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Sep20
Failure to Disclose Defect

The following is not meant to be legal advice. 

 

What is the liability for a company doing business in Europe for failing to disclose a hidden defect in a software product at the time of sale? 

 

In Europe, there is a concept known as non-disclaimable warranty that goods are free of hidden defects.  This creates the need to disclose hidden defects.

In the United States, there may be no need to disclose hidden defects because if a product is consistent with its warranties, there is no duty to disclose defects.  For example, if the license agreement has a disclaimer of warranties, there is no need to disclose a defect unless the defect related to a fundamental aspect of the product.  If it related to a fundamental aspect of the product, it may be considered misrepresentation if a defect is not disclosed.  This is because the buyer may be deprived the benefit of the bargain of having a product that worked according the basic value of the product. 

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