French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Although the warranty against latent defects of Article 1641 of the Civil Code applies exclusively to sales, the legislator has made certain categories of sales subject to a system of derogations.
1)  Sale of buildings to be constructed 
The sale of buildings to be contructed, referred to in Articles 1601-1 et seq. of the Civil Code , close to the "contrat d'entreprise', is the subject of special  …

Subject-matter of the sale

The rules governing warranty against latent defects are laid down in Articles 1641 et seq. of the Civil Code and concern exclusively the contract of sale, as evidenced by its place in the Civil Code . The warranty is therefore intended to apply only to contracts under which “one is obliged to deliver a thing and the other to pay for it” . However, as stipulated in Article 1707 of the Civil Code, an exchange is subject to the same rules as a sale, with the exception of the right of rescission for injury. The exchange of vehicles, one of which contains defects, falls within the scope of Articles 1641 et seq. of the Civil Code . A distinction should be made between the contract of sale and related contracts which, if they do not relate to a sale, may involve the provision of a thing. Furthermore, the warranty against latent defects is not applicable to all sales. Some contracts are thus excluded because of their subject matter or their terms. 

  These articles are contained in Title VI of Book III of the Civil Code relating to sales.

 Cass. 1re civ., 5 November 2014, LawLex201500001228JBJ; CA Douai, 10 June 2013, LawLex201400001538JBJ.

Scope of application

Although they may relate to a thing, contracts for services ("contrat d'entreprise") and mandates are not subject, with certain reservations, to the warranty against latent defects which expressly covers the “seller” and the “buyer” .

1)  Contract for services ("contrat d'entreprise")

Article 1710 of the Civil Code defines the business contract for services or “louage d'ouvrage” as “a contract by which one of the parties undertakes to do something for the other, for a price agreed between them”. This type of contract, which involves work to be performed and not a thing to be delivered, does not involve any transfer of ownership. Consequently, in principle, the project owner cannot invoke the warranty against latent defects against the contractor , the subcontractor who does not have the status of supplier , or the repairer who has installed an engine with defects . However, some hesitation is allowed when the work involves a thing provided or manufactured by the contractor. Case law sets aside the classification of sale when the service is performed in accordance with the precise instructions of the project owner and according to them in order to meet its specific needs . However, a contract of sale cannot be reclassified as a contract for works (contrat d'enterprise) merely because the buyer has supplied plans and sketches to the seller and has carried out preliminary studies, insofar as they do not reflect specific requirements involving a particular method of manufacture . Simple modifications made to the thing sold, at the buyer's request, are not sufficient however to result in the re-classification of the contract . In all cases, according to case law, the contract which relates to a thing mass-produced in advance, intended to satisfy a wide customer base, constitutes a sale . This is the case with the contract for the supply of the standard model of a machine and, as an option, certain equipment . Another criterion for attaching the operation to the contract of sale is the value of the thing supplied in relation to the work performed . Since the cost of the installation service is half that of the equipment itself, there is a contract of sale covered by the warranty against latent defects, and not a contract for services .

Article 1984 of the Civil Code defines the mandate as “the act whereby a person gives to another the power to do something for and on behalf of the principal”. The mandate agreement is characterized not by an obligation to give as for the sale, but by an obligation to do, the purpose of which is a legal act to be performed by the agent. Thus, even if the act in question concerns the sale of a thing, the agent, a mere intermediary, is not the one who sells the thing. The warranty against latent defects therefore does not apply to the mandate agreement , unless it can be analyzed as a contract of sale .

  Cass. 1re civ., 18 January 1989, LawLex200600002120JBJ; 4 July 2000, LawLex200600002102JBJ; Cass. com., 16 February 1999, LawLex200500005038JBJ, holding that the repairer is bound only in respect of contractual liability under common law for the defective parts that it has not replaced but is not concerned by the warranty against latent defects. However, the contractor whose liability has been incurred on the basis of Article 1792 of the Civil Code, who cannot be subrogated in the benefit of this action reserved for the project owner and its successive owners, has an action for latent defects against the supplier of the thing affected by a defect, Cass. 3e civ., 13 July 2016, LawLex201600001355JBJ.

  CA Montpellier, 13 October 2015, LawLex201600000394JBJ.

