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When a latent defect is the result of a “defect” of consent, the question arises as to the basis on which the buyer can sue.
1) Mistake
The distinction between substantive mistake and latent defect is sometimes a tricky one. A mistake, which vitiates consent, constitutes a cause of invalidity of the sale when it relates to the essential qualities of the thing sold or to the other party .  The ques …

Distinction between latent defect and vitiated consent

When a latent defect is the result of a “defect” of consent, the question arises as to the basis on which the buyer can sue.

The distinction between substantive mistake and latent defect is sometimes a tricky one. A mistake, which vitiates consent, constitutes a cause of invalidity of the sale when it relates to the essential qualities of the thing sold or to the other party .  The question of combining an invalidity action on this basis with a warranty against latent defects has arisen on several occasions. At first, the Court of Cassation accepted this, offering the purchaser a choice , before reversing its position in 1996, ruling that, in the case of tiles with a latent defect, the warranty against latent defects was the sole basis for the action, and that the courts were therefore not required to consider whether the purchaser could claim damages on the grounds of mistake . Since then, the warranty against latent defects has become a specific regime from which the buyer cannot deviate  once the existence of a latent defect has been established .

The Court of Cassation also takes the view that when a buyer brings an action on the basis of mistake on the grounds that the item is flawed in a way that makes it unfit for its intended use, the court is obliged, under Article 12 of the Code of Civil Procedure, to restore the rightful basis of the action, and to ascertain whether the conditions for bringing an action in warranty against latent defects have been met  . A mistake as to the material qualities of a product can only be characterized as such if it does not amount to a latent defect . Furthermore, a buyer who has first pleaded the existence of a latent defect cannot, at a later stage, argue that there was a mistake as to the material qualities of the item, if it turns out that the defect did not exist at the time of sale . Nor can a court which has dismissed an action for warranty against latent defects of the thing, on the basis of the same defect, annul the sale for mistake as to its substantial qualities .

While an action for warranty against latent defects cannot be combined with an action for mistake, the same cannot be said of fraud. Article 1137  of the Civil Code defines fraud as “the fact that a contracting party obtains the consent of the other by manipulations or lies”. Fraud can also result from “the intentional concealment by one of the contracting parties of information which he or she knows to be decisive for the other party”. However, the concealed nature of the defect is sometimes the result of fraudulent tactics on the part of the seller, who is aware of its existence at the time of sale, but knowingly conceals it from the buyer. Case law therefore allows for a choice between warranty against latent defects and fraud  , or a combination of the two . The issue of classification as a latent defect or a fraudulent tactic lies in the application of the rules of limitation, an action based on fraud is not subject to the two-year limitation period laid down in Article 1648 of the Civil Code , whereas an action based on Article 1641 of the Civil Code enables the purchaser to benefit from the irrebuttable presumption of bad faith on the part of the professional purchaser under Article 1645 of the Civil Code, whereas the purchaser acting on the basis of fraud must establish the intentional nature of the seller's maneuvering. However, the mere existence of latent defects does not constitute fraud , and the success of the warranty action is not contingent on the seller's bad faith. Moreover, the fact that a defect is apparent excludes fraud . The Court of Cassation has nevertheless specified that a court which finds that the claimant is basing his claim against the seller solely on the warranty against latent defects is not obliged to review the dispute in the light of the legislation relating to fraud .

Art. 1132 (former Art. 1110), Civil Code. 

Cass. 3e civ, 18 May 1988, LawLex200500004328JBJ; Cass. 1re civ, 28 June 1988, LawLex200500004329JBJ.

CA Amiens, 1 April 2010, LawLex201200001274JBJ.

Cass. 1re civ, 16 April 1991, LawLex200500004332JBJ; 6 November 2002, LawLex200400003616JBJ, quashing CA Douai, 28 June 1999, LawLex200500004132JBJ. 

Cass. com, 8 May 1978, LawLex202200000758JBJ; CA Metz, 21 November 2002, LawLex200700000630JBJ. Contra : Cass. 3e civ, 11 February 1981, LawLex202200000285JBJ. 

Cass. 3e civ, 15 February 2000, LawLex200500004992JBJ.

Cass. 1re civ. 4 April 1991, LawLex200500005436JBJ.

Cass. 3e civ, 30 January 2008, LawLex200800001017JBJ

Cass. 1re civ. 14 May 1996, LawLex200400003432JB.

See notably. Cass. 1re civ, 19 October 2004, LawLex200400003423JBJ. See also Cass. 3e civ, 17 June 2000, LawLex200500005579JBJ, 17 November 2004, LawLex200400003350JBJ; 30 November 2017, LawLex201700002020JBJ. See Also CA Douai, 15 October 2012, LawLex201300000289JBJ.

CA Paris, 16 June 2000, LawLex200700000589JBJ; CA Versailles, 17 January 2003, LawLex200500004550JBJ; CA Caen, 31 October 2006, LawLex200700000831JBJ.

Cass. 1re civ, 12 July 2001, LawLex200500004995JBJ.

Cass. 1re civ., 14 December 2004, LawLex200500005875JBJ.

CA Toulouse, 10 January 2005, LawLex200700000588JBJ.

Cass. 3e civ, 4 May 2016, LawLex201600000929JBJ.

Business Contracts

207. Distinction between latent defect and vitiated consent

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207. Distinction between latent defect and vitiated consent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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