From the provisions of Articles 513, 514, 515(a), 516, 518, 535, 543, 550 of the Civil Code, in conjunction with the provisions of Articles 337, 362, 380, 382 of the Civil Code, it follows that the seller is obliged to transfer to the buyer the ownership of the property without legal defects and with the agreed characteristics.
A legal defect is understood to mean any third-party right over the property, lack of ownership on the part of the seller, possession and quasi-possession by a third party.
The assurance provided by the seller to the buyer under Article 550 of the Civil Code regarding the size of the property being sold must be treated as a case of agreement on quality. However, the seller’s promise that no one claims rights over the sold property does not constitute a contract of title, but a promise of the absence of a legal defect (EfLar 131/2011).
The lack of agreed quality also means the lack of area of the sold property, regardless of any third-party rights.
The existence of a road right on the property agreed to be sold, which substantially nullifies or reduces its value or usefulness, constitutes a factual rather than a legal defect, because it does not prevent the transfer of ownership of the property and does not, in principle, limit the buyer’s powers arising from ownership (AP 156/2011, AP 514/2016).
If the item has a legal defect or lacks an agreed quality, it follows from the combined provisions of Articles 513, 514, and 516 of the Civil Code that the general provisions of Articles 380 and 382 of the Civil Code apply, namely:
- a) If the seller was unaware of the legal defect for reasons beyond their control, the buyer is entitled to seek reimbursement of the amount paid in accordance with the provisions on unjust enrichment (Article 380 on inability to perform through no fault of their own).
- b) If the seller was aware of the legal defect, the buyer may either seek reimbursement of the price paid under the provisions on unjust enrichment (as above), or withdraw from the contract, or claim damages (Article 382).
In any case, the seller’s liability for the legal defect is objective, i.e. independent of his knowledge or ignorance of its existence. Only the buyer’s positive knowledge of the legal defect at the time of the conclusion of the sale results, according to Article 515(a) of the Civil Code, in the seller’s exemption from this liability, while even the buyer’s culpable ignorance is not sufficient (AP 1100/2010).
If the seller was unaware of the legal defect for reasons beyond their control (Article 380), then both parties to the contract, i.e. both the seller and the buyer, are released from their obligation to fulfill their obligations. If the buyer had already paid the price and the seller became unjustifiably richer at the expense of the buyer, then the buyer seeks the price paid in accordance with the provisions on unjust enrichment (AP 900/2008, AP 497/2010).
Furthermore, the burden of proof regarding the seller’s fault for the impossible performance in the case of Article 382 of the Civil Code lies with the seller, since his fault is presumed, in accordance with the general rule applicable to contractual liability. In other words, the buyer only needs to prove that the performance became impossible, but not that the impossibility was due to the seller’s fault.
On the contrary, the seller, in rejecting the claim, must prove that his inability is due to a fact for which he is not responsible, pursuant to Article 336 of the Civil Code (AP 405/2002, EfPei 124/2012).
If the seller was aware of the existence of a legal defect (Article 382), then the buyer may:
- a) Seek reimbursement of the price paid in accordance with the provisions on unjust enrichment, as above.
- b) Withdraw from the contract.
- c) To claim compensation.
However, the buyer’s claim for compensation in the event of a legal defect is waived in accordance with the provisions of Article 515(1) of the Civil Code, if the seller claims and proves that the buyer was aware of the defects in the item at the time of sale, i.e. that he knew about the defects in the item that existed at the time of sale. 1 of the Civil Code if the seller claims and proves that the buyer was aware of the defects in the item at the time of sale, i.e. that he had positive knowledge of them. However, the above provision of Article 515(1) 1 of the Civil Code is discretionary law and the reason established by it for exempting the seller from liability for legal defects in the item sold is inoperative if the parties have agreed otherwise.
In addition, the seller’s statement contained in the sales contract stating that the item sold is transferred “free of any third-party claims or rights” means that the seller is liable for legal defects even if the buyer was aware of such defects (Athens Court of Appeal 522/2002, Piraeus Court of Appeal 124/2012, Piraeus Court of Appeal 132/2019).
Breach of contract does not in itself constitute a tort, but a harmful act or omission that breaches the contract may also give rise to liability in tort. This occurs when the act, even without the pre-existing contractual relationship, would be unlawful as contrary to the general duty imposed by Article 914 of the Civil Code not to cause culpable damage to another person. In this case, claims arising from the contract and the tort may be combined and exercised in parallel, but the satisfaction of one extinguishes the other, unless the other has a greater object (it seeks something more), in which case it is preserved for the additional amount (AP 737/2011, EfPeir 124/2012).
