Cars, houses, second-hand items
Hidden defects: what they are, time limits and remedies.
A defect that was hidden, existed before the sale and is serious enough to make the item unfit for use: that is a hidden defect. The rules and time limits depend on the country; in France, you have 2 years from discovery to act. In every case, you need to show that the defect existed before the sale and could not be seen.
By Emmanuel Fernandez, CEO of Proov-It · Updated
A hidden defect, also called a latent defect, is a flaw you could not see when you bought something, which already existed, and which makes the item unfit for its use or reduces that use so much that you would not have bought it, or not at that price. Used car, house, item bought from another private individual: the question arises in every country, but the answer depends on national law, because there is no EU-wide rule for sales between private individuals.
Time limits and conditions differ from one country to another. In France, for example, the buyer has 2 years from discovering the defect to act (Article 1648 of the French Civil Code). Everywhere, the hard part is evidence: showing that the defect was hidden, that it existed before the sale and that it is serious. When you bought from a business, the EU legal guarantee of conformity is often simpler to use, thanks to its presumption.
With Proov-It, the buyer fixes the date of discovery and the condition of the defect, and the seller the condition of the item before handover. Photos and videos taken in the mobile app are timestamped, geolocated if you allow it, and their fingerprint is anchored on a blockchain. They do not replace an expert assessment: they document its starting point.
Hidden defect or legal guarantee of conformity?
| Hidden defects (national law) | Legal guarantee of conformity (EU rules) | |
|---|---|---|
| Seller concerned | Depends on national law; in France, any seller, business or private individual | A business seller, selling to a consumer |
| Source | Each country's civil law; in France, Articles 1641 et seq. of the Civil Code | Directive (EU) 2019/771, transposed into each country's law |
| Time limit | Set by each country; in France, 2 years from discovery of the defect | At least 2 years from delivery; countries may provide longer |
| Who proves | The buyer, as a rule; in France, the defect, that it existed before the sale and its seriousness | A defect appearing within 1 year of delivery is presumed to have existed at delivery; countries may extend this to 2 years |
| What you get | In France: a refund on returning the item, or a price reduction; damages if the seller knew | Repair or replacement, otherwise a price reduction or termination of the contract |
Legal framework
No single EU rule: the French example.
There is no EU-wide rule on hidden defects in sales between private individuals. The EU directive on the sale of goods, Directive (EU) 2019/771, only covers sales by a business to a consumer, and it expressly leaves in place national rules, not specific to consumer contracts, that provide remedies for defects which were not apparent when the contract was concluded (Article 3(7)). Each country therefore has its own rules on hidden defects, with its own conditions and time limits: check those of the country whose law applies to the sale.
In France, for example, the seller is liable for hidden defects in the item sold that make it unfit for its intended use, or reduce that use so much that the buyer would not have bought it, or would have paid less, had they known (Article 1641 of the French Civil Code). The seller is not liable for apparent defects that the buyer could see for themselves (Article 1642). This guarantee applies to any seller, business or private individual, and to a car as much as to a house.
Still in France, the buyer chooses between returning the item for a refund of the price, or keeping it and getting part of the price back (Article 1644). A seller who knew of the defect also owes damages (Article 1645). The action must be brought within 2 years of discovering the defect (Article 1648). A clause excluding the guarantee only protects a seller who did not know of the defect (Article 1643). In every case, it is for the buyer to prove the defect, that it existed before the sale and how serious it is.
Step by step
From discovering the defect to the claim: the method.
Buyer or seller, the case turns on the timeline: when the defect appeared, when it was discovered, what each party knew.
Document the defect as soon as you find it
Photos and a video of the defect, close up and in context, with something to show scale. Car: the odometer and any warning light. House: the crack, the damp patch, the room concerned. Where the time limit runs from discovery, as in France, dating it matters.
DiscoveryDo not repair straight away
Unless it is urgent or dangerous, leave the defect as it is until it has been examined: a repair made beforehand erases what an expert could have seen. If you must act, photograph before, during and after.
Before examinationGather the sale documents
Listing, messages with the seller, contract or deed of sale, roadworthiness test or property surveys, service invoices: what the seller said, wrote or showed at the time of the sale.
Straight awayHave it examined by a professional
A mechanic's or tradesperson's report, an independent expert assessment: a technical opinion on what the defect is and how old it is carries more weight than a photo alone.
Within weeksWrite to the seller
A letter sent by a method that leaves a trace, such as registered post, describing the defect, when you discovered it, and what you are asking for: a refund on returning the item, or a price reduction. Attach the certificate for your photos.
