Business Contracts

Article 1648 of the Civil Code initially stipulated that the action for warranty against latent defects “must be brought by the purchaser, within a short period of time [bref délai], according to the nature of the crippling flaws, and the usage of the place where the sale was made”. As the article did not specify either the length of the period which departed from ordinary civil law, or its starti …

Two-year period

Article 1648 of the Civil Code initially stipulated that the action for warranty against latent defects “must be brought by the purchaser, within a short period of time [bref délai], according to the nature of the crippling flaws, and the usage of the place where the sale was made”. As the article did not specify either the length of the period which departed from ordinary civil law, or its starting point, both of which were left to the sole discretion of the trial courts , the considerable freedom given to judges led to a large number of controversial cases and contradictory rulings. Periods of more than two and a half years , twenty months , eighteen months , a year , eight months  or more than six months  have been deemed excessive. The brevity of the time-limit set by the Code was also the source of circumvention strategies involving the use of other grounds rather than the warranty against latent defects: mistake, fraud, lack of conformity, liability in contract or tort, etc.

The question of the compliance of the former “short period"("bref délai") with Article 6(1) of the European Convention on Human Rights was raised on the grounds that it would constitute a breach of the right to a fair trial. This was not the view of the Court of Cassation, which recalled that the right to a court may be restricted "insofar as it is not affected in its very substance by provisions, in particular those relating to limitation periods, which are insufficiently clear and coherent”. In its view, even if Article 1648 does not specify a precise duration, the notion of “short period” is clear in its objective and “simple to apply according to established case law” . The fact that the use of the item may be partially or totally compromised, and the concern to avoid the deterioration of evidence, justify the requirement of a rapid reaction on the part of the buyer. Nevertheless, the Court of Cassation has declared that it is in favor  of an amendment of Article 1648 of the Civil Code.

Ordinance No 2005-136 of 17 February 2005, which transposed Directive No 1999-44 of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees into French law, now repealed and replaced by Directive No 2019/771 of 20 May 2019, partially aligned the regime of the warranty of conformity and  warranty against latent defects: henceforth, the buyer must bring his action within two years from the discovery of the defect. The Court of Cassation has clarified that the new two-year time-limit applies only to contracts entered into after the ordinance came into force, i.e. 19 February 2005, and that the new wording of Article 1648 does not have any interpretative value in relation to the “short period” of former Article 1648 . The clarifications made by the legislator and case law do not, however, fully resolve all the issues raised by the application of Article 1648.

Cass. com. 15 November 1971, LawLex202300005114JBJ; 15 December 2007, LawLex201200001503JBJ.

CA Bordeaux, 12 December 2006, LawLex200700000782JBJ.

CA Rennes, 6 September 2001, LawLex200500005573JBJ; CA Orléans, 14 November 2011, LawLex201200000914JBJ.

Cass. civ. 1re, 14 May 1996, LawLex200400003432JBJ; CA Douai, 28 June 1999, LawLex200500004132JBJ.

CA Chambéry, 29 October 1990, LawLex200500009571JBJ; CA Rennes, 28 November 1997, LawLex200500005614JBJ.

CA Rouen, 8 November 2001, LawLex200500004117JB.

Cass. com, 31 January 1995, LawLex200500003692JBJ.

Cass. civ. 1re, 21 March 2000, LawLex200400003427JBJ.

Cass. civ. 1re, 13 February 2013, LawLex201300000308JBJ.

Business Contracts

226. Two-year period

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226. Two-year period

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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