Business Contracts

Article 1627 of the Civil Code allows the parties to contractually modify the warranty against dispossession, adding to or diminishing the effect of this statutory obligation, or even agreeing that the seller will not be subject to any warranty whatsoever . This contractual arrangement of the warranty against dispossession applies only to third parties . In effect, Article 1628 stipulates that whe …

Warranty disclaimer

Article 1627 of the Civil Code allows the parties to contractually modify the warranty against dispossession, adding to or diminishing the effect of this statutory obligation, or even agreeing that the seller will not be subject to any warranty whatsoever . This contractual arrangement of the warranty against dispossession applies only to third parties . In effect, Article 1628 stipulates that where there is a disclaimer, the seller remains liable for his personal acts, and declares any agreement to the contrary null and void.

Case law has defined the outlines of the warranty disclaimers. The Court of Cassation has ruled that a clause stipulating that no recourse may be taken against the seller in respect of servitudes is a mere standard formula, which cannot exonerate the vendor from the consequences of his wrongdoing in failing to mention in the deed of sale a servitude of whose existence he cannot be unaware . Likewise, a clause relative to the condition of the property stipulating that the purchaser takes it “as is” without “any recourse against the sellers for any reason whatsoever, in particular for apparent defects or latent defects,” cannot be interpreted as excluding the warranty for undeclared non-apparent easements .

Similarly, a clause excluding warranties as to designation and capacity is not the same as a clause excluding warranties against dispossession, and cannot in itself exempt the seller from guaranteeing the buyer against dispossession . A handwritten statement at the bottom of the deed of sale, to the effect that the purchaser acknowledges a third party's claim of ownership, proves his knowledge of the risk, but does not imply any waiver, even implicit, of the seller's warranty . On the other hand, a clause intended to inform the purchaser of a particular circumstance prior to the sale and likely to cause his dispossession or to result in a prejudicial situation to his detriment, an eventuality for which he has, by acquiring the property, accepted to bear the risk , constitutes a warranty disclaimer. In all cases, the warranty against dispossession cannot be set aside without establishing that the risk incurred was declared in the deed of sale, and that the purchaser had waived any warranty . Furthermore, sellers may not rely on the warranty disclaimer clause in the deed of sale if they have, in bad faith, concealed the existence of a servitude which they are obliged to disclose to the purchaser in good faith .

Even in the case of a warranty disclaimer, the seller is bound by Article 1629 of the Civil Code to refund the price in the event of dispossession, unless the buyer knew of the danger of dispossession at the time of sale, or bought at his own risk . As a result, where the purchaser was aware of such a risk of dispossession at the time of the sale, the seller is not obliged to refund the price, even if the purchaser did not expressly declare that he was buying at his own risk . Thus, in the absence of a warranty disclaimer, and notwithstanding the fact that the purchaser was aware, at the date of his commitment, of the risk of eviction to which he could be exposed, the warranty of the transferor of a lease is due when he could not have been unaware, at the time of the transfer, that the successive lessors were contesting the lease and had brought several actions against him .

Cass. 3rd civ., 13 February 2025, LawLex202500001008JBJ.

Article 1626 of the draft reform of special contracts is more detailed, and enshrines the case law in this area:

"The parties may limit the scope of the warranty against dispossession by a third party, or fully exonerate the seller, unless the latter was aware of the risk at the time of the sale, or if he is a professional seller.

A professional seller is one who habitually sells goods similar to those sold".

Cass. com, 21 November 2018, LawLex202300008877JBJ. Paragraph 2 of Article 1625 of the draft reform of the law of special contracts recalls these limits, specifying that this warranty “is not due when the buyer, at the time of the sale, knew of the risk of dispossession or if he bought at his own risk”.

Cass. 3e civ, 24 June 1998, LawLex202300008086JBJ.

Cass. 1re civ, 21 June 1967, LawLex202300002318JBJ.

Cass. 3e civ., 13 February 2025, LawLex202500001008JBJ.

CA Reims, 23 January 2018, LawLex202300009623JBJ.

Cass. 3e civ, 27 May 1997, LawLex202300009662JBJ.

Cass. com. 2 December 1965, LawLex202300008626JBJ; Cass. 1re civ. 17 July 1962, LawLex202300008639JBJ.

Cass. 3e civ, 6 June 2012, LawLex202300008181JBJ.

Cass. 1re civ. 4 July 1979, LawLex202300009671JBJ.

Cass. com, 21 November 2018, LawLex202300008877JBJ. CA Nouméa, 10 May 2012, LawLex202300009648JBJ.

Business Contracts

189. Warranty disclaimer

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

189. Warranty disclaimer

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise