling-without-legal-warranty-do-you-really-know-what-you-re-signing\/","title":{"rendered":"Selling Without Legal Warranty: Do You Really Know What You’re Signing?"},"content":{"rendered":"

By Marie-Chantale Dub\u00e9<\/a><\/strong><\/p>\n

Exclusion of legal warranty clauses: beware of hidden effects<\/h2>\n

Sales of immovable property without a legal warranty have experienced significant growth in Qu\u00e9bec in recent years. This trend raises important issues for both buyers and sellers and requires heightened vigilance from legal professionals when drafting and explaining clauses excluding the legal warranty.<\/p>\n

To properly understand these issues, it is first necessary to mention that, as a rule, the sale of an immovable is accompanied by legal warranties. These include, in particular, the obligation to deliver, the warranty of quality (often associated with latent defects), and the warranty of title. The warranty of quality protects the buyer against serious defects that are latent, existed at the time of the sale, and were unknown to the buyer. It is important to note that the seller may be held liable even if they were unaware of the defect.<\/p>\n

These warranties are not limited solely to the parties to a transaction. Under the principle of the transfer of rights set out in article 1442 of the Civil Code of Qu\u00e9bec<\/em> (\u201cC.C.Q.<\/strong>\u201d), they generally follow the immovable and may be invoked by subsequent purchasers. Accordingly, within a chain of transactions, a buyer may, under certain conditions, exercise a remedy against prior sellers.<\/p>\n

It is in this context that clauses excluding legal warranties take on their full importance. Not all such clauses are equivalent, and their legal effects may differ significantly.<\/p>\n

A simple exclusion clause merely states that the sale is made \u201cwithout legal warranty\u201d or \u201cwithout the warranty of quality, but with the warranty of title.\u201d Contrary to a common belief, this wording does not fully protect the seller. Indeed, if the seller knew of a defect or could not have been unaware of it and failed to disclose it, the seller\u2019s liability remains engaged. This clause therefore offers only limited protection and does not constitute an absolute shield.<\/p>\n

At the other end of the spectrum, a total exclusion clause, generally worded as a sale \u201cwithout legal warranty, at the buyer\u2019s own risk,\u201d carries more drastic consequences. In such a case, the seller\u2019s liability may be excluded even if the seller knew of the defect, thereby creating an exception to article 1733 C.C.Q., which provides that a seller may not exclude or limit liability where the seller failed to disclose defects that they knew of or could not have been unaware of and that affect the title or quality of the property [our emphasis].<\/p>\n

In Tremblay v. Immeubles Perron lt\u00e9e<\/em>[1]<\/a>, the Court of Appeal clarified that \u201cthe seller\u2019s mere silence, as opposed to other customary forms of fraud (articles 1399\u20131401 C.C.Q.), such as lying, maneuvers or half-truths, cannot constitute fraud allowing the annulment of the sale on the ground of error. Reproaching the seller for silence alone would undermine the objective of the exception provided for in the second paragraph of article 1733 C.C.Q.\u201d<\/p>\n

This exclusion also has the effect of breaking the chain of warranties, as confirmed by the Court in Blais v. Laforce<\/em>[2]<\/a>. The buyer will therefore, in principle, be unable to exercise any recourse against prior sellers, which represents a major and often overlooked consequence.<\/p>\n

In light of these sometimes severe effects, a third approach has emerged: the partial exclusion clause. This clause allows for the exclusion of certain warranties of the immediate seller while preserving recourse against prior sellers and may be drafted in various ways, for example, stating that the sale is made \u201cwithout the legal warranty of quality, the buyer nevertheless not renouncing the legal warranties granted by prior owners, which warranties are hereby assigned to the buyer.\u201d This wording seeks to strike a balance between the parties\u2019 interests by avoiding the complete deprivation of protection for the buyer and preventing the break in the chain of warranties. However, this clause does not provide absolute protection. If the seller themselves acquired the immovable with a total exclusion of warranty, the partial exclusion clause becomes ineffective, as the chain of warranties has already been broken. Moreover, the seller remains liable if they knew of the defect and failed to disclose it, as is the case with a simple exclusion clause.<\/p>\n

It is also important to recall that contractual freedom with respect to the exclusion of warranties is subject to certain limits. An exclusion clause, even a total one, cannot be relied upon in cases of fraud, that is, where the buyer\u2019s consent was vitiated by fraudulent schemes, misrepresentations, or intentional omissions (articles 1401 and 1407 C.C.Q.), or where the latent defect results from the seller\u2019s personal acts (article 1732 C.C.Q.). Furthermore, certain sellers, such as professionals or builders, in some situations, simply cannot exclude legal warranties.<\/p>\n

In this context, it is essential that the parties truly understand the scope and consequences of a warranty exclusion clause. The role of legal counsel is critical at several key stages, particularly before and during the drafting of the promise to purchase and the deed of sale, in order to allow the parties to make an informed decision by understanding the risks assumed and the protections being waived.<\/p>\n

In conclusion, clauses excluding legal warranties should never be treated as mere formalities. Their drafting requires a thorough understanding of their legal effects. In a context where the use of such exclusion clauses is rapidly increasing, they represent a strategic issue for both risk management and client protection.<\/p>\n

\n

[1]<\/a> 2024 QCCA 719, par.24
\n[2]<\/a> 2022 QCCA 858, par.6<\/p>\n","protected":false},"excerpt":{"rendered":"

By Marie-Chantale Dub\u00e9 Exclusion of legal warranty clauses: beware of hidden effects Sales of immovable property without a legal warranty have experienced significant growth in Qu\u00e9bec in recent years. This trend raises important issues for both buyers and sellers and requires heightened vigilance from legal professionals when drafting and explaining clauses excluding the legal warranty. […]<\/p>\n","protected":false},"author":4,"featured_media":18077,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[203],"tags":[],"class_list":["post-18076","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate-law-en"],"acf":[],"_links":{"self":[{"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/posts\/18076","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/comments?post=18076"}],"version-history":[{"count":4,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/posts\/18076\/revisions"}],"predecessor-version":[{"id":18099,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/posts\/18076\/revisions\/18099"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/media\/18077"}],"wp:attachment":[{"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/media?parent=18076"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/categories?post=18076"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gascon.ca\/en\/wp-json\/wp\/v2\/tags?post=18076"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}