  See, however, Cass. 1re civ., 7 July 2011, LawLex201200001460JBJ, admitting the action against the agent and the agent's warranty claim against the principal.

  See Cass. 1re civ., 16 May 2006, LawLex200600002100JBJ, holding that on the sale of a used vehicle, the garage owner has the status of seller, and not agent of the first owner, when the invoice presented to the buyer is in his name and the check is payable to him and when the sum paid to the original owner of the vehicle is only two thirds of the price paid. See also CA Caen, 23 June 2005, LawLex200600001715JBJ.

 Cass. 3e civ., 18 November 1992, LawLex200500004343JBJ: he may nevertheless incur his tortious liability for proven fault.

  CA Paris, 18 September 2014, LawLex201600000297JBJ.

  Cass. com., 4 July 1989, LawLex200600002119JBJ; CA Rouen, 29 October 1992, LawLex200600002099JBJ; CA Besançon, 24 May 2016, LawLex201600001052JBJ.

Cass. com., 5 December 2018, LawLex201900002105JBJ.

  Cass. com., 15 December 2015, LawLex201600000253JBJ.

 Cass. com., 13 October 1998, LawLex200500003958JBJ.

 Cass. com., 14 October 2014, LawLex201600000234JBJ.

 See CA Bordeaux, 7 June 2012, LawLex201200000923JBJ, which holds that the contract by which a company has sold a machine to another company is a contract of sale and not a contract for services, when the machine provided is standard, and the assembly, start-up and training of the staff have represented a cost which is not significant enough to characterize a work.

Related contracts

Although the warranty against latent defects of Article 1641 of the Civil Code applies exclusively to sales, the legislator has made certain categories of sales subject to a system of derogations.

The sale of buildings to be contructed, referred to in Articles 1601-1 et seq. of the Civil Code , close to the "contrat d'entreprise', is the subject of special provisions within the texts relating to warranty against latent defects. Accordingly, Article 1642-1 provides that the builder guarantees against any defects, even apparent, of the building, until one month after the buyer takes possession and excludes the cancellation of the contract or reduction of the price if the seller agrees to repair. Under Article 1646-1, the seller of a building to be contructed is bound, as of acceptance of the work, by the obligations which are also binding on the architects, building undertakings and other persons bound to the contractor by a contract for services (also known as a works contract - "contrat d'entreprise") pursuant to Articles 1792, 1792-1, 1792-2 and 1792-3 of the Civil Code . The text reiterates the rule that there is no need to cancel the sale or to reduce the price if the seller undertakes to repair the damage defined in Articles 1792, 1792-1 and 1792-2 and to assume the guarantee provided for in Article 1792-3. Finally, Article 1648, paragraph 2, provides that in the case provided for in Article 1642-1, the action must be brought, under penalty of foreclosure, in the year following the date on which the seller may be discharged for any apparent defects or lack of conformity.

Articles L. 213-1 et seq. of the Rural and Maritime Fishing Code lay down specific rules for the sale of pets. To mitigate the severity of these provisions, case law initially sought the existence of tacit agreements of submission to the rules of the Civil Code , before returning to a stricter application of the texts, requiring proof of an express agreement .

Although there are no legal rules that would impede the application of the warranty against latent defects to the transfer of shares, case law is relatively hostile in this respect. Indeed, the Court of Cassation makes a distinction between defects which affect the use of shares (voting rights and the right to sit at meetings) or prevent the company from achieving its corporate purpose, and those which only affect the value of the shares, to exclude the latter from the benefit of the guarantee .

Article L. 141-3 of the Commercial Code, relating to the transfer of business, refers expressly to the provisions of the Civil Code for the system of guarantee of defects which affect the accuracy of the declarations of the deed . Without even referring to Article L. 141-3, case law does not hesitate to apply Articles 1641 et seq. of the Civil Code to defects which affect the business itself .

The guarantee extends not only to the thing sold but also to its accessories. It therefore cannot be limited to the frame of a machine, but must also apply to its accessories, such as the pressure transmission screws , or the disk contaminated by a virus, supplied with a magazine which it is inseparable from . 

 See Cass. 3e civ., 11 December 1991, LawLex200500004339JBJ; 25 January 1995, LawLex200600002111JBJ; 29 March 2000, LawLex200600002112JBJ.

