Business Contracts

Non-conformity is defined as a difference with the characteristics agreed upon, even if the good sold is likely to give satisfaction to the buyer . The delivery of a quality product which does not correspond to the specific features contractually agreed between the parties constitutes a breach of the obligation to deliver in conformity , since the buyer cannot be required to accept something different from what he ordered . The obligation of delivery in conformity therefore implies an exact correspondence between the thing delivered and what was agreed between the buyer and the seller . But what is meant by “agreed characteristics”? 

Case law defines the term as referring not only to the contractual stipulations, but also to all the documents or media in consideration of which the sale was concluded . Therefore, if the buyer does not provide a set of specifications and accepts the seller's commercial proposal, including the development process, that information is validated and consequently falls within the scope of the contract . The characteristics agreed upon by the parties are determined by reference to the contract of sale , the order form  or the general terms and conditions of sale . A seller who delivers a fourth-floor apartment facing a five-storey building directly opposite the buyer's apartment, when the buyer has ordered a fourth-floor apartment based on plans, with a three-storey building opposite, offset to the left in relation to the buyer's windows, has failed in his obligation to deliver in conformity . The seller's invoice, which includes the words “ undamaged vehicle”, also brings this quality within the parties' contractual scope . Likewise, the documentation accompanying a vehicle, and the information on the fuel tank hatch, constitute documents and information which fall within the contractual domain . Conversely, the absence of a written contract and specifications defining the physical characteristics of the goods sold between the buyer and the seller excludes the claim of non-conforming delivery .

Moreover, according to consistent case law, the seller who delivers goods that do not comply with regulations breaches their obligation of delivery in conformity . Thus, a breach by the seller of their obligation of delivery in conformity of the vehicle sold is established, since the latter, which does not meet the applicable Euro 6 standard, cannot be registered in France and therefore cannot be used without violating regulations, even though the said seller had undertaken in the invoice dated 5 July 2017 to proceed with its registration, the cost of which was included in the sale price . The manufacturer also breaches its obligation of delivery in conformity towards the final purchaser when, having omitted part of the product marking, it caused the goods to be rejected by customs . The thing delivered must not only be in accordance with the contract, but also with the standards in force in relation to the nature of the good and the circumstances of the sale . The seller of a complex and comprehensive computer system, whose obligation to deliver conforms to the contract extends to its installation on the customer's server and workstations, is bound to comply with the legal and technical standards applicable to the software package sold or included in the scope of the contract, with usage and with the legitimate expectations of the buyer . When the item sold is governed by legal or regulatory standards, such as the health and safety rules of the Labor Code , the rules of habitability of a departmental health regulation  or the provisions of an order (arrêté) relating to maximum permitted levels of pesticide residues  , or is subject to manufacturer's technical specifications , or to inspection , compliance with these provisions falls within the scope of the contract, even if the contract does not specifically include them. Unless otherwise stipulated, lack of conformity must be assessed in the light of technical data known or foreseeable on the date of sale, and may not result from the failure of the item sold to comply with standards subsequently developed as a result of technical progress .

Commercial practices also fall within the contractual sphere. Thus, according to the Court of Cassation, a seller who had undertaken, in accordance with a custom established between the parties, who had been doing business for several years, to deliver seeds that were always treated, breached his obligation to deliver in accordance with the usual contractual stipulations by delivering untreated seeds, sold at the price of treated seeds . On the other hand, the fact that the thickness of stainless steel tubes differs in a few places by a few millimeters from that agreed in the contract does not constitute non-conformity, since a total absence of tolerance does not exist in industrial manufacturing and the differences in question were within the usual tolerances, even if these were not mentioned in the contract .

According to case law, the agreed characteristics are the technical features of the goods sold: the weight of a vehicle is one of the agreed characteristics, so that a seller who delivers a semi-truck with an excess weight of 2,740 kilograms, limiting its payload by the same amount, is in breach of his obligation to deliver in conformity . The aesthetic characteristics in consideration of which a sale is concluded are also part of the agreed characteristics . Since the agreed characteristic falls within the scope of the contract, any mileage that is not guaranteed cannot be classified as such .

Under Article 1602 of the Civil Code, the seller must clearly define his obligations, and any vague or ambiguous agreement will be construed against the seller. In the event of a dispute, it is for the trial courts to determine whether or not equipment delivered by the seller has the characteristics specified in the contract between the parties . In application of this article, the Court of Cassation has ruled that the agreement must be interpreted in favor of the purchaser when the seller of a vehicle had not clearly indicated the characteristics, model and price of the vehicle he agreed to deliver .

The purchaser is required, however, to specify the conditions of use of the goods : a professional purchaser who maintains that the percentage of additives in an organic floral water he has ordered is essential for him, but does not specify this at the time of placing the order, and who does not verify, on receipt, the composition of the samples requested, does not establish a breach by the seller of his obligation to deliver in conformity . Furthermore, the mere fact that a customer refers to a specific document in his order does not make it a binding specification for the professional seller, and does not entitle him to claim a breach of the obligation to deliver in conformity, especially when the latter has not acknowledged receipt by notifying his agreement .