Within the time limitMediation, then court
Without agreement: a mediator or conciliation service where your country offers one, then a court-ordered expert assessment and court action if the stakes justify it. Keep an eye on the time limit that applies.
Before the deadlineWhat Proov-It adds
What your photos establish, and what they do not.
What the certificate establishes
- +The condition of the item on the anchoring date: before the sale for the seller, when the defect is discovered for the buyer.
- +The integrity of the photos and videos, which the other party, the expert or the court can check without a Proov-It account.
- +The geolocation recorded at capture in the mobile app, if you allow it.
- +That the documents submitted with the photos (listing, contract, report) existed on the same date.
What it does not establish
- −That the defect existed before the sale: an expert assessment establishes that, where appropriate.
- −That it was hidden, or that the seller knew about it.
- −How serious the defect is, or the amount of any price reduction.
- −The outcome of the dispute: the court assesses the whole file.
Seller
Accused of a hidden defect: your arguments.
In France, for example, the seller is not liable in three situations, to be shown with supporting documents:
The defect was apparent
Visible on a normal inspection, or mentioned in the listing, the roadworthiness test or the surveys: the buyer could see it for themselves (Article 1642). Your dated photos from before the sale show this.
The defect appeared after the sale
Wear, an accident, misuse: a defect that arose after the sale is not a hidden defect. The condition of the item photographed on the day of handover is your best argument.
Exclusion clause, in good faith
A clause excluding the guarantee protects you if you did not know of the defect (Article 1643). It does not apply if you knew.
Use cases
Hidden defects: what you document.
Used car
The defect, the odometer, the warning lights, the mechanic's report; for the seller, the condition of the vehicle on the day of handover.
House or flat
Cracks, leaks, damp, roof timbers: the condition when discovered, before any repair.
Second-hand item
The defect filmed while the item is in use, with the original listing.
Listing and messages
The listing page frozen before it disappears, and your messages with the seller.
Seller, before the sale
The condition of the item photographed before handover, including the defects you disclosed.
Urgent repair
Before, during and after the work, to keep a record of the defect.
How it works
A proof in three steps.
No jargon, no technical skills. You submit or you capture, we certify.
Choose or capture
Documents, photos, videos. Or take a photo or video directly in the app.
Add the context
A comment, tags, a folder. To organise your proofs and find them easily.
Submit
You receive a PDF certificate attesting to the file's existence and integrity on the anchoring date and, for a capture made in the app, the geolocation recorded at that moment.
Does it hold up in court?
A Proov-It certificate can be produced as evidence; the court assesses its weight. We attest to the anchoring date, the integrity of the file and, for a capture made in the app, the recorded geolocation, not the truth of its content.
Frequently asked questions
What we are often asked.
What is a hidden defect?
A defect that was not apparent at the time of purchase, already existed when the item was sold, and makes it unfit for its use or reduces that use so much that the buyer would not have bought it, or would have paid less. This is, for example, the definition in French law (Article 1641 of the French Civil Code); each country has its own wording and conditions.
How long do I have to act?
It depends on the country whose law applies to the sale: there is no single EU time limit for hidden defects. In France, for example, the action must be brought within 2 years of discovering the defect (Article 1648 of the French Civil Code). Hence the value of dating the discovery precisely.
Is a private seller liable for hidden defects?
That depends on national law. In France, yes: the guarantee applies to any seller. A private seller is, however, not bound by the EU legal guarantee of conformity, which only concerns sales by a business to a consumer.
How can a seller respond to a hidden defect claim?
In France, for example, by showing that the defect was apparent or disclosed, that it appeared after the sale, or, if the seller did not know of it, that a clause excluded the guarantee (Article 1643). Dated photos of the item's condition before handover and the original listing are the first documents to produce.
Do I need an expert to prove a hidden defect?
It is not always required, but it is often decisive: an expert says whether the defect existed before the sale and how serious it is. Your dated photos, taken on discovery and before any repair, give the expert a starting point.
What can I obtain?
It depends on national law. In France, a refund of the price on returning the item, or a price reduction if you keep it (Article 1644), plus damages if the seller knew of the defect (Article 1645).
Keep reading
Related pages
Legal guarantee of conformity
Faulty product bought from a business: the EU two-year legal guarantee, who has to prove the defect, repair or replacement, and what to keep.
Vinted dispute
Item not as described, damaged parcel, dishonest buyer: how to open or answer a Vinted dispute, and which evidence to gather.
Timestamped photo evidence
eIDAS Article 41, national rules of evidence, the court's assessment: what gives a photo weight as evidence, and how a timestamp makes it stronger.
Timestamp comparison
Non-qualified timestamp, qualified timestamp, report by a public officer: evidential weight, cost and use of each tool, to choose for each case.
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