Business Contracts

As soon as ownership is transferred, the buyer becomes the proprietor of the rights to the thing, and the seller accordingly loses all rights of ownership. In accordance with Article 1615 of the Civil Code, the item delivered includes its accessories and everything intended for its perpetual use . Furthermore, by virtue of the rule that the accessory follows principal (accessorium sequitur princip …

Transfer of accessories ancillary to the thing

As soon as ownership is transferred, the buyer becomes the proprietor of the rights to the thing, and the seller accordingly loses all rights of ownership. In accordance with Article 1615 of the Civil Code, the item delivered includes its accessories and everything intended for its perpetual use . Furthermore, by virtue of the rule that the accessory follows principal (accessorium sequitur principale), the transfer of ownership of the thing is accompanied by the transfer of all accessories attached to it.

The transfer is not limited to the material accessories , but extends to the rights in rem  and legal actions attached to the ownership of the thing . The sub-purchaser, like the client, enjoys all the rights and legal remedies attached to the thing that belonged to its creator, and therefore has a direct claim against the manufacturer based on the non-conformity of the thing delivered. This principle, laid down by the Court of Cassation , has been confirmed on numerous occasions by both the lower courts  and the higher courts . An action for non-conformity of the item delivered is not the only one that can be transferred to the sub-purchaser. Ordinary civil law actions in contractual liability therefore apply to a building as an accessory, and can be brought against builders by successive purchasers . Similarly, the sub-purchaser has a direct claim in contract against the repairer based on non-performance of an obligation, to the exclusion of any liability based on Article 1240 of the Civil Code . In addition, although the warranty against latent defects is also, in principle, transferred to the sub-purchaser with the item sold, the intermediate seller does not lose the right to exercise it when it is of direct and certain interest to him . Finally, in a series of contracts transferring ownership, an arbitration clause is automatically transferred as an accessory to the right of action, itself an accessory to the material right transferred, regardless of whether the chain is homogeneous or heterogeneous .

A transfer as an ancillary right raises the question of what happens to the right to damages that arose prior to the sale. The Court of Cassation first ruled that the sale of an immovable does not automatically entail the transfer to the purchaser of rights and actions for damages which may have arisen in favor of the seller as a result of damage caused to the immovable prior to the sale . It then qualified its position by specifying that the rule only applied in the absence of an express clause . Ultimately, it completely reversed this position, holding that, in the absence of a provision to the contrary, the purchaser of an immovable has standing to sue the builder, even for damages arising prior to the sale, on the basis of ordinary civil contractual liability that accompanies the immovable as an accessory , while the seller retains an interest in bringing an action, even for damages arising prior to the sale, only if the deed of sale expressly provides that he has reserved this right for himself .

The seller may be bound by a non-compete clause in various respects. A non-compete clause cannot be imposed on a third-party purchaser of a business if it only creates a personal obligation incumbent on the seller . On the other hand, a non-compete clause entered into by a member of a self-employed profession - “liberal professionals” -  for the benefit of a colleague on the occasion of the transfer of the constituent parts of his practice must, in the absence of a clause to the contrary, be presumed to be included among the rights transferred by the transferee when he, in turn, carries out the same transaction for the benefit of a third party . A sub-purchaser who exercises the action of the intermediary seller against the manufacturer may also have recourse to the warranty disclaimer clause agreed between them , even though it would have been unenforceable against it if it had been stipulated in their contract.

Cass. 3e civ. 18 June 1997, LawLex202200000199JBJ.

In the case of real estate sales, these are fixtures (immeubles par destination) (Civil Code, Art. 524 and 525), and furniture (meubles meublants)when the sale concerns a furnished house (Civil Code, 535, para. 3). The proceeds (Civil Code, Art. 1614) are also part of the accessories included in the sale.

Cass. 1re civ. 27 March 2007, LawLex202300003442JBJ.

Cass. 3e civ, 25 January 1983, LawLex202300008689JBJ; 18 June 1997, LawLex202200000199JBJ.

Cass. 3e civ, 4 December 2002, LawLex202300002140JBJ; 17 November 2004, LawLex202200000833JBJ.

Cass. 3e civ, 9 July 2014, LawLex202300002141JBJ.

Cass. 3e civ. 5 November 2013, LawLex202200000295JBJ.

Cass. com. 11 March 2014, LawLex202300002653JBJ.

Cass. 1re civ. 3 December 1996, LawLex202200000419JB.

Cass. 1re civ. 3 November 2016, LawLex201600001850JBJ.

In matters of real property, the purchaser may, in supporting his action, claim against the original seller any property rights attached to a thing and intended for “perpetual use” (Civil Code, Art. 1615) of the property, such as servitudes. In the case of movable property, legal accessories include all documents attesting to the seller's status as owner. See Cass. com, June 14, 2016, LawLex202300008668JBJ, holding that it is for the purchaser to demonstrate that the delivery of a European certificate of conformity is necessary for the circulation of a harvester on the public highway and thus constitutes an accessory that must be delivered with it.

The draft reform of special contract law enshrines this rule, stating in Article 1612:

"The rights, actions and charges pertaining to the property sold are transferred by operation of law to its successive purchasers.

Each seller retains the right to claim compensation for his personal harm".

Article 1613 adds: “Any seller may oppose an action brought against him by a subsequent purchaser, by exceptions of such a nature as to waive or limit the warranty or reparation which he himself owes to his own purchaser”.

Cass. ass. plén., 7 February 1986, LawLex200500005433JBJ1986.

See CA Reims, 21 February 2023, LawLex202300008761JBJ.

Cass. 3e civ, 26 May 1992, LawLex202200005873JBJ, holding that the sub-purchaser enjoys all the rights and actions attached to the thing which belonged to its original owner,and has, against the lessors of the work, a contractual action based on a breach of their obligations towards the project owner; Cass. com, 21 September 2003, LawLex201600000114JBJ; 30 September 2021, LawLex202100005513JBJ.

Cass. 3e civ, 10 July 2013, LawLex202200000742JBJ.

Cass. 1st civ, 10 November 2021, LawLex202200000716JBJ, holding that the sub-purchaser of a sailing boat, of which the mast was changed by an undertaking which had entered into a repair contract with the former owner, cannot claim compensation for the harm suffered as a result of the removal of the mast on the grounds that he was a third party to the repair contract between the previous owner and the undertaking, that the non-conformity of the mast was the cause of the damage, and that the undertaking's fault led to the removal of the mast, since he has a direct contractual action against the repairer. See in this sense: CA Limoges, 4 November 2021, LawLex202300008757JBJ, holding that in the case of successive sales of the same property, the sub-purchaser enjoys all the rights and actions attached to the thing that belonged to its originator, so that he has a direct claim in contract against the original seller when the damage he alleges is caused by the thing transferred.

Cass. 1re civ., 19 January 1988, LawLex200700000614JBJ.

Business Contracts

150. Transfer of accessories ancillary to the thing

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150. Transfer of accessories ancillary to the thing

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Les décisions de justice citées dans ce paragraphe :

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