Business Contracts

Current Article 1648 sets the starting point of the two-year period for taking action at the date of discovery of the defect. However, prior to the 2005 reform, the courts considered that the seller's conduct or the existence of amicable settlement discussions could defer the start of the period under Article 1648 of the Civil Code. As some disputes based on previous law are still pending, these r …

Deferral of starting point

Current Article 1648 sets the starting point of the two-year period for taking action at the date of discovery of the defect. However, prior to the 2005 reform, the courts considered that the seller's conduct or the existence of amicable settlement discussions could defer the start of the period under Article 1648 of the Civil Code. As some disputes based on previous law are still pending, these rules should be reviewed.

The attitude of the seller, who reassures the buyer that the defect has stabilized , who intervenes on the item on several occasions, urging the buyer to be patient while awaiting the manufacturer's position , or who leads the buyer to believe that the dispute can be settled amicably, taking months to make known the name of his insurer , justifies the buyer's delay in taking action once the defect has been discovered. On the other hand, according to the Court of Cassation, the seller's bad faith has no bearing on the starting point of the time-limit stipulated in Article 1648 of the Civil Code .

According to the court, the existence of talks between the seller and the buyer with a view to an amicable settlement of the dispute may have the effect of delaying the starting point of the time-limit under Article 1648 to the date of the breakdown of the negotiations . For example, a writ of summons issued eighteen months after the defect appeared was deemed to comply with Article 1648 of the Civil Code, since the buyer had been encouraged to postpone his action by the seller's offers to take back the goods . Similarly, a memorandum of understanding was deemed to interrupt the statute of limitations on warranty against latent defects, and to start the statute of limitations running anew from the date it was signed, and not from the date it was not performed . To benefit from the postponement, the buyer must demonstrate the seller's express willingness to enter into negotiations . On the other hand, the buyer is not entitled to deferment if the parties have not actually discussed an out-of-court settlement to their dispute .

Cass. 3e civ, 16 May 1973, LawLex200700000792JBJ.

CA Orléans, 23 June 2011, LawLex201200001666JBJ.

Cass. com, 22 March 1994, LawLex200700000799JBJ. See also CA Colmar, 2 February 2003, LawLex200400000195JBJ, in a case where the seller had blatantly attempted to defer the implementation of his warranty, invoking talks with his insurer, the appointment of an expert and a trial in Italy which, in reality, were non-existent, the action brought by the buyer more than three years after his discovery of the defect was declared admissible.

Cass. 3e civ, 7 October 2014, LawLex201600000235JBJ, AJDI 2015, 61, which considers that, despite the presence of a clause limiting liability, the time-limit runs from the day when the purchaser had full knowledge of the defect.

Cass. 1re civ, 16 July 1987, LawLex200400003471JBJ; 16 July 1998, LawLex200500005035JBJ; Cass. com, 7 November 2006, LawLex200700000790JBJ; CA Versailles, 11 April 2008, LawLex201200001898JBJ; CA Aix-en-Provence, 16 May 2008, LawLex201200001900JBJ; CA Versailles, 22 October 2009, LawLex201200001815JBJ; CA Douai, 23 May 2011, LawLex201200001909JBJ. See contra, CA Colmar, 7 September 1993, LawLex200600000163JBJ and CA Lyon, 10 April 2003, LawLex200300003415JBJ.

CA Caen, 7 June 1995, LawLex200300004151JBJ; 23 June 2005, LawLex200600001715JBJ; CA Lyon, 9 November 2001, LawLex200500005521JBJ.

CA Aix-en-Provence, 7 September 2012, LawLex201300000227JBJ.

CA Paris, 2 September 1998, LawLex200500004219JBJ; CA Chambéry, 2 February 2007, LawLex200700000783JBJ.

Cass. com, 11 December 2007, LawLex201200001503JBJ.

Business Contracts

229. Deferral of starting point

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

229. Deferral of starting point

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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