Business Contracts

In all cases, the burden of proof of the pre-existence of the defect lies with the purchaser who brings an action under the warranty for latent defects , even when circumstances suggest that the defect necessarily pre-existed the sale. For example, the mere fact that a vehicle broke down on the day of purchase, after having been driven only 80 kilometers, does not absolve the buyer from proving th …

Proof

In all cases, the burden of proof of the pre-existence of the defect lies with the purchaser who brings an action under the warranty for latent defects , even when circumstances suggest that the defect necessarily pre-existed the sale. For example, the mere fact that a vehicle broke down on the day of purchase, after having been driven only 80 kilometers, does not absolve the buyer from proving the pre-existence of the defect . Similarly, the short period between the date of sale and the date of the breakdown, and the limited use of the vehicle during this period, do not carry a sufficient presumption of pre-existence .

Trial courts have full discretion to determine whether or not the defect claimed by the buyer predates the sale. Thus, warranty against latent defects is applicable when the trial courts have found that the fungus that contaminated the bulbs sold was present at the time of delivery . The Court of Cassation is careful to ensure that they identify the circumstances that characterize the date on which the defect arose, and base their findings on factual evidence that establishes its pre-existence . Given that, according to the findings of the expert, the defect affecting the ship's speed reducer was not attributable to wear and tear or an external cause, but had a pre-existing origin at the time of commissioning, and that it is undisputed that the service life of such a reducer is in the region of twenty to thirty years, the Court of Appeal, pointing out that this element of assessment had been submitted to the contradictory discussion, was therefore able to conclude that the gearbox in question suffered from a defect that rendered it unfit for the purpose for which it was intended prior to the sale. However, trial courts are not obliged to follow expert opinions, nor to endorse them .

The difficulty - indeed, in some cases, the impossibility - of proving the pre-existence of the defect, particularly when the item has been destroyed, sometimes leads courts to adopt the proof by elimination method (preuve par retranchement), which consists in eliminating the possible causes of the damage and retaining only the most probable. Thus, according to the courts, a fire in a relatively new, well-maintained, low-mileage vehicle can only be attributed to a construction defect . The pre-existence of the defect can also be presumed by a combination of consistent indicators. A machine is necessarily afflicted by a construction defect if it was sold virtually new, was overhauled shortly before the sale, operated for only 960 hours before the fire, and was used and maintained by the purchaser . The recurrence and extreme frequency of breakdowns affecting an item may also reveal a pre-existing defect, even if the expert has not been able to determine the precise causes . Conversely, the organoleptic deterioration of wines cannot be attributed with certainty to a prior defect in the corks sold by a supplier when insufficient traceability of the conditions under which vats are maintained and corks stored, bottled and the atmosphere in a producer's cellar monitored, means that it cannot be ruled out that these corks may have developed the trichloroanisole molecule in reaction to the trichlorophenol molecules present in the cellar, or even in the vats . Similarly, in the absence of any definite conclusions from the legal expert, the preferred hypothesis of contamination of plants prior to their sale must be ruled out, since the passing of a time-limit of more than ninety days between the date of the alleged contamination and the appearance of the first symptoms appears incompatible with the incubation periods laid down by specialists .

Lastly, the pre-existence of the defect may be inferred from the behavior adopted by the buyer when he discovers the defect, or by the seller, when he is informed of its existence. Thus, the fact that the buyer noticed the effects of a defect very soon after the sale  and expressed to the seller his distrust of the use of the thing sold, enabled the court to uphold the pre-existence of the defect .  The existence of a prior defect is also established when the seller admits the existence of the defect and its undetectable nature in a letter addressed to the buyer  or acknowledges having sold a defective item by voluntarily assuming responsibility for repairing or replacing the item . On the other hand, the mere fact that the manufacturer has issued a technical memo relating to a defect likely to affect certain vehicles does not give rise to an irrefutable presumption that every vehicle manufactured during the period in question is defective, since such a document is of a general nature . Finally, a proposed settlement does not constitute recognition of the defect by the seller, but merely an expression of his willingness to put an end to the dispute on terms which are acceptable to both parties .

