Business Contracts

As the seller is not liable for apparent defects that the buyer could have discovered for himself, a distinction must be made between apparent and concealed defects, before assessing the degree of diligence required of the buyer, which will vary according to whether he is a layman or a professional.
An apparent defect is, first and foremost, one that can be detected by a simple visual observation  …

Apparent or concealed defect

As the seller is not liable for apparent defects that the buyer could have discovered for himself, a distinction must be made between apparent and concealed defects, before assessing the degree of diligence required of the buyer, which will vary according to whether he is a layman or a professional.

An apparent defect is, first and foremost, one that can be detected by a simple visual observation  or that is foreseeable due to the condition of the item. Thus, a buyer who has noticed cracks during pre-sale inspections of the building cannot bring an action under warranty . Similarly, the poor condition and heavy wear and tear of a vehicle at the time of sale render the existence of a defect foreseeable to any reasonably informed buyer . Defects that are detectable as soon as the item is put into service are also not classified as latent defects . According to the Court of Cassation, the buyer's action for warranty against latent defects cannot be upheld by the court if it is clear from its own findings that the defects are apparent, and the buyer was able to ascertain this for himself . 

Conversely, the action is perfectly justified when the defects are not visible to the buyer, and only become apparent during the course of infrequent manoeuvres  or breakdowns , or can only be detected during an expert appraisal , by dismantling the item , or by simply visiting the site . Secondly, if a defect is revealed by the seller  , it constitutes an apparent defect. A buyer who has obtained a reduction in price due to defects in the item cannot claim, in good faith, that the defects were not brought to his attention . 

Concealed defects imply that the seller deliberately prevented the buyer from contracting with full knowledge of the facts . A defect is not apparent when cracks are concealed , when the general poor condition of a frame is deliberately concealed , or when a serious accident to the vehicle  or a defect that has not been repaired ,  are not brought to the buyer's attention. Similarly, defects that cannot be discovered without reassembling the bases of a boat and prior testing, when the vessel was shown to the buyer after the base plates had been removed and out of water, are not apparent .

Cass. 1re civ, 19 October 2004, LawLex200400003421JBJ, holding that a defect is not hidden when a simple visual inspection enables the buyer to see the overall poor condition of the boat sold and the need to undertake work before being able to sail it. See also CA Douai, 10 May 2012, LawLex201200001540JBJ: the deterioration of the vehicle's door barrel, leaky doors that let in water and air, and the defect in the reverse gear, which makes a jerky noise as soon as it is engaged, constitute apparent defects insofar as they can be observed when the vehicle is tested; CA Paris, 19 March 2014, LawLex201400000524JBJ: the cloudy, milky appearance of a perfume constitutes an apparent defect when the buyer could have noticed it following a simple visual inspection when unpacking the product. 

Cass. 3e civ, 7 July 2004, LawLex200400003426JBJ.

Cass. com. 18 June 1996, LawLex200500005018JBJ: the buyer of a business cannot complain about the risk of the restaurant closing, even though he was informed of this risk before the sale; Cass. 1re civ, 22 November 1995, LawLex200500003853JBJ; 30 January 2008, LawLex200800001017JBJ; 8 January 1991, LawLex200500005459JBJ : the action for warranty against latent defects must be dismissed since, at the time of signing the deed of sale, the purchasers were informed of the presence of termites and could not, in view of the parasite report provided, have had any doubt as to the infestation of the majority of the wooden elements; CA Fort-de-France, 16 February 2016, LawLex201600000457JBJ : the defect is apparent when the unsuitability of the thing for strong exposure to the sun has been pointed out by the manufacturer in its commercial and technical documents.

Cass. 1re civ, 13 January 1993, LawLex200400003434JBJ.

CA Angers, 24 January 2012, LawLex201200001669JBJ, noting that the care taken to conceal the coarse cutting of the floor of a vehicle from the eyes of both professionals and laymen, with the aim of transforming it into a vehicle for transporting people with reduced mobility, is the result of an intentional action which engages the seller's liability towards his purchaser on the basis of Article 1645 of the Civil Code.

Cass. 3e civ,  21July 1998, LawLex200500005036JBJ, upholding CA Bourges, 29 August 1996, LawLex200500005575JBJ.

Cass. 3e civ, 26 June 2002, LawLex200400003625JBJ.

Cass. 1re civ. 24 October 2000, LawLex200500005496JBJ; 

CA Bordeaux, 16 May 2012, LawLex201200001539JBJ: the misalignment of the front axle of a vehicle which had not been repaired at the date of sale and which was not reported by the seller constitutes a latent defect.

CA Bordeaux, 11 April 2013, LawLex201400001660JBJ.

Cass. 1re civ, 3 March 1993, LawLex200500004981JBJ, upholding CA Montpellier, 10 October 1990, LawLex200500009860JBJ. See also. CA Metz, 18 May 2011, LawLex201200001673JBJ, considering that the external appearance of the vehicle could only lead a reasonably well-informed and diligent buyer to suspect a bodywork corrosion problem; CA Rennes, 13 January 2012, LawLex201200001612JBJ, for a dilapidated state of an old ship likely to reveal significant corrosion to any moderately attentive buyer; CA Aix-en-Provence, 8 March 2012, LawLex201200001592JBJ, noting that the advanced state of wear of the joints of a retractable roof can be detected by a buyer during the basic checks he must carry out when purchasing a vehicle more than eight years old with a sunroof and whose previous parking conditions are unknown.

Cass. com. 1 October 1991, LawLex200500004335JBJ; Cass. 1re civ. 20 December 2000, LawLex200500004355JBJ, upholding CA Paris 24 September 1998, LawLex200500005558JBJ: defects noted by a lay purchaser from the first use of a vehicle cannot be considered as hidden.

Cass. 1re civ, 1 July 2010, LawLex201200001462JBJ. See previously Cass. 1re civ., 7 January 1982, LawLex202200003060JBJ: the non-professional seller of a pleasure boat cannot be held liable for apparent defects affecting the vessel sold when they are clearly evident, even to a non-professional buyer.

CA Toulouse, 3 May 2018, LawLex201800000706JBJ.

CA Paris, 2 November 2017, LawLex201700001846JBJ.

CA Bourges, 29 June 1992, LawLex200500005563JBJ.

CA Toulouse, 15 September 2010, LawLex201200001875JBJ. See also. CA Caen, 28 January 1997, LawLex200500004127JBJ: problems resulting from an attack by capricorn beetles cannot be considered as apparent since the lay purchaser could not be aware of them at the time of sale, as the affected parts were covered by elements that could not be attacked. 

Cass. 3e civ, 16 September 2003, LawLex200500003825JBJ, upholding CA Nîmes, 8 November 2001, LawLex200500004146JBJ, instability of a plot of land undetectable during a site visit.

Business Contracts

195. Apparent or concealed defect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

195. Apparent or concealed defect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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