Business Contracts

The seller must not only guarantee the buyer against his personal actions, but also against the actions of third parties who may disturb his enjoyment of the property. The seller undertakes to prevent a third party, invoking a right on the thing, from contesting the right that he himself has transferred to the buyer . Thus, as soon as the buyer's peaceful enjoyment is affected by a legal dispute i …

Warranty against acts of third parties

The seller must not only guarantee the buyer against his personal actions, but also against the actions of third parties who may disturb his enjoyment of the property. The seller undertakes to prevent a third party, invoking a right on the thing, from contesting the right that he himself has transferred to the buyer . Thus, as soon as the buyer's peaceful enjoyment is affected by a legal dispute involving a third party, the warranty against dispossession is owed by the seller, even if the seller has been acquitted of the facts giving rise to the dispute .

The third party warranty is only due if the disturbance suffered by the buyer constitutes a legal disturbance, existing at the time of the sale , which has not been declared and is unknown to the buyer . This implies that the disturbance is present and not merely contingent . Where the third party has not taken any legal action to have his or her rights restored, the existence of an actual disturbance suffered by the buyers is not demonstrated . In effect, only the discovery of a right invoked by a third party on the thing sold, existing at the time of the sale, and not declared or known to the buyer, constitutes a present disturbance, obliging the seller to indemnify the buyer .

Dispossession includes both disturbance to the enjoyment of the property, and the existence of undeclared encumbrances at the time of sale . The seller therefore owes a warranty to the buyer in the event of discovery of an undeclared encumbrance leading to a reduction in enjoyment of the property , the warranty being due only if, at the time of the sale, the buyer was unaware of the encumbrance . Undeclared charges may consist of servitudes. In this case, article 1638 of the Civil Code allows the purchaser to seek rescission of the contract if the servitudes that are not apparent , and not declared by the seller, are of such significance that there is reason to presume that the purchaser would not have bought had he been aware of them . However, the fact that the purchaser has endured a servitude without making a complaint does not constitute an implicit admission of knowledge of the servitude, when the seller of the land has stated in the deed of sale that he has not created any on the land , it being specified that the purchaser is not obliged to make enquiries in the case of non-apparent servitudes .

Dispossession or loss caused to the purchaser may also be attributable to a public authority. Thus, the following constitutes a third-party interference with a right: the tax authority's challenge of the taxation of the acquisition of copper cathodes by the transferred company from a third company, implemented prior to the disputed sale, which affects the peaceful enjoyment of the purchaser, the adjustment made following the fraud resulting in a debt compromising the operation of the sold company . In this case, it cannot in principle give rise to an action in warranty against the seller, unless this act is the consequence of circumstances prior to the sale  and the purchaser cannot prevent its effects by any means .

CA Lyon, 14 February 2023, LawLex202300009624JBJ; CA Basse-Terre, 1re ch. civ., 29 April 2021, LawLex202300009631JBJ; Cass. 3e civ, 3 December 2008, LawLex202300008099JBJ.

CA Paris, 1 February 2024, LawLex202400001084JBJ.

Cass. 3e civ, April 26, 1978, LawLex202300008638JBJ, holding that so-called administrative encumbrances can only be accepted as non-apparent encumbrances, within the meaning of Article 1638 of the Civil Code, if they are exceptional obligations which are not the normal consequence of the nature or location of the property and which cannot, therefore, be deemed to be known by the purchaser. See, CA Poitiers, 27 July 2021, LawLex202300009637JBJ.

See for a recent illustration: Cass. 3e civ, 6 July 2023, LawLex202300009633JBJ.

Cass. 3e civ, 5 February 1974, LawLex202300008632JBJ; 21 March 2001, LawLex202200000283JBJ.

Cass. 3e civ, 21 January 2015, LawLex202300009663JBJ; CA Poitiers, 27 July 2021, LawLex202300009637JBJ, holding that it is the seller's responsibility to inform the buyer of the existence of hidden servitudes, and not the buyer's to inquire in this regard.

Cass. 1re civ, 28 April 1976, LawLex202200000279JBJ; 13 January 1998, LawLex202300009665JBJ.

Cass. 1re civ. 13 January 1998, LawLex202300009665JBJ.

Cass. 3e civ. 11 May 2011, LawLex202300008097JBJ, which states that the disturbance, which results from a lack of maintenance of the common areas, is not attributable to the seller and is subsequent to the sale, so that the buyer cannot be compensated for his harm to enjoyment; Cass. 1re civ. 13 January 1998, LawLex202300009665JBJ, for the sale of a vehicle stolen from its owner. See also CA Reims, 20 June 2023, LawLex202300009619JBJ, which holds that the seller of a vehicle owes the purchasers a warranty against dispossession even if the filing of a complaint of theft was established after the sale, since the theft, at the origin of the right claimed by the third party to the contract of sale, predates the sale.

Cass. 1ère civ, 28 October 2015, LawLex202200000769JB; Cass. 3e civ, 11 May 2011, LawLex202300008097JBJ; Lyon, 14 February 2023, LawLex202300009624JBJ; CA Reims, 20 June 2023, LawLex202300009619JBJ. Article 1625, paragraph 1, of the preliminary draft reform of the law of special contracts enshrines this solution: “If the disturbance emanates from a third party, the warranty is due only if the latter invokes a right, prior to the sale, which contradicts, in whole or in part, the buyer's right of ownership”; CA Paris, 1 February 2024, LawLex202400001084JBJ. Cf., CA Paris, 11 May 2023, LawLex202300009650JBJ, holding that, in the absence of an express warranty disclaimer, the seller remains liable to the buyer for any dispossession, even if it is established that the dispossessed buyer was aware, at the time of the sale, of the risk to which he was exposed, unless it was expressly stipulated that the buyer was purchasing at his own risk.

Cass. 3e civ, 30 November 2022, LawLex202300008110JBJ, which holds that the mere knowledge by the buyer of the existence of a right in favor of a third party likely to oust him is not sufficient to allow him to act in warranty.

Cass. 3e civ, 30 November 2022, LawLex202300008110JBJ.

CA Aix-en-Provence, 19 June 2014, LawLex202300009643JBJ; CA Nouméa, 10 May 2012, LawLex202300009648JBJ; Cass. 3e civ., 3 December 2008, LawLex202300008099JBJ.

CA Paris, 7 February 2020, LawLex202300009628JBJ, which points out that the warranty is only applicable when, at the time of sale, the purchaser was unaware of an undeclared servitude.

CA Paris, 7 February 2020, LawLex202300009628JBJ.

Cass. 1re civ, 26 November 1996, LawLex202300009664JBJ; Cass. 3e civ, 1 July 1980, LawLex202300009636JBJ.

Business Contracts

184. Warranty against acts of third parties

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184. Warranty against acts of third parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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