Business Contracts

Under Article 1641 of the Civil Code, the debtor of the warranty against latent defects is the seller . The status of seller includes not only the person who has intervened at the last rung in the chain of successive sales  in relation to the final purchaser, but also all persons who have successively intervened in this capacity. Thus, the intermediary seller , like the manufacturer , assumes the  …

Identifying source of responsibility

Under Article 1641 of the Civil Code, the debtor of the warranty against latent defects is the seller . The status of seller includes not only the person who has intervened at the last rung in the chain of successive sales  in relation to the final purchaser, but also all persons who have successively intervened in this capacity. Thus, the intermediary seller , like the manufacturer , assumes the status of seller. However, the consumer's right to trace the product back to its manufacturer does not absolve the final seller  from liability. Similarly, the importer of a vehicle cannot claim that an intermediary seller is not the manufacturer or constructor, since the only status that counts is that of seller . On the other hand, an undertaking which has been involved in the repair of the vehicle  or in the expertise transactions , notably because it is the French representative of the brand , but not at the sale stage , cannot be held liable for warranty against latent defects.

The status of seller may also be transferred in the event of the assignment of the legal entity. In the automotive sector, for example, a vehicle reseller who takes over a dealership also assumes the obligations arising from all contractual and legal warranties applicable to new or used vehicles sold by his predecessor .

The person who executed the deed of transfer in his own name and who is recorded as the owner on the registration certificate must also be considered as the seller, even if the payment was made in the name of another person . Similarly, it is immaterial whether the defendant in the suit sold someone else's property when he or she was only the lessee, since the warranty against latent defects is linked not to ownership but to the sale of the property .

The seller may appoint a person to act on his or her behalf. Case law considers that the agent can be considered as the seller when this person himself issues invoices presenting him as such, and further provides a guarantee . In effect, in such a case, the court considers that the purchaser may legitimately believe that the intermediary with whom he is contracting is the seller. The intermediary is liable for warranty against latent defects if he cannot prove, or even assert, that he in fact relied on his actual capacity in his dealings with the buyer . Even when the buyer was aware of his status as an agent, the courts sometimes go beyond appearance and oblige the agent to cover the warranty against latent defects .

Lastly, as the warranty against latent defects applies exclusively to the contracts of sale, the conclusion of such contracts is, in principle, the triggering event for the seller's obligation under Article 1641 of the Civil Code. Even if the date of the claim arising from the warranty obligation is of particular interest in the context of insolvency proceedings, since Article L. 622-21 of the Commercial Code prohibits any legal action by creditors in respect of claims arising prior to the opening of insolvency proceedings, the Court of Cassation considers that the claim arising from the warranty against latent defects originates on the date of conclusion of the sale, and not on the date of the discovery of the defect , with the result that it must, on pain of being barred from taking action (forclusion), be declared as a liability of the seller placed in receivership, with the result that that any claim for warranty against latent defects subsequent to the opening of insolvency proceedings will be automatically inadmissible .

Successive sellers of a vehicle are liable for warranty against latent defects to sub-buyers, even if the claim against the original seller is time-barred, CA Rouen, 14 November 2018, LawLex201800001791JBJ.

CA Pau, 29 October 2019, LawLex201900001313JBJ: the intermediary seller who himself has acquired an already defective vehicle cannot, in his capacity as a professional, be released from his warranty obligation towards the final purchaser; CA Rouen, 27 November 2019, LawLex201900001462JBJ.

CA Versailles, 21 February 2013, LawLex201300000323JBJ.

CA Douai, 23 March 2017, LawLex201700000660JBJ.

CA Montpellier, 18 December 2002, LawLex200700000709JBJ: a person who issues invoices presenting himself as the seller and offering his warranty for a period of twelve months is liable under warranty against latent defects, even if the check he receives in payment is subsequently passed on to a third party who pays him a commission, such agreements being unenforceable against the purchaser. Cf. CA Paris, 28 June 2012, LawLex201200001512JBJ: the purchaser of a vehicle cannot seek an order against an agent, even a professional and/or one acting in bad faith, to repay the purchase price of the vehicle, since only the seller and the purchaser are liable for mutual restitution.