 See, for an application, Cass. 3e civ., 7 April 2004, LawLex200500003831JBJ.

  See Cass. 1re civ., 26 November 1981, LawLex200600002117JBJ; 11 January 1989, LawLex200600002116JBJ; 9 January 1996, LawLex200600002118JBJ: Cf. CA Amiens, 29 April 2003, LawLex200300003563JBJ, retaining the non-apparent nature of the defect to attach the warranty to the general regime.

  See Cass. 1re civ., 22 October 2002, LawLex200600002114JBJ; 15 November 2005, LawLex200600002113JBJ.

  See. Cass. com., 23 January 1990, LawLex200500005435JBJ; 12 December 1995, LawLex200500004348JBJ; 4 June 1996, LawLex200500003957JBJ; 16 November 2004, LawLex200400003417JBJ; Cass. 3e civ., 12 January 2000, LawLex200400003430JBJ.

  See, for an application, Cass. 1re civ., 3 July 1996, LawLex200500005021JBJ.

  See. Cass. com., 24 November 1992, LawLex200500004341JBJ, concerning the need to carry out substantial work to avoid a downgrading of the hotel business; Cf. Cass. com., 18 June 1996, LawLex200500005018JBJ, holding that the closure of a restaurant is not a hidden defect of the business, when the buyers were aware of it and this closure did not prevent subsequent opening of a new establishment. See also Cass. com., 17 November 1998, LawLex200500005034JBJ, deception on the size of the customer base by concealing the disloyal acts of a former employee; 19 October 1999, LawLex200500003964JBJ, non-transmission of the approval for the repair of a make of vehicle on the sale of a garage business.

  Cass. com., 22 October 1968, LawLex200600002121JBJ.

 Cass. com., 25 November 1997, LawLex200500005029JBJ.

Under Article 1649 of the Civil Code, the warranty against latent defects “does not apply to sales ordered by the judicial authority”. This rule is certainly explained by the desire not to aggravate the situation of the party forced to sell and by the consideration that the intervention of the court constitutes a guarantee of security for the buyer . Thus, the sale of the property of a company subject to bankruptcy proceedings organized by the court, constitutes a sale by a judicial authority, which is not subject to the warranty against latent defects . Even if not forced, such a sale could only be executed with the intervention of the court under Article L. 642-18 of the Commercial Code and therefore falls under Article 1649 of the Civil Code . This is not the case where the parties have voluntarily decided to carry out the sale in judicial form , or in the context of public auctions .

Two factors make it possible to mitigate the scope of the exclusion provided by Article 1649. On the one hand, case law holds that the property developer is obliged, on a contractual basis, to deliver premises and facilities free from defects, even in the context of a forced sale . The solution is explained by the special rules applicable to developers, laid down in Article 1831-1 of the Civil Code, which requires them to guarantee performance of the obligations incumbent on the persons they have dealt with on behalf of the project owner, and in particular those resulting from Articles 1792, 1792-1, 1792-2 and 1792-3 of the Civil Code. On the other hand, the protection of the debtor subject to the procedure does not preclude direct action for latent defects by the sub-purchaser against the manufacturer .

Indeed, the sub-purchaser enjoys all the rights and actions attaching to the thing which belonged to its predecessor .

  CA Grenoble, 2 July 2002, LawLex200600002296JBJ, concerning a tender procedure.

  Cass. com., 10 December 1974, LawLex200600002115JBJ;  CA Paris, 13 October 2006, LawLex200700000529JBJ, concerning the assignment of a lease right within the framework of insolvency proceedings.

  CA Douai, 24 September 2012, LawLex201600000429JBJ;  CA Orléans, 14 March 2013, LawLex201600000426JBJ.

   CA Bordeaux, 1 December 2003, LawLex201600000418JBJ.

   CA Orléans, 22 March 2004, LawLex201600000425JBJ. Contra:  CA Versailles, 29 March 2012, LawLex201200001639JBJ.

  Cass. 3e civ., 21 November 1990, LawLex200600002101JBJ.

  Cass. 1re civ., 3 March 1992, LawLex200500004976JBJ.

  Cass. Ass. plén., 7 February 1986, LawLex200600001136JBJ.

French Consumer Law

583. Subject-matter of the sale

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Les notions juridiques connexes

583. Subject-matter of the sale

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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