Business Contracts

Article 1644 of the Civil Code stipulates that, under the warranty against latent defects, the buyer has the option of returning the item and obtaining restitution of the price (action for rescission), or keeping the item and obtaining restitution of part of the price (action for reduction of the price). 

The exercise of this option is discretionary  and is the exclusive prerogative of the buyer. The buyer's freedom of choice as to the action he wishes to take may not be modified by contract: any clause that hinders the free exercise of the action will be rejected by the courts . The purchaser may also exercise both actions simultaneously, one as principal and the other as subsidiary , or successively . However, he or she may no longer act on the basis of one if the other has been decided, in the same factual circumstances, by a judgment that has the force of res judicata .

The court does not have to give reasons for its decision on the buyer's choice , nor can it substitute one action for another . Thus, when only the action for rescission has been brought, the court cannot, for whatever reason, declare the action for reduction of the price to be more appropriate  or consider that the seriousness of the defect does not justify rescinding the sale . On the other hand, when an action for rescission has been brought and an action for reduction of the price has been brought in the alternative, the court may, on the basis of a sovereign assessment of the seriousness of the defect invoked, consider that it is not such as to justify rescission of the sale, but only a reduction of the price .

The buyer remains free to take any action he wishes, even when the seller offers to repair the defective item . Neither the refusal to accept such a proposal , nor that the repairs are minor , nor that they have been carried out without the buyer's express consent , has any influence on the admissibility of the buyer's action. On the other hand, a buyer can no longer bring an action for rescission or reduction of the price when the defect has disappeared, either because the item has been repaired or because it has been replaced, notably under the contractual warranty offered by the seller . However, as the Court of Cassation has held, even if the purchaser of an item containing a latent defect, who accepts that the seller should repair the item can no longer invoke the action in warranty once the original defect has disappeared, this solution cannot be extended to the repair of the latent defect by a third party, which, since the latter does not concern the contractual relationship between the purchaser and the seller, cannot eliminate the action for reduction of the price, which enables the purchaser to obtain restitution of the price up to the amount of the cost of the work required to remedy the defect .

Cass. 3e civ, 17 February 1988, LawLex200700000650JBJ; CA Bordeaux, 21 May 2002, LawLex200700000657JBJ; CA Versailles, 20 September 2007, LawLex201200001847JBJ.

Cass. 3e civ, 11 May 1994, LawLex200500005487JBJ clause substituting the warranty against latent defects for the warranty on buildings to be constructed.

Cass. 1re civ, May 23, 1995, LawLex200500003700JBJ CA Rouen, 30 January 2001, LawLex200300003672JBJ; CA Rennes, 6 December 2002, LawLex200700000743JBJ; CA Versailles, 20 September 2007, LawLex201200001847JBJ; CA Rennes, 2 March 2018, LawLex201800000430JBJ; CA Orléans, 18 June 2018, LawLex201800000981JBJ.

CA Montpellier, 16 May 2013, LawLex201400001612JBJ; Cass. 1re civ., 13 May 2014, LawLex201400000712JBJ; CA Bordeaux, 12 May 2016, LawLex201600000989JBJ; CA Pau, 7 November 2016, LawLex201600001873JBJ.

Cass. 1re civ, 23 May 1995, LawLex200500003700JBJ; CA Montpellier, 10 June 2003, LawLex200700000659JBJ; CA Colmar, 12 May 2005, LawLex200700000667JBJ; CA Lyon, 17 November 2011, LawLex201200001892JBJ; CA Lyon, 14 October 2014, LawLex201400001158JBJ; CA Cass. com, 15 December 2015, LawLex201600000253JBJ.

CA Poitiers, 17 May 2013, LawLex201400001611JBJ. 

CA Montpellier, 7 March 2017, LawLex201700000559JBJ, nevertheless holding that the buyer may seek compensation for any harm suffered as a result of the defect; CA Paris, 23 January 2020, LawLex202000000118JBJ. Cf. CA Versailles, 5 December 2019, LawLex201900001509JBJ, while a buyer who has accepted the repair of a faulty item can no longer bring an action under the warranty against latent defects, the repairs must have led to the disappearance of the defect and, a fortiori, not created new ones.

Cass. 3e civ, 8 February 2023, LawLex202300002130JBJ.

Cass. com, 6 March 1990, LawLex200500005444JB; CA Lyon, 14 January 2011, LawLex201200001708JBJ; Cass. 3e civ, 25 June 2014, LawLex201400001085JBJ.

Cass. com, 12 October 1999, LawLex200500003962JB. 

Cass. com, October 12 1999, LawLex200500003962JBJ; CA Orléans, December 13 1999, LawLex200700000656JBJ; CA Toulouse, 20 September 2005, LawLex200600001702JBJ; CA Bordeaux, 25 January 2012, LawLex201200001667JBJ. See also Cass. 1re civ, 18 January 2023, LawLex202300004693JBJ.

Cass. 3e civ, 20 October 2010, LawLex201200001597JBJ.

Cass. 1re civ, 22 November 1988, LawLex200500008948JBJ; CA Bordeaux, 29 November 1994, LawLex200500004245JBJ; Paris, 6 October 1995, LawLex200500004362JBJ.

CA Lyon, 3 October 2002, LawLex200700000658JBJ. See also, excluding arguments to this effect by the seller, CA Amiens, 19 April 2013, LawLex201400001590JBJ. Contra, CA Douai, 30 May 2013, LawLex201400001597JBJ.

Cass. 3e civ, 17 February 1988, LawLex200700000650JBJ; 16 December 2014, LawLex201600000233JBJ; CA Montpellier, 22 May 2001, LawLex200500004126JBJ.

CA Montpellier, 8 March 2017, LawLex201700000570JBJ.

210. Principle