Business Contracts

The exercise of the action for rescission, which leads to the cancellation of the contract of sale, requires the buyer to return the thing and the seller to reimburse the price. This interplay of mutual restitution is designed to put the parties back in the position they would have been in had they not entered into the contract.
1) Restitution of the item
When the buyer requests restitution of the …

Conditions

The exercise of the action for rescission, which leads to the cancellation of the contract of sale, requires the buyer to return the thing and the seller to reimburse the price. This interplay of mutual restitution is designed to put the parties back in the position they would have been in had they not entered into the contract.

When the buyer requests restitution of the price of the defective item, he must return it . A judgment declaring the contract rescinded automatically obliges the buyer to return the thing, without having to specify this . In principle, restitution is made in kind. If the thing comprises a set of materials, it may be returned in kind and in value for those which have already been resold . In this case, the court takes into account the actual value of the item on the day of sale, which corresponds to the price paid, and not to the price initially agreed . Furthermore, the buyer must not be obliged to pay excessive costs to return the item: it is the seller's responsibility to recover the item . Thus, an order to reimburse the purchaser may be accompanied by an injunction, subject to a fine, to repossess the item  or remove the installation  from the date of service of the judgment.

However, restitution of the item may prove tricky when, as a result of the defect, it has been destroyed , damaged , used , dismantled  or repaired at the buyer's initiative . The action for rescission will then be admissible  if the unavailability of the good is directly linked to the defect, and the seller is therefore solely responsible for it . In effect, Article 1647 of the Civil Code specifies that if the item has perished as a result of its poor quality, the loss is borne by the seller. In this case, the purchaser is only obliged, unless at fault, to return the thing in the condition it was in when the contract was rescinded .

The seller must reimburse the buyer for the actual price received at the time of the conclusion of the contract, bearing in mind that where it is established that the seller was aware of the defect, he or she must also pay interest from the date of payment .

When the sub-purchaser chooses to act directly against the original seller, the latter alone is liable for restitution of the price , since in the event of rescission of the sale, the obligation to return the price falls exclusively on the person who recovers the item. In this case, the original seller cannot be obliged to return to the sub-purchaser more than he has received from the intermediary seller  , i.e. a sales price free of the commercial margin invoiced to the sub-purchaser. The difference between the two prices may, however, be awarded to the sub-purchaser as compensation for his loss . On the other hand, if the original seller has not been paid by the intermediary seller, restitution of the price to the sub-purchaser is ruled out . Furthermore, when the sub-buyer sues his seller and the manufacturer or original seller is called as a third party, the latter cannot be ordered jointly and severally with the final seller to return the price, as the vehicle is returned to the seller alone .

Lastly, the seller must return the full purchase price, regardless of the method of payment . According to the courts, restitution of the price cannot take the form of a simple “credit note” imposed by the seller in lieu of the sum due .

Cass. com., 7 July 1998, LawLex200700000652JBJ: the court cannot order the seller to reimburse the price, without requiring the buyer to return the defective item.

Cass. 1re civ, 25 May 2016, LawLex201600001056JBJ. See also Cass. com. 8 July 2008, LawLex201200001491JBJ: the buyer's claim for restitution of the price on the basis of the warranty against latent defects necessarily entails, whether or not it is proposed, an obligation to return the thing sold.

CA Nancy, 15 December 2005, LawLex200600001720JBJ: when the vehicle sold has been disassembled for the purposes of the expert appraisal, this does not mean that it cannot be returned to the seller, who may take it back as is, reassemble it or have it reassembled at his own expense, insofar as, by the retroactive effect of the rescission, he is deemed to have always been the owner.

CA Nancy, 15 December 2005, LawLex200600001720JBJ.

Cass. com. 5 July 1988, LawLex200700000747JBJ: the exercise of the action for rescission necessarily presupposes the restitution of the thing by the purchaser, even if it has become unusable due to the defect.

Cass. com. 10 May 2000, LawLex200500004312JBJ,

Cass. 1re civ., 8 December 2009, LawLex201200001431JBJ, noting that the purchaser acting on the basis of Article 1647 of the Civil Code is only obliged, in the absence of fault on his part, to return the vehicle in the condition it was in when the contract was rescinded.

Cass. 1re civ., 4 April 1991, LawLex201600000260JBJ.

Cass. com. 22 May 2012, LawLex201200000922JB.

Cass. 1re civ, 27 January 1993, LawLex200500005481JBJ; CA Limoges, 14 February 2012, LawLex201200001598JBJ. Cass. com, June 4, 2013, LawLex201400000360JBJ; CA Grenoble, 12 May 2014, LawLex201400002037JBJ. Cf. CA Rouen, 21 March 2007, LawLex201200001868JBJ, holding that the builder is obliged to guarantee the intermediary seller for the sums received from the final buyer.

CA Rouen, 28 January 2009, LawLex201200001830JBJ.

Cass. 1re civ, 4 March 1997, LawLex200700000662JBJ, holding that the original seller, when sued by the sub-purchaser in warranty against latent defects, cannot return more than he himself has received, so that, as he himself has not been paid, he is not liable to reimburse the deposit paid by the end-buyer to the intermediary seller.

Cass. com. 8 July 2003, LawLex200300003412JBJ.

Cass. com. 18 May 2017, LawLex201700000957JBJ; Cass. 1re civ. 18 October 2017, LawLex201700001750JBJ: in a chain of sales, only the seller who has been returned the item is bound to reimburse the price to the final buyer. See also CA Rennes, 4 July 2017, LawLex201700001275JBJ; 2 March 2018, LawLex201800000430JBJ; 18 May 2018, LawLex201800000739JBJ.

CA Nancy, 15 December 2005, LawLex200600001720JBJ: the buyer bringing the action for rescission due to latent defects in a vehicle is entitled to restitution of the entire sale price, even if he has paid it by means of a payment accompanied by the part exchange as a payment in kind of a used vehicle ; CA Rennes, 2 December 2016, LawLex201600002090JBJ, according to which the amount that must be returned by the seller of a vitiated vehicle must include the trade-in price of the vehicle brought by the consumer, even if it was destined for destruction and its recovery corresponded to a goodwill gesture.

CA Paris, 14 January 1997, LawLex200700000660JBJ.

Cass. 1re civ. 8 March 2005, LawLex200600001644JBJ.

CA Limoges, 14 February 2012, LawLex201200001598JBJ.

CA Pau, 18 April 2013, LawLex201400001567JBJ; CA Riom, 15 February 2016, LawLex201600000456JBJ; Cass. 1re civ., 8 November 2017, LawLex201700001865JBJ: the restitution by the purchaser of the vehicle to the place where it was parked satisfies the obligation to restore the parties to the state they were in before the sale, so that the seller may be required to repossess it in that place and at his own expense.

CA Grenoble, 12 May 2014, LawLex201400002037JBJ.

Cass. com., 10 May 2000, LawLex200500004312JBJ: the impossibility of returning the defective vehicle, retained by the garage in charge of carrying out repairs following an accident, is not an obstacle to the buyer's action for rescission, provided that the seller is responsible for this state of affairs.

Cass. com., 7 February 1995, LawLex200500003693JBJ: the fact that the business is in a poor state at the time of restitution does not deprive the purchaser of the action for rescission, provided that this deterioration is due to the cessation of activity, which is itself the direct result of the defect affecting the business.

CA Bordeaux, 27 March 2014, LawLex201400001817JBJ, holding that an action for rescission brought by a buyer who cannot return defective fertilizers, because they have been used, is not admissible.

Business Contracts

212. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

212. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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