Does a waiver of warranty for the purchase of a flat also include "secret" construction defects?

Created by Thomas Hörantner, LL.M. |
Real Estate Law , Inheritance Law

Subject matter

The two plaintiffs (idf: buyers) bought a new flat from the defendant (idf: seller). Due to the formation of mould, the buyers asserted warranty claims against the seller for construction defects which were not recognisable to them during the inspection. The seller was of the opinion that his liability for warranty had been excluded in the purchase contract.

The flat purchase contract contained the following clause:

“The buyers have inspected the object of the contract in detail before signing the contract and therefore know its type, location and external condition. The handing over and taking over of the object of purchase takes place in the existing actual condition of the same, without liability of the seller for a certain state of construction or maintenance of the object or any other certain actual property or condition of the property”

On the basis of this provision (= exclusion of liability), the court of first instance dismissed the action. The Court of Appeal, on the other hand, held that the seller was liable for defects that were not recognisable during the inspection.


Statements of the Supreme Court

Agreements on the limitation or exclusion of liability are to be interpreted according to the intention of the parties and the practice of honest dealings. In case of doubt, they are to be interpreted restrictively.

The Supreme Court has already ruled on similar contractual clauses that the respective exclusion of liability only excludes the warranty for such defects that were recognisable to the buyer during a careful inspection. 

This results from the fact that the exclusion of liability refers to the condition of the object known to the buyer and the opportunity given to him to inspect the apartment.



The Supreme Court applies a strict standard to assess the scope of disclaimers. If the exclusion of liability contains a reference to the condition known to the buyer and if the buyer could not recognise a construction defect during a careful inspection ("secret construction defect"), the exclusion of liability does not include this hidden defect.