Legal Memorandum: Summary Judgment and Waiver of Redhibition

Issue: Is a motion for summary judgment based on the waiver of redhibition likely to be successful in Louisiana?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Defects apparent and discoverable; No right of action; Lack of privity of contract
Jurisdiction: Louisiana
Cited Cases: 897 So. 2d 781; 646 So. 2d 885; 509 So. 2d 798; 303 So. 2d 202; 778 So. 2d 1265; 303 So. 2d 598; 392 So. 2d 177; 763 F. Supp. 853; 523 So. 2d 1359; 659 So. 2d 835; 727 So. 2d 664
Cited Statutes: La. Civ. Code art. 2520
Date: 10/01/2009

See White v. Lamar Realty, Inc., 303 So. 2d 598, 600-01 (La. App. 2 Cir. 11/7/74).  In White, the court based its conclusion on this principle:  “[T]he principle appears settled that where defects in an object purchased are apparent and discoverable on a simple inspection, and where a buyer inspects the property before the sale, he will not be heard to complain of fraud.”  Id. at 601.  Because the “‘plaintiff has alleged that he inspected the property before the sale and he has complained only of defects which should have been patent and discoverable upon a simple inspection, we find that he has failed to state a cause of action under which he could recover.'”  Id. (citations omitted).

For example, simply because a house has suffered water damage from a large rainfall does not mean that the plaintiff has stated a cause of action for fraud and/or rescission based on a redhibitory defect.  “While a house’s susceptibility to flooding is a redhibitory defect, the mere fact that a house has flooded under extraordinary rainfall is not a redhibitory defect.”  Braydon v. Melancon, 462 So. 2d 262, 263 (La. App. 1 Cir. 12/28/84).  In Braydon, the appellate court affirmed the trial court’s finding that the plaintiff’s damages were caused by an extraordinary rainfall, not the house’s susceptibility to flooding under typical or normal conditions.  Id. at 263.  See Smith v. Kennedy, 392 So. 2d 177 (La. App. 2 Cir. 12/280) (holding that just because […]