CA Douai, 10 May 2012, LawLex201200001540JBJ.

Cass. 1re civ, 20 February 2006, LawLex200500005017JBJ.

CA Montpellier, 19 September 2017, LawLex201700001546JBJ.

CA Rouen, 23 March 2016, LawLex201600000720JBJ.

CA Bordeaux, 16 May 2012, LawLex201200001539JBJ.

CA Colmar, 29 August 2016, LawLex201600001427JBJ. See also CA Pau, 7 November 2016, LawLex201600001873JBJ, holding that the seller's acknowledgement of a manufacturing defect attributable to its supplier establishes proof of a defect existing in embrbryo prior to the sale.

Cass. com, 1 April 1997, LawLex200500005023JBJ, upholding this point CA Aix-en-Provence, 3 June 1994, LawLex200600001799JBJ ; CA Bourges, 7 July 2011, LawLex201200001414JBJ : the latent defect affecting a machine predates the sale, since the manufacturer cannot seriously maintain that it had to replace the original part with a new, more powerful one following the loss, in the absence of any technical difficulty, in order to allow its customers to benefit free of charge from the developments inherent in its products. See Also see CA Angers, 24 January 2012, LawLex201200001671JBJ, holding that the seller's signature on a report under which he undertook to repair the engine, followed by the completion of the work and the commitment he made, at the time the order was placed, to check the timing belt, entailed recognition of liability on his part for the initial defect affecting the vehicle; Cass. civ. 1re, 17 February 2016, LawLex201600000449JBJ, holding that the seller's acknowledgement that he had ceased all relations with the supplier in question due to defects in the products delivered, and his offer to reimburse part of the sum paid by the consumer, establish the pre-existence of the defect.

CA Versailles, 16 February 2012, LawLex201200001652JBJ; CA Nîmes, 26 October 2017, LawLex201700001795JBJ, holding that the distribution of a technical note by the manufacturer, four years after a vehicle was first put on the road, does not constitute recognition of a latent defect, since the document is in no way intended to alert dealers to damage to a vehicle model, but rather to set out a logical fault-finding chart for engine overheating.

CA Bastia, 22 March 2017, LawLex201700000623JBJ.

CA Aix-en-Provence, 8 November 2001, LawLex200600002226JBJ; CA Grenoble, 23 January 2018, LawLex201800000228JBJ. See contra, CA Pau, 26 June 2012, LawLex201200001608JBJ.

Cass. 1re civ, 16 June 1992, LawLex200600002147JBJ.

Cass. com. 18 January 1984, LawLex202200000736JBJ, noting that a court of appeal cannot declare the seller of a tank for petroleum products liable for the harm suffered by the purchaser on the basis of the warranty against latent defects without identifying any circumstances establishing that the alleged defect predated the sale.

Cass. 1re civ., 28 May 2014, LawLex201600000239JBJ.

Cass. 1re civ. 15 July 1999, LawLex200500005040JBJ. See Also see CA Versailles, 4 April 1996, LawLex200600002224JBJ, holding that the defect on a practically new vehicle, which had never been involved in an accident before and on which only the manufacturer's representatives had intervened, could only have originated from a construction defect.

Cass. civ. 1re, 2 décembre 1992, LawLex200500004983JBJ. See, however, CA Grenoble, 23 January 2018, LawLex201800000228JBJ, noting that the mere fact that a motorcycle had been driven only one kilometer between the date of sale and the damage that occurred five months later does not demonstrate the existence of a prior defect, when the buyer, rather than having the defects noted by an expert in the seller's absence, chose to carry out the repairs himself by replacing the allegedly defective parts.

CA Montpellier, 31 December 2008, LawLex201200001883JBJ.

Cass. com. 20 April 2017, LawLex201700000813JBJ.

Business Contracts

193. Proof

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193. Proof

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