Business Contracts

The exercise of the option available under Article 1644 of the Civil Code is, in principle, contingent on the buyer being able to return the vehicle. A buyer who has been negligent , or who has resold the vehicle  and is therefore unable to return it, loses the right to bring an action for rescission (action rédhibitoire)  , but retains the right to bring an action for reduction of the price (acti …

Limits

The exercise of the option available under Article 1644 of the Civil Code is, in principle, contingent on the buyer being able to return the vehicle. A buyer who has been negligent , or who has resold the vehicle  and is therefore unable to return it, loses the right to bring an action for rescission (action rédhibitoire)  , but retains the right to bring an action for reduction of the price (action estimatoire)  or to obtain damages from a seller who was aware of the defects .

Article 1647 of the Civil Code, however, provides for an exception to the obligation to return the item in order to obtain restitution of the price: when the item affected by a latent defect has perished as a result of its poor quality, the seller is liable for the loss and must reimburse the price to the buyer, for whom no fault can be attributed . On the other hand, the provision specifies that if the loss occurred by fortuitous event, it is at the risk of the buyer, who remains the owner . However, the Court of Cassation recognizes the buyer's right to obtain, through an action for reduction of the price, if the item which perished by a fortuitous event was found to have a sufficiently serious latent defect .

Finally, the application of insolvency law may paralyze the buyer's option between action for rescission and action for reduction of the price. Article L. 622-21 of the Commercial Code stipulates in effect that “the decision [to initiate insolvency proceedings] interrupts or prohibits any legal action on the part of all creditors whose claim is not listed in I of Article L. 622-17 and whose aim is to: 1° Order the debtor to pay a sum of money; 2° Rescind a contract for non-payment of a sum of money (...)”. While it is therefore not permissible to bring an action for the payment of a sum of money in respect of a claim originating prior to the judgment opening the insolvency proceedings, there is nothing to prevent creditors from initiating an action for the rescission of contracts of sale based on a cause other than non-payment of a sum of money. Consequently, the buyer, who cannot bring an action for reduction of the price , may still  bring an action for rescission .

Cass. 1re civ., 12 January 1994, LawLex200500004984JBJ.

Cass. com, March 1, 2005, LawLex200600001639JBJ; CA Pau, 14 June 2012, LawLex201200001613JBJ; CA Caen, 24 April 2018, LawLex201800000645JBJ; CA Versailles, 20 December 2018, LawLex201900002100JBJ: a claim for rescission of a sale based on the existence of a latent defect is not admissible where the person bringing the action has resold the thing. 

Cass. 1re civ., 14 December 2016, LawLex201700000028JBJ: the buyer who is unable to return the defective vehicle following its sale by court judgment may not exercise the action for rescission, even if he merely seeks to have the proceeds of the forced sale set off against the sale price to be returned to him. See, however, CA Angers, 24 January 2012, LawLex201200001669JBJ, holding that the impossibility of restitution in kind of an accidented and irreparable vehicle does not preclude the rescission of the sale, which gives rise, in favor of the seller, to a claim for restitution of the thing equal to its actual value on the day of the sale, estimated on the basis of the price paid by the buyers less the amount of repairs necessary to remedy the defect

CA Paris, 3 July 1993, LawLex200700000674JBJ ; CA Aix-en-Provence, 7 November 2016, LawLex201600001886JBJ.

Cass. 1re civ, 12 January 1994, LawLex200500004984JBJ.

CA Lyon, 4 June 2009, LawLex201200001887JBJ; Nancy, 25 February 2010, LawLex201200001800JBJ; Colmar, 15 March 2019, LawLex201900000363JBJ: the impossibility of returning a vehicle, due to its destruction in a fire caused by the defect, does not preclude the exercise of the action for rescission.

CA Colmar, 30 August 2004, LawLex200700000664JBJ: the impossibility of returning a vehicle afflicted by a defect impairing its use, and destroyed following an accident, prohibits the purchaser from bringing an action for rescission of the sale, leaving him only with the option of bringing an action for reduction of the price (action estimatoire).

Cass. 1re civ. 3 December 1996, LawLex200500003684JBJ.

Cass. com. 18 February 2003, LawLex200500003855JB: the action for reduction of the price, as well as the action for damages for loss of use, fall under the prohibition laid down in Article L. 622-21 of the Commercial Code.

Cass. com. 2 March 1999, LawLex200500003949JB, overruling CA Aix-en-Provence, 19 December 1995, LawLex200500004254JBJ; CA Paris, 7 May 1993, LawLex200500004364JBJ; 5 July 1996, LawLex200500010134JBJ; CA Lyon, 14 January 2000, LawLex200300004437JBJ; CA Colmar, 20 January 2004, LawLex200700000726JBJ.

Business Contracts

211. Limits

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211. Limits

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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