Business Contracts

The warranty against latent defects is governed by Article 1641 of the Civil Code, which states: “The seller is bound by the warranty against latent defects in the thing sold which render it unfit for the use for which it was intended, or which so diminish this use that the buyer would not have acquired it, or would only have given a lower price for it, if he had known of them”. 
The warranty agai …

Warranty against latent defects

The warranty against latent defects is governed by Article 1641 of the Civil Code, which states: “The seller is bound by the warranty against latent defects in the thing sold which render it unfit for the use for which it was intended, or which so diminish this use that the buyer would not have acquired it, or would only have given a lower price for it, if he had known of them”. 

The Court of Cassation has clarified the scope of these provisions, noting that Articles 1641 et seq. of the Civil Code do not apply between parties who are bound by a contract for services . Thus, a ship repair contractor who fails to replace the defective parts necessary to repair the damage for which his customer has entrusted him, is not liable to the latter, by reason of this omission, for any warranty against latent defects, which can only affect the parts or fittings supplied or be the consequence thereof, even if he commits his ordinary civil law contractual liability for not having fulfilled his obligation to repair . The same applies to the garage repairer, who cannot be sued pursuant to the warranty against latent defects, which does not extend to the contract for services . Also excluded from the scope of Article 1648 of the Civil Code is a contract by which one undertaking entrusts another with the design and implementation of a work package for which it has been awarded a contract, since this does not constitute a contract of sale, but a contract for services . In their direct relationship, the warranty against latent defects is therefore not open to the project owner against the contractor , who cannot therefore seek rescission of the contract for services on this basis .

Similarly, subcontractors, who are not suppliers, are not bound by the warranty against latent defects, but may, in the absence of a contract binding them to the project owner, incur liability in tort for proven fault .

In a ruling handed down on 7 December 1986, the Court of Cassation (plenary session) established the principle that the project owner, like the sub-purchaser, enjoys all the rights and actions attached to the thing which belongs to its originator . As the sub-purchaser can take direct action against the original seller for warranty against latent defects , the project owner is also entitled to take direct action against the manufacturer or seller from whom the contractor purchased the goods to enforce the warranty against latent defects.

As for the contractor, even if not liable to the project owner under the warranty against latent defects, he can pursue a recourse action against the manufacturer or supplier of the products he has installed or used, once he himself has been sued for liability by the project owner, irrespective of the grounds for such liability . A builder, who has been declared liable under Article 1792 of the Civil Code but is not subrogated after payment in this action reserved to the project owner and successive owners of the thing, thus has a recourse action in warranty against latent defects against the supplier of the defective thing .

Procedurally, Article 1648, paragraph 1 of the Civil Code stipulates that the action for rescission must be brought within two years from the discovery of the defect. However, according to case law, this deadline must be coordinated with the ordinary civil law limitation period or “délai butoir”, which corresponded to the ordinary civil law limitation period of thirty years for contracts of sale (Art. 2262 Civil Code) and ten years for commercial or mixed sale contracts (Art. L. 110-4, I, C.com.), before the Law of 17 June 2008 reforming the limitation period aligned these two periods, reducing them to five years. As the reform also introduced new Article 2232 of the Civil Code, which stipulates that “the postponement of the starting point, the suspension or interruption of the statute of limitations may not have the effect of extending the extinctive limitation period beyond twenty years from the date on which the right arose”, the courts had to decide which cut-off period should be used: should it be the five-year period set out in Articles 2224 of the Civil Code and L. 110-4, I, of the Commercial Code, or the twenty-year limitation period set out in Article 2232?

The Commercial Chamber of the Court of Cassation held that a contractor's recourse action against his seller and/or the manufacturer of the item for warranty against latent defects should be declared time-barred when brought more than five years after the initial sale and delivery , whereas the Third Civil Chamber held, for sales concluded before the entry into force of the Law of 17 June 2008, that the starting point of the period allowed to the contractor by Article 1648 of the Civil Code should be set at the date of his own writ of summons, the applicable period under Article L. 110-4 of the Commercial Code being suspended until such time as the contractor's liability is sought by the client . For sales concluded after the entry into force of Law No 2008-561 of 17 June 2008, the Third Civil Chamber, on the other hand, considered that the time-limit for bringing actions to enforce the warranty against latent defects could only be ensured by Article 2232 of the Civil Code, which sets a cut-off point at twenty years from the date on which the right arose .

