Business Contracts

Under certain conditions, the intermediary seller can take recourse action against his own seller: either, when summoned by his buyer on the basis of warranty against latent defects, he calls his own seller as guarantor, in order to be covered from any possible conviction, or he waits until he has been convicted before taking recourse against the latter. 
For his action to be admissible, he must t …

Recourse action

Under certain conditions, the intermediary seller can take recourse action against his own seller: either, when summoned by his buyer on the basis of warranty against latent defects, he calls his own seller as guarantor, in order to be covered from any possible conviction, or he waits until he has been convicted before taking recourse against the latter. 

For his action to be admissible, he must therefore have an interest in bringing proceedings.  An intermediary seller who has not been sued in warranty by his buyers does not have a direct and certain interest in taking preventive action against the manufacturer .

The defect must also predate the sale , i.e. it must be a manufacturing or construction defect. Indeed, the professional seller, as a mere supplier, cannot be held responsible for latent defects resulting from a design error, which is the sole responsibility of the manufacturer . Consequently, the manufacturer  or importer  of a defective vehicle is obliged to indemnify the seller against any judgments handed down against it if the defect results from a manufacturing fault. On the other hand, a contractor ordered to guarantee latent defects affecting concrete he has delivered and poured cannot sue his supplier when there is nothing to show that the defect is directly and immediately linked to the cement itself, to its quality and/or to its original state .

Furthermore, the fault of the intermediary seller may, in certain cases, exonerate the original seller from his warranty obligation. This is the case when the manufacturer, alerted to the existence of the defect, has sent out circulars or information sheets to its resellers, detailing the steps to be taken to avoid the occurrence of defects, which the intermediary seller has not complied with . Thus, in the automotive sector, the intermediary seller cannot sue the manufacturer when he has failed to comply with the essential recommendations that the manufacturer provided in the context of a recall campaign , and which would have enabled any defects to be remedied . Conversely, a manufacturer who fails to prove that he warned the dealer of the risks likely to affect the vehicle sold , or who himself failed to be sufficiently vigilant in implementing his recall action , cannot escape liability.

Finally, the intermediary seller, defendant to an action for rescission, cannot call upon his own seller to provide a guarantee for the restitution of the price. In effect, since the rescission of the sale entails the return of the defective item to the seller, the latter can no longer enforce the warranty for loss of price against his own seller, as this does not constitute a reparable harm . The mechanism of mutual restitution also justifies the fact that successive sellers cannot be ordered jointly to restitute the price for the benefit of the sub-purchaser, since the restitution of the thing can only be made to one of them . According to the court, the intermediate seller's warranty claim against the manufacturer is therefore a claim for damages based on Article 1645 of the Civil Code, which cannot cover the sale price .

CA Pau, 27 November 2019, LawLex201900001463JBJ.

CA Rouen, 23 May 2002, LawLex200500004139JBJ; CA Aix-en-Provence, 28 February 2017, LawLex201700000469JBJ: the seller's recourse action against its own supplier is founded when the defects invoked are due to a design defect, and not to a poor adaptation of the item to the end-buyer's needs that could have been remedied. See earlier, Cass. com, 24 June 2003, LawLex200300003414JBJ, holding that the intermediary seller of a product, sued for warranty against latent defects, cannot seek the manufacturer's warranty on the grounds that the defect is due to the unsuitability of the components delivered by the latter, since, as a professional, it is his responsibility to check their quality. 

CA Nîmes, 23 May 2019, LawLex201900000741JBJ.

Cass. 1re civ, 28 March 1995, LawLex200700000771JBJ; 14 January 2003, LawLex200700000773JBJ; 26 September 2006, LawLex200700000774JBJ; Cass. com, 7 December 2010, LawLex201200001557JBJ, See also, CA Rennes, 22 February 2008, LawLex201200001819JBJ; 29 October 2010, LawLex201200001780JBJ; CA Montpellier, 9 November 2010, LawLex201200001855JBJ; CA Rennes, 2 December 2016, LawLex201600002090JBJ; 22 November 2019, LawLex201900001444JBJ.

CA Lyon, 14 January 2011, LawLex201200001708JBJ; CA Pau, 17 August 2011, LawLex201200001691JBJ; CA Grenoble, 12 May 2014, LawLex201400002037JBJ. See contra: CA Rennes, 7 January 2011, LawLex201200001877JBJ: the sub-purchaser may bring an action in warranty against latent defects against his seller and against the original seller, in respect of whom he has a direct contractual action, these sellers being jointly and severally liable towards him.

CA Pau, 18 April 2013, LawLex201400001567JBJ.

CA Rennes, 4 September 1996, LawLex200500005518JBJ.

CA Nîmes, 15 May 1997, LawLex200400001964JBJ.

CA Riom, 8 April 2013, LawLex201400001650JBJ. See also. CA Colmar, 14 November 2007, LawLex201200001943JBJ, concerning a kitchen manufacturer.

CA Montpellier, 13 March 2012, LawLex201200001644JBJ. See also CA Reims, 19 April 2016, LawLex201600000861JBJ, specifying that an intermediary seller who does not establish that the defect in question is of a recurrent nature, in the absence of any action to recall vehicles of the same model or information from consumer associations or the manufacturer itself, cannot invoke the latter's warranty.

Cass. 1re civ, 11 April 1995, LawLex200500005012JBJ; CA Lyon, 14 January 2011, LawLex201200001708JBJ.

Cass. com, 3 May 2012, LawLex201200001447JBJ.

CA Rennes, 14 February 2008, LawLex201200001897JBJ, holding that the original seller who has fulfilled his obligation of information, insofar as he has demonstrated that he has informed his dealers of the course of action to take concerning a latent defect affecting a vehicle, cannot be called on under warranty; CA Nancy, 6 January 2011, LawLex201200001709JBJ; CA Toulouse, April 10, 2012, LawLex201200001555JBJ, holding that the intermediary seller who failed to comply with the manufacturer's recommendations shares 90% of the liability, while the manufacturer shares 10%.

CA Douai, 11 March 2012, LawLex201200001525JBJ ; CA Poitiers, 25 March 2016, LawLex201600000717JBJ, for a reseller outside the manufacturer's primary network, who did not receive the manufacturer's notice of defect. Also see Cass. 1re civ, 2 October 2013, LawLex201400000357JBJ: a manufacturer who did not issue a technical opinion specifying the installation requirements until after the sale, and did not inform the reseller of the particular technique to be used in collective kitchens, cannot be released from his warranty obligation; CA Aix-en-Provence, April 10, 2012, LawLex201200001575JBJ: a manufacturer whose warnings did not prevent the defects from worsening is liable to the intermediary seller. 

Business Contracts

218. Recourse action

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Les notions juridiques connexes

218. Recourse action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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