Business Contracts

An intermediary seller who is sued by his buyer can take action against his own seller if the defect predates their own sale. In this case, the starting point of the period for filing suit is not the date on which the buyer or he himself became aware of the defect, nor the date of the first joint expert appraisals , but the date on which he was summoned by his buyer .
In practical terms, this date …

Recourse (action récursoire)

An intermediary seller who is sued by his buyer can take action against his own seller if the defect predates their own sale. In this case, the starting point of the period for filing suit is not the date on which the buyer or he himself became aware of the defect, nor the date of the first joint expert appraisals , but the date on which he was summoned by his buyer .

In practical terms, this date is that of the date of the writ of summons on the merits  - which indicates the purchaser's intention to invoke the warranty against latent defects - and not that of the date of the writ of summons for expert appraisal, the purpose of which is to determine the causes of the damage . The time-limit set out in article 1648 of the Civil Code therefore begins to run, at the earliest, on the date of the declaration filed with the clerk's office by the sub-purchaser  and may be deferred until the date of the final judgment .

By way of exception, some courts have set the starting point of the period for recourse at the date of knowledge of the defect by the intermediary seller, notably on the grounds that there was ample proof of the intermediary seller's knowledge of the defect before the date of the summons on the merits . The date of knowledge of the defect by a dealer has also been used to mark the starting point of the time-limit for action, in a dispute which has evolved after an initial judgment, thanks to new expert findings which made it possible to determine the precise source of a defect . In the absence of a writ of summons on the merits, where the buyer has obtained an advance payment from the interim relief court which he considers satisfactory, it has also been ruled that the period for filing a recourse action runs from the date of knowledge of the defect by the intermediary seller, i.e. from the date of filing of the expert's preliminary report on the basis of which the sub-purchaser obtained the advance payment .

Cass. com. 24 March 2004, LawLex200500003950JBJ, censuring on this point CA Lyon, 9 November 2001, LawLex200500005521JBJ.

CA Poitiers, 9 July 1991, LawLex200500005458JBJ, overruling CA Poitiers, 30 November 1988, LawLex200500009859JBJ; 22 March 1994, LawLex200500004989JBJ; Cass. 1re civ, 24 October 2000, LawLex200500008953JBJ; Cass. com, 1 April 2003, LawLex200300001374JB; Cass. civ. 3e, 20 October 2004, LawLex200400003412JBJ; Cass. 1re civ., 13 March 2008, LawLex201200001467JBJ; Cass. 3e civ., 11 March 2014, LawLex201400000507JBJ; 15 June 2017, LawLex201700001112JBJ. - See also  CA Colmar, 13 November 2007, LawLex201200001943JBJ; CA Douai, 23 May 2011, LawLex201200001909JBJ; CA Angers, 13 February 2018, LawLex201800000296JBJ.

CA Aix-en-Provence, 13 May 2014, LawLex201400002032JBJ; CA Montpellier, 13 October 2015, LawLex201600000394JBJ.

Cass. com, 22 May 2012, LawLex201200001444JBJ.

Cass. com. 17 October 2012, LawLex201300000231JB.

Cass. 1re civ, 25 February 2016, LawLex201600000506JBJ.

CA Paris, 22 March 2002, LawLex200500003796JBJ.

CA Angers, 8 September 2009, LawLex201200001888JBJ: the manufacturer's claim six months after the dealer became aware of the defect, thanks to the expert's new findings on the exact origin of a defect affecting a vehicle, satisfies the short period (bref délai) condition.

CA Agen, 13 September 2000, LawLex200300004144JBJ, upholding by Cass. 1re civ, 25 February 2003, LawLex200300003535JBJ.

Business Contracts

228. Recourse (action récursoire)

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Les notions juridiques connexes

228. Recourse (action récursoire)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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