Business Contracts

Under Article 1643 of the Civil Code, the seller is bound by the warranty against latent defects, even if he was unaware of such defects at the time of sale. When its conditions are met, the warranty applies automatically, without the buyer having to establish any fault, knowledge of the defect or bad faith on the part of the seller, or to identify the originator of the damage or the cause of the  …

Irrebuttable presumption of knowledge of defect.

Under Article 1643 of the Civil Code, the seller is bound by the warranty against latent defects, even if he was unaware of such defects at the time of sale. When its conditions are met, the warranty applies automatically, without the buyer having to establish any fault, knowledge of the defect or bad faith on the part of the seller, or to identify the originator of the damage or the cause of the defect . In effect, case law has established an irrebuttable presumption of knowledge of the defect on the part of the professional seller, in line with European Union law , which cannot be rebutted either by proving good faith  or by showing that the defect is undetectable .

The presumption which applies to a professional only in his capacity as seller does not cease to apply simply because the goods have been sold to a professional buyer . It cannot be enforced against a professional purchaser , in particular to establish joint liability with the seller, even when the purchaser has failed to carry out a rigorous inspection of the products delivered .

This rule also applies to chains of successive sales: the Court of Cassation considers that the original seller cannot invoke the intermediary seller's professional status to escape the latter's recourse action , nor can he avoid the sub-purchaser's direct action by claiming the intermediary seller's professional status and necessary knowledge of the defect . According to the Court of Cassation, the irrebuttable presumption of knowledge by the professional seller of the defect in the thing sold, the purpose of which is to compel the latter, who possesses the skills enabling him to appreciate the qualities and defects of the thing, to carry out a thorough inspection of the item before sale, and meets the legitimate need to protect the purchaser who does not have the same skills, does not disproportionately infringe the professional purchaser's right to a fair hearing guaranteed by Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms .

Cass. com., 29 November 2017, LawLex201700002044JBJ.

ECJ, Case C-339/89 Alsthom Atlantique SA, Judgment of 24 January 1991, LawLex201100000299JBJ.

CA Paris, 5 April 1991, LawLex200500005583JBJ; 8 January 2014, LawLex201400000415JBJ: the seller is responsible for the warranty even if he himself was unaware of the defect.  Contra, CA Aix-en-Provence, 16 May 2008, LawLex201200001900JBJ: the intermediary seller, a professional in the purchase and resale of equipment, has no recourse against his own seller if he fails to demonstrate that the latter was aware of the latent defect affecting the equipment and concealed it from him.

CA Paris, 9 December 1992, LawLex200700000742JBJ; Cass. 1re civ. 16 December 1992, LawLex200500005463JBJ; CA Rennes, 6 December 2002, LawLex200700000743JBJ; CA Riom, 16 January 2003, LawLex200700000744JBJ.

Cass. com, 27 November 1991, LawLex200300003018JBJ.

CA Montpellier, 25 September 2002, LawLex200500004123JBJ: a manufacturer of corks, a renowned professional presumed to be aware of the defects in the thing sold, is liable for damages to a professional purchaser of a different specialty.

Cass. com, 24 April 1990, LawLex200300003015JBJ; CA Grenoble, 22 June 2005, LawLex200600001716JBJ.

Cass. com, 9 February 2010, LawLex201200001573JBJ . See earlier CA Caen, 11 July 2002, LawLex200700000625JBJ; CA Pau, 18 April 2013, LawLex201400001567JBJ.

Cass. 1re civ, 20 June 1995, LawLex200500003698JBJ,  Cf. CA Rouen, 15 September 2004, LawLex200700000713JBJ, holding that the sub-purchaser exercising direct action has no more rights against the original seller than the person to whom the latter immediately sold the thing, and cannot enforce the warranty if that buyer knew of the defect.

Cass. com. 5 July 2023, LawLex202300008939JBJ.

Business Contracts

217. Irrebuttable presumption of knowledge of defect.

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217. Irrebuttable presumption of knowledge of defect.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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