Business Contracts

Alongside the seller's obligation to deliver, the buyer has an obligation to collect the item at the place agreed at the time of sale (Art. 1609 Civil Code) . In principle, the buyer must remove the thing as soon as the sale is concluded. However, in the absence of contractual provisions, removal must take place according to usage or within a reasonable time . In particular, general trade practice …

Obligation to take delivery

Alongside the seller's obligation to deliver, the buyer has an obligation to collect the item at the place agreed at the time of sale (Art. 1609 Civil Code) . In principle, the buyer must remove the thing as soon as the sale is concluded. However, in the absence of contractual provisions, removal must take place according to usage or within a reasonable time . In particular, general trade practice requires that goods be collected within a sufficient period to ensure that excessive ageing of the goods does not prevent them from being sold . The time of collection can play an essential role in the transfer of risk, even if the transfer of ownership, and therefore of risk, takes place solo consensu. Thus, when the parties have agreed to defer the transfer of ownership until the date fixed for delivery, on which, in particular, the payment of the price depends, the risks of the thing sold remain with the seller . On the other hand, the buyer who fails to collect the goods within the period stipulated in the contract cannot accuse the seller of failing to monitor the wine, as the seller no longer bears the risks once the buyer has acquired ownership of the goods once the collection period has expired .

Obligation to deliver and obligation to take delivery must be distinguished, even if they are dependent on each other, since the buyer cannot hold the seller responsible for a failure to deliver when he has obstructed delivery, nor can the seller hold the buyer responsible for a failure to take delivery when he has not fulfilled his obligation to deliver .

As the buyer is obliged to carry out the collection, it is his or her responsibility to organize the actual operation and bear the costs, in accordance with Article 1608 of the Civil Code . When the sale concerns a building, the handing over of the keys formalizes the buyer's obligation to take possession, which occurs when the building is actually occupied or made available .

The buyer's failure to collect the goods purchased constitutes a fault . Article 1657 of the Civil Code  also allows the seller of goods and chattels to rescind the sale ipso jure  if the buyer has failed to take delivery within  the agreed withdrawal period. This is justified when the buyer has taken almost thirty years between the sale and the request for withdrawal to complete the sale, even though the deeds of sale in question did not stipulate a withdrawal period, nor the option of removal as and when required by the buyer, and the elements in the file did not make it possible to characterize a prior usage between the parties , or when the purchaser acquired machines according to staggered order and delivery dates, failed to pay for the machines delivered, refused to make known his intentions regarding the collection of other machines manufactured in compliance with his orders, and failed to collect these machines despite formal notices issued after the order and delivery dates . On the other hand, the absence of an agreed deadline for the removal of the goods prevents the rescission of the contract by operation of law . Nor can it be pronounced without ascertaining whether the seller has made the goods available for collection before the expiry of this term . In effect, the sale can only be rescinded in the event of failure to collect the goods if the seller has previously delivered the goods in accordance with the conditions laid down in the contract . The seller's right to seek  rescission of the sale in the event of failure to collect the goods wherre he has previously delivered the goods in accordance with the conditions laid down in the contract. In all cases, rescission ipso jure can only occur if the delivery date was one of the essential and decisive conditions of the sale .

Article 1655 of the draft reform of te law on special contracts stipulates that “The buyer's obligations must be performed at the place and time agreed by the parties. If the contract is silent, they must be performed at the place and time of delivery, after delivery has been made”.

CA Limoges, 18 November 2010, LawLex202300009036JBJ: a period of 30 years is not a reasonable time; CA Orléans, 24 September 2007, LawLex202300009040JBJ, on the reasonableness of a one-year time-limit for the retirement of steres of firewood.

Cass. com. 13 May 1975, LawLex202200003180JBJ.

CA Limoges, 18 November 2010, LawLex202300009036JBJ.

Cass. com. 27 May 1983, LawLex202200003176JBJ.

CA Orléans, 24 September 2007, LawLex202300009040JBJ.

Cass. 1re civ. 24 October 2000, LawLex202200000343JBJ.

Cass. 1re civ. 25 May 1992, LawLex202200002757JBJ.

Cass. com. 13 April 1964, LawLex202300009037JBJ.

Cass. 1re civ. 4 July 1995, LawLex202300008583JBJ.

Cass. com, 21 November 1989, LawLex202200003179JBJ.

CA Riom, 23 May 2018, LawLex202300009038JBJ.

Article 1653 of the preliminary draft reform of the law of special contracts provides in this respect that: “The costs of removal are to be borne by the buyer”, with Article 1622 providing on the contrary that “the costs of delivery are to be borne by the seller”.

CA Toulouse, 24 January 2023, LawLex202300009027JBJ.

Article 1656 of the draft reform of the law of special contracts restricts the scope of this provision to perishable goods: “In the case of the sale of perishable goods, the sale shall be rescinded ipso jure and without summons, in favor of the seller, after expiry of the term agreed for collection”.

Business Contracts

160. Obligation to take delivery

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

160. Obligation to take delivery

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise