Business Contracts

Under Article 1603 of the Civil Code, the seller has two main obligations: to deliver and to guarantee the thing he is selling. Case law has developed the theory of the obligation to deliver goods in conformity on the basis of the concept of delivery, defined in Article 1604 as “the conveyance of the thing sold into the power and possession of the buyer”.  The concept of delivery in conformity is  …

Definitions of delivery and conformity

Under Article 1603 of the Civil Code, the seller has two main obligations: to deliver and to guarantee the thing he is selling. Case law has developed the theory of the obligation to deliver goods in conformity on the basis of the concept of delivery, defined in Article 1604 as “the conveyance of the thing sold into the power and possession of the buyer”.  The concept of delivery in conformity is twofold : it implies, on the one hand, that the seller must deliver the thing sold, and on the other, that this thing must correspond to the thing agreed upon. This duality is also reflected in the burden of proof, with the seller bearing the burden of proof of delivery , while the buyer bears the burden of proof of non-conformity between the thing delivered and the thing agreed upon .

The legal definition of delivery is a source of confusion, since delivery does not necessarily imply transport, and the obligation to deliver is only incumbent on the seller insofar as the buyer is not obliged to collect the thing sold, as in the case of real estate, for example. Delivery (délivrance) and handing over (livraison) are therefore not synonymous. However, if a clause in the contract so provides, the setting up or installation of the item sold, or even the loading and transport of the item, may be considered part of delivery .

In practice, délivrance (delivery for translation purposes) does not mean transfer of ownership either. In fact, the definition in Article 1604 must be read in the light of the provisions of the Civil Code on the transfer effect (effet translatif) of the contract, as a result of the reform of contract law. As stated in Article 1196, paragraph 1, in contracts which have as their object the disposal (aliénation) of ownership or the assignment of another right, the transfer of ownership - including the transfer of risks - takes place, barring exceptions, solo consensu, i.e. by the mere exchange of wills. In other words, the buyer acquires ownership of the thing sold, and bears the risks, as soon as the contract of sale is concluded, independently of delivery, which is merely the physical act of making it available. However, although delivery is distinct from transfer of ownership, the two are not unrelated, since Article 1196, paragraph 3, specifies that “the debtor of the obligation to deliver [the seller] reassumes responsibility for it as soon as he is put on formal notice (...)”. Article 1197 adds that “the obligation to deliver the thing entails the obligation to preserve it until delivery, with all the care of a reasonable person”.

Under ordinary civil law, conformity implies that the item delivered corresponds to the stipulations of the contract of sale .  However, the notion of conformity today refers more broadly to the general obligation of conformity laid down in Article L. 411-12 of the Consumer Code, which is incumbent on any party responsible for bringing a product to market for the first time, and which involves assessing the compatibility of goods in relation to the standards and regulations in force, as well as to the legal and commercial warranties of conformity laid down in the same code and applicable to consumers or non-professionals who have contracted with a professional.

In other words, the concept of conformity or non-conformity is intrinsic to the obligation to deliver: CA Douai, 18 April 2024, LawLex202400003373JBJ; CA Bordeaux, 20 March 2024, LawLex202400002667JBJ.

Cass. com. 23 October 1990, LawLex200500008714JBJ.

Cass. com. 8 November 2011, LawLex201300000689JBJ; CA Versailles, 14 March 2024, LawLex202400002599JBJ.

CA Saint-Denis de la Réunion, 6 September 2023, LawLex202400003180JBJ.

CA Toulouse, 13 May 2009, LawLex201300000772JBJ, defining lack of conformity as a difference between the thing promised in the contract and the thing delivered; CA Reims, 29 August 2005, LawLex200600001712JBJ, noting that non-conformity of the product with the specifications agreed by the parties is a breach of the obligation to deliver.

Business Contracts

168. Definitions of delivery and conformity

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168. Definitions of delivery and conformity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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