On 21 July 2023  , the Court of Cassation issued four rulings in the Mixed Chamber, unifying the case law of these chambers and enshrining the 20-year period provided for in Article 2232, whether the sale is simple or part of a chain of contracts, and whatever the nature of the property. In other words, an action for warranty against latent defects must be brought within two years from the discovery of the defect, or, in the case of a recourse action, from the date of summons, without being able to exceed twenty years from the date on which the right arose, which in the case of warranty against latent defects is the date of the sale concluded by the party seeking the warranty. The mixed chamber of the Court of Cassation has also stated that the two-year period laid down in Article 1648, paragraph 1, of the Civil Code - which it has described as a délai de prescription (statutory limitation period) and not a délai de forclusion (time-limit for bringing proceedings)  - when interrupted by a writ of summary jurisdiction in accordance with Article 2241, is also suspended when the court has granted a request for an investigative measure made before any trial in application of Article 2239, it being understood that the period then starts to run again from the day on which the measure was implemented .

Cass. 1re civ. 2 June 1982, LawLex202300000038JBJ, concerning a contract for services relating to the repair of a vehicle; Cass. com. 4 July 1989, LawLex200600002119JBJ, holding that warranty against latent defects is not applicable where the contract between the parties is not a sale, but a contract for services, the equipment delivered having been built in accordance with the customer's precise instructions and specific requirements.

Cass. com. 16 February 1999, LawLex200500005038JBJ.

Cass. 3e civ, 13 July 2016, LawLex201600001355JBJ.

Cass. com. 16 January 2019, LawLex201900000055JB.

Cass. 3e civ, 20 October 2004, LawLex200400003412JBJ; 16 February 2022, LawLex202200001086JBJ; 8 February 2023, LawLex202300002157JBJ.  Also see CA Rennes, December 16, 2021, LawLex202100006556JBJ.

Cass. 3e civ, 8 December 2021, No 20-21.439; 25 May 2022, 21-18.218.

Cass. mixte, 21 July 2023, LawLex202300010599JBJ, LawLex202300010602JBJ, LawLex202300010609JBJ, concerning chains of homogeneous contracts of sale LawLex202300010618JBJ, concerning a chain of heterogeneous contracts: a court of appeal cannot declare the builder's recourse actions for warranty against latent defects against the manufacturer and its supplier to be time-barred, on the grounds that it was incumbent on the builder to take action not only within the two-year time-limit from the disclosure of the defect brought about by the conclusions of the expert's report, but also before the expiry of the period set out in Article L. 110-4, which was reduced from ten to five years by the Law of 17 June 2008 and had not yet expired when this text came into force, whereas, since that law came into force, if the previous ten-year limitation period had not expired by that date, the action for warranty against latent defects is governed by the twenty-year cut-off provision of Article 2232 of the Civil Code, which runs from the date of the sale concluded by the party seeking to enforce the warranty.

The délai de forclusion is a legal time-limit, specifically provided for a particular action, which cannot be suspended and which, once expired, produces the extinction of the action, whereas the time-limit for statues of limitations (préscription) is a mode of extinction of a right which results from the inaction of its proprietor and can therefore be interrupted. 

Cass. mixte, 21 July 2023, LawLex202300010599JBJ.

CA Paris, 18 September 2014, LawLex201600000297JBJ.

Cass. 1re civ, 4 July 2000, LawLex200600002102JBJ.

Cass. com, 29 June 2022, LawLex202200004128JBJ; see a contrario: Cass. 3e civ, 13 July 2016, LawLex201600001355JBJ, holding that a contractor whose liability derives from Article 1792 of the Civil Code is not subrogated to the rights of this action, which is reserved for the owner of the work and successive owners of the work, but is entitled to bring an action in warranty against latent defects against the supplier of the defective item.

Cass. 1re civ, 18 January 1989, LawLex200600002120JBJ.

Cass. 3e civ, 18 November 1992, LawLex200500004343JBJ.

Cass. ass. plén. 7 February 1986, LawLex200600001136JBJ, from which it can be deduced that the project owner has a direct contractual action against the manufacturer based on the non-conformity of the item delivered. 

Cass. 1re civ, 27 janvier 1993, No 91-11.302.

Cass. 3e civ, 8 February 2023, LawLex202300002157JBJ. 

Business Contracts

315. Warranty against latent defects

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315. Warranty against latent defects

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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