CA Angers, 28 January 2003, LawLex200500009525JBJ.

CA Amiens, 29 May 1990, LawLex200500010229JBJ.

CA Bordeaux, 19 February 2013, LawLex201300000781JBJ. See also CA Agen, 21 April 2021, LawLex202100001684JBJ, holding that the professional purchaser of an insecticide who has used it in accordance with the information provided by the seller, even though this information did not comply with the applicable regulations, is entitled to hold the seller in breach of his obligation to deliver in conformity.

CA Reims, 29 August 2005, LawLex200600001712JBJ.

CA Bordeaux, 12 December 2023, LawLex202400003305JBJ.

Cass. com., 9 December 2020, LawLex202100000065JBJ.

CA Nîmes, 12 January 2024, LawLex202400003245JBJ.

CA Amiens, 28 March 2024, LawLex202400002908JBJ.

CA Douai, 6 February 2020, LawLex202000000212JBJ; CA Rennes, 6 February 2024, LawLex202400001094JBJ.

CA Lyon, 9 January 2020, LawLex202000000040JBJ.

CA Douai, 3 December 2012, LawLex201300000784JBJ: the seller of a machine made of “food-grade materials” who supplies his customer with equipment that does not comply with the health and safety rules laid down in the Labor Code, fails to meet the obligation to deliver in conformity.

Cass. 3e civ., 20 April 2017, LawLex201700000767JBJ, holding that the buyer who brings an action for rescission of the sale for failure to comply with the obligation to deliver cannot reproach the seller for the lack of compliance of the dwelling sold with the standards of habitability provided for by the departmental health regulations of 20 December 1983, since the apartment in question is “decent” within the meaning of the Decree of 30 January 2002 which, by virtue of the hierarchy of norms, implicitly repealed these regulations.

Cass. 1re civ. 1 December 1987, LawLex200500008715JBJ, just as the seller is obliged to deliver a product whose characteristics correspond to the order, the buyer cannot be obliged to accept a product different from that initially stipulated in the contract.

CA Agen, 21 April 2021, LawLex202100001684JBJ: a professional purchaser of an insecticide who has used the product in accordance with the information provided by the seller, even though this information did not comply with the applicable regulations, is entitled to hold the seller in breach of his obligation to deliver the product in compliance with the applicable regulations.

CA Pau, 13 January 2009, LawLex201300000656JBJ, noting that the supply of a product conforming to the manufacturer's specifications is an essential element that implicitly but automatically falls within the scope of the contract.

CA Aix-en-Provence, 18 November 2019, LawLex201900001430JBJ, on the delivery of a vehicle not conforming to the mileage displayed and announced in the technical inspection.

Cass. 1re civ., 7 May 2008, LawLex200800001011JBJ.

Cass. com, 30 March 1999, LawLex202200002758JBJ.

Cass. com, 7 February 2012, LawLex201300000687JBJ.

CA Paris, 3 March 2016, LawLex201600000540JBJ.

CA Pau, 28 March 2017, LawLex201700000687JBJ.

CA Douai, 13 January 2014, LawLex201400001938JBJ; Cass. com., 29 November 2016, LawLex201600002054JBJ.

Cass. 1re civ, 13 October 1993, LawLex200500008702JBJ.

The obligation to deliver goods in conformity consists in the seller delivering the goods sought by the buyer, i.e. goods corresponding to the desired and specified characteristics agreed upon by the parties, CA Amiens, 12 January 2017, LawLex201700000130JBJ, adding, however, that once the professional purchaser has affixed the handwritten phrase “good for order” (bon pour commande) to the offer, which included a detailed description of its technical characteristics, the fact that the exact name of the model ordered does not appear on the delivery note or on the plates affixed to the product delivered is immaterial.

Cass. 1re civ, 13 April 1999, LawLex200500008750JBJ. Similarly, see CA Pau, 15 September 2010, LawLex201400001946JBJ, which held that a seller's failure to include detailed descriptive technical specifications for the furniture purchased renders the contract vague or ambiguous.

CA Versailles, 11 September 2018, LawLex201800001313JBJ, holding that the supply of presentation boxes for chocolates carrying a persistent odor, even though the order was for the purchase of an odorless product, is sufficient to establish the seller's breach of his obligation to deliver in conformity, justifying rescission of the sale.

CA Aix-en-Provence, 19 April 2018, LawLex201800000618JBJ; CA Versailles, 25 January 2024, LawLex202400003518JBJ.

CA Colmar, 31 May 2019, LawLex201900000774JBJ.

Cass. 3e civ, 26 May 1994, LawLex200500008726JBJ, for delivery of a building that did not conform to the plans filed with the notary in annex to the deed of sale.

CA Angers, 9 April 2024, LawLex202400003125JBJ.

CA Amiens, 12 January 2017, LawLex201700000130JBJ.

Cass. com, 14 October 2008, LawLex202200002759JBJ.

Cass. 3e civ, 10 March 2015, LawLex201600000102JBJ.

170. Agreed characteristics