Business Contracts

Article 1788 of the Civil Code stipulates: “If, in the case where the worker supplies the material, the thing perishes, in any way whatsoever, before being delivered, the loss is for the worker, unless the owner was put  in default for failing to receive the thing”.
Under this article, the contractor bears the risk of loss of the item until acceptance or formal notice to accept it. Thus, if on the …

Supply of material

Article 1788 of the Civil Code stipulates: “If, in the case where the worker supplies the material, the thing perishes, in any way whatsoever, before being delivered, the loss is for the worker, unless the owner was put  in default for failing to receive the thing”.

Under this article, the contractor bears the risk of loss of the item until acceptance or formal notice to accept it. Thus, if on the day of a fire, acceptance of the work had not taken place, and most of the building had been destroyed by a disaster of unknown cause, the project owner should be considered not to have been put on formal notice to accept the work, and the contractor should therefore bear the risk of loss. Consequently, the contractor will not be entitled to payment of the cost of the work he was unable to deliver, and will have to return to the project owner any advance payments he may have received in payment for this work, even though his failure to do so was not caused by fault . 

If, by virtue of the principle res perit domino, the transfer of ownership in principle entails that of the risks associated with the thing , it should nevertheless be noted that case law dissociates ownership and risks of the thing by recognizing the application of Article 1788 in matters of real estate construction, even though the material supplied by the contractor by being incorporated into the building becomes, before any acceptance, the property of the project owner. However, implicitly relying on the adage res perit debitori, the Court of Cassation has held that, while the purpose of Article 1788 of the Civil Code is to determine who bears the risks in the event of loss of the thing, it in no way implies that a building under construction on someone else's land, into which it is incorporated and built under a contract for works and services (contrat de louage d'ouvrage), is the property of the contractor, even before acceptance of the work by the project owner . 

Application of the provisions of Article 1788 require, in addition to establishing the loss of the thing , an examination of whether or not the contractor supplied the material. Recalling this principle, the Court of Cassation has overruled the ruling of a Court of Appeal, which, failing to make such an enquiry, had declared a contractor liable for the loss of the building on which he was carrying out work, on the sole grounds that he was installing a water heater at the time the damage occurred, the cause of which was unknown, and that acceptance of the work had not taken place, the project owner having not been given formal notice to do so .

Under Article 1788, the loss of the item is borne by the entrepreneur (contractor), “if the item perishes in any way whatsoever”. This is the case in the event of fire, occurring before acceptance of the work by the project owner and resulting not from a cause inherent in the work, but from an accidental circumstance external to the act of building . This is also the case when the destruction of the object results from a criminal explosion by unknown perpetrators, constituting, for him, a case of unforeseeable and irresistible force majeure . In effect, according to the Court of Cassation, the burden of the risk should not be eliminated or amended when the loss is due to an event that constitutes force majeure .

On the question of the scope of Article 1788, the Court of Cassation has repeatedly emphasized that it does not apply where the issue is not the burden of risk of loss or deterioration of the thing, but the liability of one of the contracting parties for such loss or deterioration , or where the loss or deterioration of the thing is due to the wrongful non-performance of the contractor's obligations .

Article 1788 of the Civil Code applies to the relationship between the subcontractor and the main contractor. As a result, a court of appeal cannot hold the subcontractor liable for damage caused to the work by an exceptional fall of powdery snow, after execution but before acceptance of the work, on the grounds that, under the general terms and conditions of the subcontract, the subcontractor is solely responsible for his work, materials and equipment until acceptance of the work, which must be simultaneous for all categories of building work and coincide with the project owner's acceptance of the main contractor's work, without taking into account whether the subcontractor in question had not delivered his work to the main contractor, thereby exonerating himself from his obligations .

Cass. 3e civ, 27 janvier 1976, LawLex202200010054JBJ.

Civil Code, Art. 1196 para. 3: “Transfer of ownership entails transfer of the risks of the thing. However, the debtor of the obligation to deliver regains responsibility for it as soon as he is put in default in accordance with Article 1344-2 and subject to the rules set out in Article 1351-1”.

Cass. 3e civ, 2 November 1983, LawLex202200004163JBJ.

Cass. 3e civ, 23 April 1974, LawLex202200004165JBJ.

In the absence of proof of loss of the work, Article 1788 of the Civil Code is not applicable, see Cass. 3e civ, 16 September 2015, LawLex202200004166JBJ, specifying that Article 1788 of the Civil Code cannot be applied when it has not been established, on the basis of the bailiff's report, that the item has perished, no expert appraisal having been performed by the insurers for the purpose of assessing the damage sustained, and no element making it possible to say that the resumption of work could not be envisaged, after restoration if necessary.

Cass. 3e civ, 14 June 1983, LawLex202200010055JBJ.

Cass. 3e civ, 15 December 2004, LawLex202200004172JBJ, adding that, even if the contractor supplies the material and the thing perishes before delivery, the loss is the responsibility of the contractor, a contractor is only obliged to provide the project owner with the thing he has undertaken to supply, so that a court of appeal cannot hold that all undertakings are necessarily liable to the same risk in the event of a fire occurring before the project owner has taken delivery of the work. In the same vein, See Cass. 3e civ, 12 October 1971, LawLex202200004168JBJ, stating that the application of Article 1788 of the Civil Code must be set aside when the thing destroyed by fire is not the one supplied by the contractor.

Cass. 3e civ, 19 February 1986, LawLex202200004167JBJ.

Cass. 1re civ. 9 November 1999, LawLex202200004171JBJ.

Cass. 1re civ, 2 December 1997, LawLex202200010047JBJ.

Cass. 3e civ, 13 October 2016, LawLex202300000039JBJ

Business Contracts

312. Supply of material

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312. Supply of material

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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