Business Contracts

Article 1641 of the Civil Code distinguishes between two types of defects: those which render the item unfit for its intended use, and those which diminish that use. In the latter case, the text specifies that they must be such “that the buyer would not have acquired it, or would have given a lesser price for it, had he known of them”. The buyer can therefore not claim the seller's warranty if it is established that the defect would not have dissuaded him from acquiring the item at the same price if he had been aware of it before the sale .

For example, faults affecting sophisticated functions which are decisive factors in the buyer's choice, but which do not compromise his safety, constitute latent defects, since if that buyer had been aware of the fragility and unreliability of this equipment, he would not have bought the vehicle in question and would have chosen another prestige vehicle or another brand . Similarly, the failure of a cell phone's video playback system, even though it does not affect the phone's primary communication function, constitutes a latent defect when the options that come with the device are decisive features in the buyer's choice .

On the other hand, when the defect renders the thing unfit for purpose, it is not necessary to ascertain whether ignorance of the defect played a decisive role in the buyer's consent . Not only does Article 1641 of the Civil Code not provide for this, but it is implausible that the buyer would have deliberately acquired the thing if he had known that it would turn out to be unusable.

Cass. 1re civ., 13 May 1981, LawLex202200000332JBJ.

CA Rouen, 20 February 2008, LawLex201200001818JBJ.

CA Paris, 27 May 2010, LawLex201200001901JBJ.

Cass. com. 7 February 1995, LawLex200500003693JBJ.  See also CA Agen, 5 September 2012, LawLex201300000209JBJ.

204. Defect vitiating consent