Business Contracts

The professional purchaser is expected to be more vigilant than the layperson. When the buyer is in the same line of business as the seller, he is presumed to be aware of the defect. However, this presumption can be rebutted by proving that the flaw is undetectable or that fraud has been committed. The courts are less severe when dealing with professionals who are not in the same field as the sell …

Professional purchaser

The professional purchaser is expected to be more vigilant than the layperson. When the buyer is in the same line of business as the seller, he is presumed to be aware of the defect. However, this presumption can be rebutted by proving that the flaw is undetectable or that fraud has been committed. The courts are less severe when dealing with professionals who are not in the same field as the seller.

When the buyer's specialty is the same as the seller's, the courts consider that his professional skills give him a better knowledge of the product. In this case, the degree of diligence expected is greater, and the buyer must inspect the item more carefully than is required of a layperson . Thus, a product defect that could have been detected by the professional in the specialty in question had he carried out the appropriate inspections and tests does not constitute a latent defect . A buyer in the same specialty as the seller who fails to check the condition of the merchandise, even though visual indicators and his knowledge of the materials would have enabled him to detect the defects, cannot invoke the warranty for latent defects . Similarly, a buyer who presents himself on the internet as a specialist in the field with twenty years' experience cannot invoke the existence of a latent defect when an ordinary inspection would have enabled him to discover it . Indeed, a buyer in the same field as the seller is presumed to be aware of the defects affecting the item, even if this presumption is not irrebuttable, in contrast to the presumption applicable to a professional seller .

Since the presumption that a defect has been discovered does not apply when it could not have been detected at the time of sale, even by a professional buyer , the court must check whether the latter carried out a normal and diligent examination of the item, commensurate with his technical skills, and whether he was actually in a position to detect it . A defect is undetectable, even for a professional buyer, when only very thorough examinations would have enabled him to discover it at the time of sale . This is the case when the discovery of the defect required the dismantling of the equipment , an in-depth study of the subsoil  or prolonged use of the item . In effect, the court cannot expect a buyer to carry out procedures that are not customary . Like the undetectable nature of the defect, fraud on the part of the seller removes the presumption of knowledge of the defect on the part of the buyer of the same specialty .

The professional purchaser, who is not of the same specialty as the seller, must demonstrate a degree of diligence greater than that expected of a lay purchaser, but less than that required of a professional purchaser of the same specialty. Thus, even if he is not presumed to know the defects of the thing, the professional purchaser who does not have the same specialty as his seller must proceed before the sale to the technical verifications of a reasonably diligent user . A reasonably diligent buyer of a different speciality may nevertheless invoke the warranty against latent defects if the defect is undetectable in view of his lack of particular expertise in the field in question . A defect in the gears of an agricultural loader, for example, which could only be discovered after the gearbox had been dismantled during the expert inspection, constitutes an undetectable defect . Similarly, defects affecting a ship cannot be considered apparent to a professional purchaser of a different speciality, all the more so when they were only latent at the time of delivery . The status of purchaser of a different speciality is assessed in the person of the purchaser himself, and not of any persons assisting him .

Cass. com. 26 March 2013, LawLex201400000366JBJ: a professional alerted to the risks presented by the PCP in wooden crates and who has nevertheless chosen to acquire second-hand pallet crates without carrying out the elementary checks incumbent on a well-informed professional, which would have enabled him to see the defect for himself, cannot bring an action for warranty against latent defects.

CA Paris, 7 September 2017, LawLex201700001437JBJ.

Cass. com. 5 April 2016, LawLex201600000918JBJ

Cass. com. 23 November 1999, LawLex200500004308JBJ: a defect in galvanized sheet metal coils cannot be detected, even by a professional buyer, since it can only be discovered by unrolling the coils, which is not customary.

CA Toulouse, 1 June 1995, LawLex200500005539JBJ.

CA Paris, 6 October 1995, LawLex200500004362JBJ.

Cass. com, 10 June 1997, LawLex200500005494JBJ : the defect affecting a mechanical digger, considered by the expert to be latent for a lay buyer, must also be latent for the electrical professional, who has no particular knowledge of construction machinery; CA Nîmes, 18 September 2014, LawLex201600000296JBJ, holding that even if he had been somewhat careless in purchasing a used vehicle remotely without carrying out any road tests or visual examinations, the defects affecting the thing are hidden for a professional with a different specialty from that of the seller, when they were not detected during the technical inspection that preceded the sale and could only have been revealed by an expert appraisal.

CA Amiens, 31 January 2019, LawLex201900000171JBJ. See also CA Paris, 23 January 2020, LawLex202000000118JBJ, the problem resulting from the faulty assembly of a nut during the manufacture of a tractor cannot be detected by a buyer with a different speciality, since it can only be discovered by dismantling the tractor.

CA Bordeaux, 29 November 1994, LawLex200500004245JBJ.

Cass. com, 8 July 1999, LawLex200500003963JBJ; 8 July 2003, LawLex200300003412JBJ, stating that a defect in the thing sold cannot be considered as apparent when it cannot be detected by a normally diligent buyer, even following a careful examination, with the result that the court is not obliged to investigate whether the competent mechanics who accompanied the buyer could have discovered it.

Cass. com. 5 February 2020, LawLex202000000274JBJ.

CA Versailles, 7 March 2017, LawLex201700000567JBJ.

Cass. com, 27 November 1991, LawLex200300003018JBJ; CA Rouen, 7 June, 1990, LawLex200400001844JBJ: the purchaser, a hospitality professional, cannot claim ignorance of the defect resulting from new regulations applicable to the classification of hotel establishments, even if he was not informed of it by the seller; CA Lyon, 14 January 2000, LawLex200300004437JBJ: defects in the equipment of a mechanical digger concerning the replacement of broken windows, a seat, control handles and the absence of an excavation bucket constitute apparent defects for the normally informed professional purchaser.

Cass. com. 13 November 1990, LawLex200300003016JBJ. See in the same sense: Cass. civ. 1re, 4 December 1990, LawLex200300003009JBJ.

CA Agen, 5 September 2012, LawLex201300000209JBJ, specifying that the intermediary seller is entitled to call in the manufacturer's warranty if the flaw was undetectable, even for a professional to whom the presumption of knowledge of the defect applies, and who was not informed of the manufacturer's recall campaign.

Cass. com, 3 January 1991, LawLex200300003017JBJ, defect requiring very thorough laboratory examination; CA Aix-en-Provence, 16 May 2008, LawLex201200001900JBJ, defect requiring laboratory investigation. - Also see Cass. com, 26 March 2013, LawLex201400000364JBJ: the defect resulting from the absence of Epoxy coating in the inner wall of a tank, revealed following an expert report, which ruled out that a visual examination alone could detect it, does not constitute an apparent defect, even for a professional; CA Bordeaux, 23 January 1992, LawLex200500005567JBJ, defect in a boat detectable only by an expert; CA Bordeaux, 15 November 2016, LawLex201600001912JBJ, holding that the fact that the buyer of vitiated corks is a wine professional does not exonerate the seller, since the corking found could only be detected after an expert appraisal.

CA Nîmes, 21 May 1992, LawLex200300004207JBJ: the defect is hidden, even for a professional purchaser in the same field, if it cannot be detected without dismantling the equipment.

CA Versailles, 13 January 2000, LawLex200500005114JBJ.

Business Contracts

197. Professional purchaser

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

197. Professional purchaser

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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