CA Versailles, 26 November 2009, LawLex201200001871JBJ; CA Aix-en-Provence, 9 May 2012, LawLex201200001548JBJ; Cass. civ. 1re, 18 December 2014, LawLex201500000212JBJ, for the agent of the seller of a vehicle on eBay.

CA Versailles, 3 May 2002, LawLex200700000724JBJ, recognizing the seller status of a garage owner mandated to sell a vehicle in the name and on behalf of a third party. Cf. CA Rennes, 4 July 1997, LawLex200700000725JBJ.

Cass. com., 12 January 1982, LawLex200600001740JBJ and LawLex200600001741JBJ: the claim for warranty against latent defects derives from the seller's contractual liability and, in the case of frost-resistant tiles, originates in the contract of sale, so that the date of revelation of the defect is irrelevant in determining whether or not the claim predates the opening of the insolvency procedure; 18 January 2005, LawLex200600001649JBJ.

Cass. com, 8 June 1999, LawLex200500004309JBJ; 18 February 2003, LawLex200500003855JBJ.

CA Rennes, 6 September 2007, LawLex201200001895JBJ. See also CA Douai, 30 May 2005, LawLex200700000710JBJ, holding that the purchaser can take action against the seller for warranty against latent defects, even if the seller is only the manufacturer of the item and the defect affecting the item relates to a design defect and not to its construction; CA Rennes, 22 June 2018, LawLex201800000976JBJ: the warranty against latent defects is owed by both the designer and the manufacturer of the item.  See however Cass. 1re civ., 9 June 2017, LawLex201700001025JBJ, which emphasizes that the alleged manufacturer cannot be sued under warranty when the objects appraised were not labelled with their identification plates making it possible to establish that they were indeed manufactured by that party.

Cass. 1re civ, 11 January 2017, LawLex201700000154JBJ.

CA Montpellier, 8 March 2017, LawLex201700000570JBJ. See a contrario CA Rennes, 22 November 2019, LawLex201900001444JBJ, holding that the importer and distributor of vehicles of the brand concerned for France is not liable for warranty against latent defects when it did not intervene in any capacity in the marketing of the thing.

CA Aix-en-Provence, 27 May 1997, LawLex200700000721JBJ. 

CA Toulouse, 19 October 2010, LawLex201200001905JBJ.

CA Bastia, 22 March 2017, LawLex201700000623JBJ: in the absence of proof of the licensor's intervention in the sales chain, the dealer cannot seek the licensor's warranty; CA Toulouse, 22 May 2017, LawLex201700000961JBJ: when the vehicle in question has been imported from Germany by a garage, the brand's French representative cannot be sued for warranty against latent defects since he is neither the manufacturer, importer nor seller. See previously, CA CA Versailles, 22 April 2003, LawLex2004000080JBJ; 23 May 2013, LawLex201400001546JBJ: the manufacturer's French representative cannot be held liable for warranty against latent defects towards the final purchaser of a vehicle, when he has not participated in the marketing of the vehicle either as the original seller or as an intermediary seller.

CA Aix-en-Provence, 29 September 2016, LawLex201600001653JBJ, which states that the French representative of a car brand is not liable for warranty against latent defects in the absence of intervention in the sales chain, when the vehicle in question was acquired through the intermediary of a car agent from the brand's Belgian importer, who himself obtained it from the Korean manufacturer. See also CA Toulouse, 27 March 2012, LawLex201200001585JBJ: an undertaking cannot be sued for warranty against latent defects in a vehicle, since it is neither the seller nor the importer, and its role as the manufacturer's representative is limited to the contractual warranties granted by the manufacturer and the coverage of repair and maintenance services provided within the network under commercial agreements customary in the motor trade.

CA Angers, 8 September 2009, LawLex201200001888JBJ.

Business Contracts

216. Identifying source of responsibility

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Les décisions de justice citées dans ce paragraphe :

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216. Identifying source of responsibility

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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