Business Contracts

The delivery of goods that do not conform to contractual specifications must be distinguished from the case where the item sold is found to be affected by a latent defect, i.e. where the item delivered corresponds to the contractual specifications, but has a non-apparent defect that prevents its use or reduces its use to such an extent that the buyer, had he been aware of it, would not have bought …

Distinction between non-conformity and latent defects

The delivery of goods that do not conform to contractual specifications must be distinguished from the case where the item sold is found to be affected by a latent defect, i.e. where the item delivered corresponds to the contractual specifications, but has a non-apparent defect that prevents its use or reduces its use to such an extent that the buyer, had he been aware of it, would not have bought it, or would have bought it at a lower price. Thus, the delivery of a car with a registration certificate  not matching the characteristics of the vehicle purchased, and which, according to the judicial expert report, was rebuilt from three different vehicles, constitutes a breach by the seller of their obligation of delivery in conformity with the specifications agreed between the parties, and not a latent defect rendering the goods sold unfit for their intended purpose .

For a time, the Court of Cassation interpreted non-conformity of goods broadly, considering it to include not only goods which are correct but which do not conform to the terms of the contract, but also goods with a defect which renders them unfit for their intended use . The purchaser of a defective item thus had a choice between an action for warranty against latent defects, subject to the time-limit set out in Article 1648, and an action for breach of the obligation to deliver in conformity, subject to the ordinary civil law statute of limitations. Subsequently, the Court of Cassation reversed its position, stating that when defects render the item unfit for its normal use, the warranty against latent defects is the only possible basis for action . The case law has also fluctuated as to the role of the court in cases where the claim is unfounded in law. A decision by the Plenary Assembly of the Court of Cassation dated 21 December 2007  clarified the situation: the court may change the name or legal basis of the parties' claims, but is not obliged to do so.

Non-conformity and latent defect are now clearly differentiated . All formal promises made by the seller which prove to be unfulfilled in the light of the characteristics of the vehicle ordered may constitute a breach of the obligation to deliver, whereas all reductions in usability or serious malfunctions come under the heading of latent defects . Thus, according to the Court of Cassation, if the fact that a plot of land exchanged, resold and then leased is unbuildable is attributable to the original seller's failure to deliver a product in conformity with that promised in the deed of exchange, it constitutes, on the other hand, a latent defect for the intermediary seller, which he is obliged to remedy . According to the Court of Cassation, a latent defect is the malfunctioning of a new item . On the other hand, incorrect mileage or a falsified serial number on a used vehicle does not constitute a latent defect: the vehicle is not, in this case, unfit for its normal purpose because of these defects, but simply does not correspond to what was agreed between the parties . The same applies to the appearance of random warning messages - “braking anomaly” - which do not affect the braking system itself .

Cass. 1re civ., 14 June 2023, LawLex202300008075JBJ.

Cass. 1re civ., 6 June 1990, LawLex200500008722JBJ; Cass. com, 1 December 1992, LawLex200500008717JBJ; CA Chambéry, 29 October 1990, LawLex200500009571JBJ, ruling that, in the case of an automatic frying machine, inconveniences such as odors caused by the operation of the machine and its numerous malfunctions are latent defects, rendering it unfit for its intended use, and not defects in conformity.

Cass. 1re civ, 5 May 1993, LawLex200400003433JB; 13 June 2006, LawLex200600002182JBJ. See also Cass. com, 26 April 1994, LawLex200500004345JBJ. Consequently, the seller's recourse action against his supplier and the sub-purchaser's direct action against the supplier, involving the same defect in the thing sold, cannot have two distinct legal bases, namely the warranty against latent defects for the former and non-conformity for the latter, Cass. 3e civ, 5 November 1997, LawLex200300003411JBJ. 

Cass. plenary session, 21 December 2007, LawLex200800000083JBJ: in this judgment, the Assemblée plénière held that “seized of a claim based on the existence of a latent defect for which proof had not been provided, the court of appeal, which was not required to investigate whether this action could be based on a breach by the vendor of his obligation to deliver a vehicle in conformity with the contractual stipulations, legally justified its judgment”.

Cass. civ. 1re, 5 July 2005, LawLex200600001641JBJ; CA Riom, 14 September 2005, LawLex200600001708JBJ; CA Amiens, 29 May 1990, LawLex200500010229JBJ.

CA Amiens, 5 October 2017, LawLex201700001654JBJ.

Cass. 3e civ, 30 September 2021, LawLex202100005513JBJ, adding that despite the stipulation of a pollution clause in the deed of exchange, the company which exchanged a plot of land on which it operated a fuel distribution service station, with another company, which resold it to another company, which in turn leased it to an undertaking, is liable for non-conformity, on a contractual basis towards the sub-purchaser on the one hand, and on a tortious basis towards the lessee on the other, by delivering a polluted plot of land, even though the purchaser had not accepted a known risk of residual pollution and the technical report attached to the deed of exchange supported the idea of complete decontamination of the site.

Cass. 1re civ, 11 juin 2009, LawLex201300000679JBJ. However, see Cass. civ. 1re, 3 May 2006, LawLex200700000112JBJ, holding that an order for a new item means one that has not undergone any deterioration, so that functional and aesthetic defects discovered on a vehicle presented as new at the time of sale justify legal action for lack of conformity with the contractual stipulations of the order.

Cass. 1re civ, 15 March 2005, LawLex200500008871JBJ.

CA Rennes, 6 December 2012, LawLex201400001944JBJ.

Business Contracts

173. Distinction between non-conformity and latent defects

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173. Distinction between non-conformity and latent defects

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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