Business Contracts

In order to avoid or limit liability, a seller accused by the buyer of a breach of his obligation to deliver in conformity may either show that, contrary to the buyer's assertion, he has indeed delivered a thing in conformity with the contractual stipulations, or, where non-conformity is established, invoke force majeure, fault or the act of the victim, or invoke a limitation of liability clause,  …

Seller's liability

In order to avoid or limit liability, a seller accused by the buyer of a breach of his obligation to deliver in conformity may either show that, contrary to the buyer's assertion, he has indeed delivered a thing in conformity with the contractual stipulations, or, where non-conformity is established, invoke force majeure, fault or the act of the victim, or invoke a limitation of liability clause, if there is one.

Exemption from liability on the grounds of force majeure requires the seller to prove that the event was unforeseeable at the time of the sale , uncontrollable, unavoidable and external to the debtor of the obligation . As these conditions are not easily met, force majeure is rarely upheld by the courts. Thus, for an industrial manufacturer, obliged to check the chain of its own suppliers, deception concerning the product delivered does not constitute an unexpected and unforeseen event prior to production . The seller's exoneration is total , but in principle temporary, so that when the event comes to an end, he must proceed with delivery, in accordance with the contractual stipulations, unless the occurrence of the force majeure event has made performance of the obligation impossible, as, for example, in the case of loss of the item.

In the event of fault on the part of the victim, total or partial exoneration will depend on whether the victim's fault contributes exclusively or partially to causing the harm . Thus, a purchaser who fails to check the conformity of the goods ordered with those delivered, and who makes the first complaint more than two months after delivery , is liable for his own harm. Similarly, the buyer is not entitled to claim that the goods delivered do not conform to those ordered, if the damage was caused by the misuse of the goods , or if he has failed in his duty of cooperation and loyalty, and this gross negligence has prevented his co-contractor from fulfilling his obligation to deliver . On the other hand, the court cannot find that the seller has not fulfilled his obligation to deliver in conformity, while at the same time exonerating him of half of his liability in view of the climatic circumstances, the cultivation technique used and the use of water, without specifying in what way these elements are personally attributable to the buyer .

Among the elements attributable to the buyer, the seller will often cite unreserved acceptance of the goods. According to the Court of Cassation, unreserved acceptance of the item sold covers its apparent defects of conformity and constitutes a cause of total exoneration . In practice, the court first verifies whether the alleged lack of conformity is apparent , taking into account the quality  or expertise of the purchaser  , and then whether there has been tacit or express acceptance, without any reservations, of the item by the purchaser. According to the Court of Cassation, a breach of the seller's obligation to deliver cannot be implied from the seller's transactional offers alone, insofar as the purchaser does not provide proof that the frames, which he received without reservation and had installed, did not conform to the order . On the other hand, a seller who, in the event of malfunctions of the delivered boiler prior to the complete withdrawal of reservations, fails to establish that they were caused by the buyer's improper use or by an external cause , is in breach of his obligation to deliver in conformity.

Where a clause limiting liability is stipulated in favor of the seller, its validity depends on the status of the contracting parties. In the case of a contract concluded between a professional purchaser and a lay purchaser, such clauses fall under the prohibition of unfair terms laid down in Articles L. 212-1 et seq. of the Consumer Code, and must be deemed null and void ab initio. In the case of a contract between professionals, even if they are specialists in different fields , a clause limiting liability is lawful. The Court of Cassation considers that, in the case of a professional seller seeking to limit his liability for defects in the conformity of the goods delivered, the trial courts do not have to determine whether the buyer is a professional of the same speciality in order to declare the clause enforceable against him . Such a clause in a contract between professionals can only be set aside if it is unconscionable , in the case of gross negligence  or fraudulent non-performance on the part of the seller . Thus, according to the Court of Cassation, despite the stipulation, in the deed of exchange, of a pollution clause exonerating it from any recourse by the purchaser due to the state of the soil and subsoil of the property sold, which could result from the fuel distribution activity previously carried on, the undertaking which exchanged the disputed plot of land with another company, which resold it to a third company, which in turn leased it to a further undertaking, is liable for non-conformity, since it delivered a polluted plot of land to the purchaser, even though the latter had not accepted a known risk of residual pollution and the technical report attached to the deed of exchange had confirmed the idea that the site would have to be completely decontaminated .

