Business Contracts

Pursuant to Article 1132 of the Civil Code, which reflects established case law, a mistake as to essential qualities can only lead to the annulment of a contract of sale if it is inexcusable .  In other words, negligence on the part of the mistaken party is his or her sole responsibility. The buyer cannot invoke a mistake in the mileage of the vehicle sold, justifying cancellation of the sale on the grounds of mistake, when the mileage is not guaranteed . 

Similarly, the purchaser of a car whose roadworthiness certificate, issued at the time of purchase, states “chassis number illegible : inspection impossible”, cannot plead a mistake concerning the administrative status of his vehicle . In practice, inexcusable or reckless mistake is intended not only to penalize the wrongful conduct of the errans, but also to protect the co-contracting party acting in good faith from the unfair consequences of the contract being invalidated. The purchaser is not entitled to invoke mistake concerning the alleged free supply of chairs, when the agreement signed with the vendor unambiguously stipulates the price of the chairs, thus ruling out the excusable nature of the mistake .

The court's assessment of whether or not a mistake is excusable is based on the buyer's ability to act, i.e. to have exercised a minimum of diligence at the time of contracting. The buyer's mistake as to the vehicle's actual mileage is not excusable if, on two occasions prior to the sale, he was able to realize that the odometer was displaying miles and not kilometers . The buyer's mistake regarding the condition of the equipment sold (which he believed to be new) was thus qualified as gross and inexcusable in view of the clarity of the contractual documents he had signed relating to the fact that it had been reconditioned .

In general, the trial courts are more willing to excuse a lay purchaser's mistake than a professional buyer's . The professional purchaser made an inexcusable mistake regarding the technical characteristics of a forklift truck (which turned out to be unsuitable for moving pallets in his warehouse), since he regularly used this type of machine in his professional activity, and was fully competent to assess whether the forklift arm's travel was compatible with the configuration of the premises . On the other hand, the buyer of a parking space that is actually too narrow to park his vehicle commits an excusable mistake as to the essential qualities of the thing sold, since it is difficult for a non-professional to assess the width of such a space, and there is nothing in the sales agreement to suggest that the disputed property can only be used for small vehicles . An excusable mistake on the part of the professional purchaser is, however, accepted, but only when the circumstances justify it . According to the Court of Cassation, the inexcusable nature of the buyer's mistake cannot be attributed to his expertise in the field of artworks insofar as he had not previously been involved in the certification of the painting in question .

A professional purchaser's failure to comply with his obligation to provide information may give rise to a mistake as to the purchaser's essential qualities, making it excusable . A purchaser who bought medical equipment which, in the absence of certification, was ultimately considered to be off-the-shelf, committed an excusable mistake justifying the invalidity of the agreement, since the device's presentation leaflet stated “EC Conformity” and, as there was no reason for him to doubt the accuracy of this information, he was not obliged to check it . 

The courts also take into consideration the impact of certified information, or information provided by knowledgeable professionals who are third parties to the sale, which may mislead the consumer, who may therefore have dispensed with the need to seek information . A mistake caused by the fraud of a third party to the agreement may invalidate the contract . However, according to the Court of Cassation, the professional purchaser's duty to inform himself does not preclude fraudulent non-disclosure (dol par réticence), the existence of which always renders the mistake excusable .

Lastly, by virtue of the adage “l'aléa chasse la lésion” (" uncertainty dispels the injury “), doubt in the contractual field renders any misunderstanding on the part of the errans inexcusable. This solution is reiterated in Article 1133 of the Civil Code, which stipulates that "acceptance of a risk as to the quality of the performance excludes any mistake relating to that quality”. Thus, when an uncertainty concerning the authenticity of the work has been accepted by both parties and has entered into the contractual field, neither party - including the seller and his successors in title - can allege mistake in the case of definite authentication .

Cf. Art. 1132, Civil Code: “A mistake of law or fact, unless inexcusable, is a cause of invalidity of the agreement when it relates to the essential qualities of the performance due or those of the other contracting party”.

CA Toulouse, 16 May 2022, LawLex202300003628JBJ. 

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

CA Metz, 15 December 2011, LawLex201200000750JBJ: the professional vendor's failure to provide information about the kitchen sold may be the cause of the purchaser's excusable mistake concerning the layout and use of the kitchen, in consideration of which they contracted.

CA Paris, 25 January 2013, LawLex201300000503JBJ.

CA Paris, 19 October 2021, LawLex202100006013JBJ, noting that a professional in the sale of works of art, obliged to ensure the origin and authenticity of the works sold, who neither questioned the foundations of the authors concerned about the validity of the certificates of authenticity accompanying the drawings sold, nor identified the material impossibility or futility of carrying out such a search, committed a fault which incurred his liability, even if the buyer, a broker in works of art, did not himself carry out these verifications at the time of the sale.  

Cass. 1re civ. 3 July 1996, LawLex200700000921JBJ. 

Cass. 3e civ, 21 February 2001, LawLex200500005940JBJ.

Cass. civ. 1re, 24 March 1987, Fragonard case, LawLex201400000572JBJ: a person who buys a horse intended for show jumping, a quality which falls within the scope of the contract, cannot rely on an excusable mistake as to the essence of the horse, which has become unfit for sport, since he was not unaware, at the time of purchase, of the risk, however minor, of lameness, highlighted by the veterinarian in his report, and consequently accepted an uncertainty as to the animal's state of health.

CA Lyon, 18 May 2004, LawLex201400000571JBJ.

CA Versailles, 27 January 2022, LawLex202300003628JBJ; 6 April 2021, LawLex202100001016JBJ, noting that a mistake as to the alleged essential qualities of the thing must be excusable in order to justify annulment of the sale, which is not the case when the purchaser, at the time of formation of the agreement, had every opportunity to ascertain the substance of the thing purchased, clearly set out in the notarial deeds, and could, if necessary, obtain further information if she felt the need to do so.

CA Lyon, 23 October 2012, LawLex201400000501JBJ.

CA Paris, 25 January 2013, LawLex201300000505JBJ.

CA Douai, 10 October 2019, LawLex201900001239JBJ: the professional purchaser who, after acquiring bottles of vintage wine at a public auction solely on the basis of the catalog description, maintains that the external appearance of the bottles does not correspond to his expectations, relies on an inexcusable mistake as to substance, given that if he had attended the showing prior to the sale, he would have been able to form his own opinion as to the essential characteristics of the bottles and their general condition, that, as a wine and spirits merchant, he could not have been unaware of the absence of quantitative normative criteria concerning the level of wine and the necessary degree of subjectivity involved in the qualitative assessment of the external appearance of such old bottles; and that, lastly, he had been advised by the general conditions of sale that the indications in the catalog remained subject to his personal assessment.

CA Colmar, 27 April 2010, LawLex201200000748JBJ.

CA Paris, 1 February 2007, LawLex200700000638JBJ.

CA Reims, 20 March 2018, LawLex201800000472JBJ: an excusable mistake was made by a professional purchaser who thought he was buying a tempering machine with a cooling function, essential for working with chocolate, when in fact he was buying a tempering machine without this function, since the word “températice” appeared on the machine, the advertisement was entitled “chocolate tempering machine” and not “chocolate dipping machine” or “chocolate fountain”, that the photos in the advertisement did not make it clear that the control panel had no “cold” button, and that there was no explanation for suspecting the absence of the cooling function, even if it was not explicitly stated.

129. Excusable mistake