MAURITIUS Trends and Developments Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
This judgment is important not only to the shipping industry but to any party involved in the financing, chartering or insuring of vessels operating in Mauri- tian waters. The right to limit liability is conditional on the underlying claim being one to which the limitation regime applies; where pollution damage is in issue, no such right exists under current Mauritian law. Consumer Protection: Remedies for Hidden Defects Clarified Mauritian civil law provides buyers with protection against hidden defects ( vices cachés ) under Articles 1641 to 1645 of the Mauritian Civil Code. The recent Supreme Court judgment of Jamodhee SS v ABC Motors Co Ltd 2025 SCJ 358 has reaffirmed how that protection operates in practice, particularly in relation to the remedies available to an aggrieved buyer. The case concerned the purchase of a brand new vehicle which, despite repeated repairs and engine replacements by the authorised dealer over several years, continued to suffer from a latent defect that the Court found to have existed at the time of sale. The four conditions required to establish a vices caché claim were satisfied: the defect was hidden, it was serious, it pre-dated the sale and the buyer was not at fault. The Court’s clarification of remedies is the most sig- nificant aspect of the decision. • A buyer may pursue damages as the sole remedy in an action founded on Article 1645 of the Civil Code, without being required to seek rescission of the sale or a price reduction. • The Court confirmed that réparation en nature (natural restitution, including replacement of the defective item) is available under Article 1645. The Court ordered the defendant to provide the plaintiff with a new vehicle of the same make and model, even though the original version was no longer on the market. • Moral damages of MUR1 million were awarded for prolonged loss of use, professional and personal hardship, and psychological distress, as well as damages for loss of use calculated from the date that the vehicle was effectively withdrawn from service.
• Where the seller is a professional, proof of bad faith is not required to engage liability for damages under Article 1645. The commercial nature of the relationship is sufficient. For businesses selling goods to consumers in Mauri- tius, particularly in sectors involving durable or safe- ty-related products, this judgment reinforces that the warranty against hidden defects is a meaningful and enforceable obligation, and that the remedial conse- quences of breach can include full replacement of the defective item. Administrative Law: Limits on Discretion In the recent Supreme Court judgment, Avrillon DPP v The Registrar General 2026 SCJ 157, the Court clarified an important but often overlooked aspect of property and security rights in Mauritius: the extent to which the Conservator of Mortgages may refuse to inscribe a mortgage on the grounds that the underly- ing transaction is allegedly unlawful. The case arose from two loan deeds by which a father advanced funds to his son to finance the purchase of residential property, with the loans secured by con- ventional mortgages prepared by a notary. The Con- servator accepted the deeds for registration but then refused inscription, on the basis that the transactions constituted unlicensed money-lending contrary to the Banking Act and therefore offended public order. The Supreme Court quashed the refusal and held that the Conservator had acted outside his legal powers. The Court found no evidence that the father was engaged in the “business of money-lending” within the meaning of the Banking Act – the transactions were one-off, personal, family-context loans at rates of interest expressly permitted under the Civil Code. No licence was required, and the loans were lawful. More broadly, the Court reaffirmed that the Conserva- tor’s role is formal and administrative. Save in cases where a right is manifestly without legal existence, the Conservator is not entitled to evaluate the substantive validity of transactions presented for inscription, nor to refuse inscription on the basis of disputed legality. By doing so, the Conservator had unlawfully deprived
362 CHAMBERS.COM
Powered by FlippingBook