Further, to be enforceable against the purchaser, a clause limiting liability must specifically refer to the seller's obligation to deliver in conformity, and not, for example, to latent defects . In a noteworthy ruling, the Court of Cassation established the principle that, in the event of rescission of a contract for non-performance, clauses limiting compensation for the consequences of such non-performance remain applicable .

CA Dijon, 17 October 2017, LawLex201700001709JBJ, holding that a carpenter who delivers a frame that has been treated from the outset with a product unsuited to its intended use as a winery incurs contractual liability, even if the use of polychlorophenols in wood treatment was not prohibited until after the work in question, since, in the specific field of wine production, their harmful effects had long been known at the time of the work, and their use was already contraindicated.

Cass. 1re civ., 26 May 1994, LawLex200500008757JBJ: fortuitous event necessarily implies an event external to the activity of the debtor of the obligation.

Cass. com. 23 October 2012, LawLex201300000690JBJ. For an example of a non-apparent defect, see CA Caen, 29 October 2009, LawLex201300000504JBJ: failure to certify the equipment sold.

Cass. 1re civ., 10 March 1993, LawLex200500004981JBJ, considering that the buyer of a vehicle with defects so apparent that they could not go unnoticed, even by a layman in the automotive field, is not subsequently entitled to take action against the seller for breach of the latter's obligation to deliver in conformity, when it appears that the said defects render the vehicle concerned unfit for use.

Cass. com. 26 November 2002, LawLex200500008873JBJ, noting that a professional who is aware of the regulatory requirements cannot be unaware that the delivery of a vehicle whose characteristics correspond to the 1992 model year does not comply with the purchase order for a vehicle of the 1994 model year, and thus contributes to implementing the harm suffered. See Cass. 1re civ. 20 May 2010, LawLex201300000508JBJ, for an example in which the purchaser's status as a professional led the Court to consider that acceptance without reservations also applied to non-apparent defects.

Cass. 1re civ, 25 February 2016, LawLex201600000490JBJ.

Cass. com. 29 March 2017, LawLex201700000698JBJ.

Cass. 1re civ. 24 November 1993, LawLex200300001216JBJ.

Cass. 1re civ, 20 December 1988, LawLex202200000830JBJ.

Cass. com., 4 November 2014, LawLex201400001239JBJ ( case quashed on the basis of Article 1603 of the Civil Code), which held that the clause limiting liability requiring the professional purchaser to file a claim against the seller of the fuel at the very moment of delivery of the fuel, must be deemed null and void since it renders impossible any action for compensation for harm resulting from the use, necessarily subsequent, of poor-quality fuel.

CA Paris, 15 September 2006, LawLex201300000677JBJ.

Cass. 3e civ, 19 September 2019, LawLex201900001158JBJ, holding that the failure to install a connection to the public sewage network constitutes a breach of the seller's obligation to deliver in conformity, so that the seller must answer for this lack of conformity, without being able to set up an exceptional liability clause against the purchasers, as this is an essential characteristic specified by the parties' agreement.

CA Paris, 15 January 2019, LawLex201900000071JBJ.

Cass. 3e civ, 30 September 2021, LawLex202100005513JBJ.

Cass.1re civ, 19 October 2004, LawLex200400003422JBJ.

Cass.com, 26 April 2018, LawLex201800000634JBJ, rendered outside the field of sales.

Cass. 1re civ., 28 November 2012, LawLex201600000177JBJ, stating that a commune, obliged to supply water fit for consumption, can only be exonerated from this contractual result-based obligation in full, by proof of an event constituting force majeure, or, partially, by proof of contributory negligence on the part of the victim.

Cass. com. 26 November 2002, LawLex200500008873JBJ, holding that a well-informed professional cannot be unaware that the delivery of a vehicle whose characteristics correspond to the 1992 model year, does not conform to the purchase order for a 1994 model year vehicle, and thus contributes to the harm suffered.

CA Nîmes, 13 January 2005, LawLex200500009716JBJ.

CA Toulouse, 29 October 2019, LawLex201900001311JBJ: the purchaser of a wood-fired stove, comprising several components including an oven, is not entitled to invoke a breach by the seller of his obligation to deliver in conformity, if he used the disputed oven in conditions indicated as unsuitable by its instructions, i.e. during the summer, with the heating circuit closed.

Cass. 1re civ, 7 March 2006, LawLex200600001983JBJ.

Cass. com, 5 June 2012, LawLex201600000179JBJ.

Cass. 1re civ, 10 March 1993, LawLex200500004981JBJ.  

Business Contracts

176. Seller's liability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

176. Seller's liability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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