Explanation of Article 427
The article stipulates the nullity of any agreement between the contracting parties to exempt from the warranty against eviction or defect, or to limit it in the case where the lessor deliberately conceals the cause of the warranty. For instance, if the lessor knows of a hidden defect in the leased property and deliberately conceals it from the lessee, and stipulates exemption from the warranty or reduction of his liability, the condition of exemption or reduction is void. Similarly, if the lessor knows that a third party has a right to the leased property that conflicts with the lessee's right and deliberately conceals this right from the lessee, and stipulates exemption from the warranty or reduction of his liability, the condition of exemption or reduction is void.
However, if the lessor knows the cause of the warranty but does not deliberately conceal it from the lessee, and stipulates non-warranty or reduction of his liability, the condition is valid. The lessor may assume that the lessee is aware of the defect or knows of a potential right conflicting with the lessee's right, so the condition is not void in this case.
It can be inferred from this article that the provisions of the warranty against eviction and defect are not of public order, and the contracting parties may agree to contrary terms if the lessor does not deliberately conceal the cause of the warranty. It is permissible to agree on exemption from the warranty against eviction, such as agreeing that the lessor does not guarantee eviction by a third party even if based on a legal reason, or agreeing to reduce the warranty against eviction, such as agreeing that the warranty, if found, is limited to termination only without the lessee having the right to reduce the rent.
Similarly, it is permissible to agree on exemption or reduction from the warranty against defects if the lessor does not deliberately conceal it, such as agreeing that the lessor is only liable if the defect results in a total deprivation of benefit without affecting the reduction of benefit.
It can be said that the agreement to reduce the warranty against eviction or defect includes scenarios such as: 1- The reduction is directed towards actions considered as eviction, such as permitting actions that were considered eviction, or the reduction is directed towards descriptions considered as defects, such as agreeing to exemption from specific defects. 2- The reduction is directed towards the obligations of the warranty, which are the matters the lessor is obliged to in case of eviction or defect, namely termination or reduction of rent with compensation for damage in both cases, agreeing not to demand one or more of the obligations of the warranty.
Just as it is permissible to reduce or eliminate the lessor's liability in the warranty against eviction and defect, it is also permissible to intensify it, such as the lessee stipulating the lessor's warranty for any defect even if it could be detected by usual inspection, or the lessee stipulating his right to terminate the contract upon eviction even if the reduction in benefit is not substantial.
What the article contains is consistent with what is stipulated in articles (173) and (174) of the general rules regarding the permissibility of agreeing to modify the debtor's liability in contractual obligations, whether by intensification or reduction, except in cases of fraud or gross error.
In applying the provision of this article, if there is doubt in interpreting the condition of exemption from the lessor's warranty against eviction or defect and the scope it covers, or in interpreting the condition of reducing or increasing this warranty, the doubt is interpreted in favor of the party bearing the burden of this condition in accordance with article (104); in the case of exemption or reduction, the doubt is interpreted in favor of the lessee, and in the case of increase, it is interpreted in favor of the lessor.
Related To
Article 427
An agreement that includes an exemption from or limitation of the warranty against interruption or the warranty against defects shall be deemed null and void if the lessor deliberately conceals the reason for such exemption or limitation.