Business Contracts

If the purchaser finds that the product delivered does not conform to the contractual specifications, he must notify the seller of this non-conformity, so that the seller can take the necessary measures to remedy the defect.

Unreserved acceptance of the goods sold , or in other words, the absence of any notification of non-conformity, deprives the purchaser of the possibility of formulating any subsequent complaint . Thus, a buyer who stamps and signs the goods, followed by the words “bon pour accord” ("good for agreement"), without expressing any reservations about the quality of the wood, waives the right to contest the quality of the wood, in accordance with industry practice . The fact that the goods are used after delivery also rules out the possibility of the purchaser requesting reimbursement for failure to comply with the obligation to deliver goods in conformity . In practice, the courts have consistently held that the buyer's unreserved acceptance of the item sold covers any apparent lack of conformity . Thus, the signature, after presentation of the vehicle, of the provisional registration certificate and of a document on the bank's letterhead in which the buyer acknowledges having received delivery and accepts the release of the loaned funds in the hands of the seller, constitutes unconditional acceptance of the item sold, which covers apparent defects of conformity . However, the Court of Cassation has reiterated that acceptance without reservation only covers defects of conformity and faults in the item sold if these were apparent at the time of sale . Furthermore, the principle does not apply to complex items, for which the obligation to deliver in conformity is only fully performed once they have been effectively implemented , on the understanding that this exception must be interpreted strictly, according to the Court of Cassation. Thus, a court of appeal cannot consider that the unreserved acceptance of an ordered vessel is not enforceable against the buyer on the grounds that it is a prototype, comparable as such to a complex object whose conformity can only be assessed in a situation of use, without specifying how this vessel is, by its sophistication, a complex product, whose unreserved acceptance is not such as to purge defects of conformity and apparent defects .

Non-conformity must be brought to the attention of the seller as soon as possible, as the timescale for doing so, whether set by contract, custom or the courts, is generally short. The buyer's complaint may take the form of letters or faxes addressed to the seller, pointing out the inadequacy of the equipment delivered .

If the buyer's complaint of non-conformity is not effectively followed up, legal action may be brought. As the obligation to deliver goods in conformity with the contract is a result-based obligation, the burden of proof lies with the buyer , who need only establish that the goods purchased do not conform to the agreed characteristics  without having to prove any fault. The mere fact that the seller offered to replace the WIFI equipment with a cabled system does not constitute recognition of the alleged lack of conformity, especially as he had previously strongly advised against its purchase . Similarly, a court-appointed expert's indication that the vehicle does not meet the criteria for purchase is not sufficient to establish that it is subject to a lack of conformity .

Article 1353 (formerly Art. 1315) of the Civil Code stipulates that “he who claims to the discharge of his obligation must justify the payment or the fact which produced the extinction of that obligation”. When the buyer makes a claim for damages, he will have to prove that a harm resulted from the seller's failure to perform his obligation to deliver in conformity .

Cass. com. 1 March 2005, LawLex200500008869JBJ, stating that, according to articles 1604 and 1610 of the Civil Code, unreserved acceptance of the goods sold prohibits the buyer from relying on lack of conformity; 17 February 2021, LawLex202100000604JBJ.

CA Nîmes, 7 February 2019, LawLex201900000207JBJ: the seller's breach of his obligation to deliver in conformity is not established in the absence of any reservations expressed by the purchaser at the time of delivery or in the months following delivery as to the conformity of the equipment sold with the contractual stipulations or the agreed use; CA Colmar, 7 May 2019, LawLex201900000774JBJ : the professional purchaser who regularly assessed the quality of the sand delivered to him and never raised any reservations is not justified in invoking a breach of the obligation to deliver in conformity. 

CA Paris, 23 October 2019, LawLex201900001271JBJ, distinguishing between the burden of proof of the obligation to deliver, and that of non-conformity: even if it is incumbent on the seller to prove that he made the thing sold available to the buyer within the agreed period, the burden of proof of non-conformity of the thing delivered with that agreed lies with the buyer.

Cass. com, 8 November 2011, LawLex201300000689JBJ, holding that the non-conformity of the item is not proven when the delivery notes communicated by the buyer do not mention the alleged non-conformity as one of the agreed characteristics of the item; CA Lyon, 9 January 2020, LawLex202000000040JBJ, ruling that the buyer should be ordered to pay the balance of the unpaid invoices, since it had not been established that the malfunctions encountered were attributable to a possible breach by the seller of its obligation to deliver in conformity, and that no measure of expertise could seriously be ordered in court at this stage, given the loss of technical evidence linked to the disappearance of the computer system, which has since been replaced by a new supplier.

CA Nîmes, 7 February 2019, LawLex201900000207JBJ.

CA Versailles, 7 January 2020, LawLex202000000048JBJ, specifying that, apart from the unreliability of the LPG gauge noted by the legal expert, the LPG/petrol bicarburization, an essential feature of the vehicle purchased with regard to the purchase order, is included without being impaired by a malfunction, so that lack of conformity within the meaning of Articles 1603 et seq. of the Civil Code is not established.

CA Amiens, 11 October 2012, LawLex201300000662JBJ.

CA Amiens, 29 November 2016, LawLex201600002009JBJ, concerning the delivery of chestnut logs of varying quality.

Cass. com, 17 June 2008, LawLex201300000678JBJ; CA Lyon, 3 January 2017, LawLex201700000112JBJ, noting that even if the heat pump delivered did not conform to the one specified in the order, the purchaser's claim against the seller must be dismissed, since the unit's identification plate made this defect apparent and he used the installation for six winters before complaining of its non-conformity.

Cass. civ. 1re, 26 June 2001, LawLex200500008958JBJ; 12 July 2005, LawLex200500008870JBJ. Also see Cass. com, 3 May 2006, LawLex201300000676JBJ; 25 September 2019, LawLex201900001245JBJ: holding that a commercial court cannot, in order to uphold the claim of a buyer who, claiming a lack of conformity of the goods delivered, opposed the injunction requiring him to pay the price, hold that the goods delivered did not correspond to the quality requested and that they suffered a depreciation of the expected sale price, when the buyer accepted them without reservation.

Cass. civ. 1re, 26 June 2001, LawLex200500008958JBJ.

Cass. 1re civ, 9 April 2014, LawLex201400001895JBJ, pointing out that unconditional acceptance of the item sold only covers defects of conformity and faults in the item if the defects were apparent at the time of sale; CA Paris, 8 November 2018, LawLex201800001751JBJ: the lack of any reservations on the part of the buyer at the time of acceptance does not have any bearing when there is no evidence that the non-conformity due to the nature of the coating in question was detectable at the time of delivery.

CA Paris, 27 May 2016, LawLex201600001009JBJ: holding that the unreserved acceptance of complex equipment is not sufficient to prove that the seller has fulfilled its obligation of comprehensive delivery, when the certification of the equipment sold, which alone is intended to attest to its effective operation, only takes place after its installation.

Cass. com., 20 June 2018, LawLex201900002082JBJ.

CA Bordeaux, 20 October 1997, LawLex200500009151JBJ.

175. Notification of non-conformity