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

The lack of pre-existence of the defect may result from circumstances subsequent to the sale, sometimes attributable to the buyer, or from an external cause over which the seller and the buyer have no control.
1)  Improper use
To exclude the warranty against latent defects, many sellers claim improper use of the thing by the buyer. In fact, the proven careless driving of the buyer , the use of too …

Subsequent defect

Article 1641 of the Civil Code obliges the seller to guarantee the “latent defects of the thing sold”. Therefore, the defect must exist at the time of sale. Defects are only covered by the guarantee if they pre-exist the transfer of risks. Determination of the date of birth of the defect, as opposed to its date of occurrence, which may be later, is therefore crucial. To do this, the courts carry out a case-by-case assessment. Thus, case law requires the defect to have existed before the sale or, at the latest, “at the time” of the sale . The pre-existence of the defect is characterized even if the defect was not apparent on the date of the sale, when its occurrence is inevitable : it is sufficient that the defect existed “latently” at the time of the sale . When the defect results from a manufacturing, design or construction defect, it is then original and therefore necessarily prior to the sale . The condition of pre-existence can also be established, in the absence of manufacturing defects, in the event of an accident , pollution contamination , or defective repairs  carried out before the sale. Finally, the short period of time between the sale and the appearance of the defect may lead the court to presume the pre-existence of the defect .

 See. Cass. 1re civ., 16 June 1992, LawLex200600002147JBJ: holding that according to the sovereign findings of the trial courts, the fungus contaminating the bulbs sold was present at the time of delivery; CA Caen, 23 June 2005, LawLex200600001715JBJ: defects existing at the time of sale, not detected during the first technical inspection but revealed by the expert report.

 Cass. com., 24 November 1992, LawLex200500004341JBJ, overturning  CA Rouen, 7 June 1990, LawLex200400001844JBJ: a latent defect is constituted by the need for the buyer of a hotel establishment to carry out major works to avoid being downgraded which, although not effective on the date of the sale, is inevitable in the absence of such work.

 See CA Rouen, 30 January 2013, LawLex201300000390JBJ.

 Cass. com., 16 December 1997, LawLex200500004306JBJ, upholding  CA Toulouse, 18 May 1995, LawLex200500005546JBJ;  CA Rennes, 14 February 2008, LawLex201200001897JBJ;  CA Aix-en-Provence, 18 January 2011, LawLex201200001705JBJ.

 See CA Rouen, 28 June 2006, LawLex200600002150JBJ.

 CA  Bordeaux, 15 May 2012, LawLex201200001856JBJ.

 CA Douai, 30 May 2013, LawLex201400001597JBJ.

 CA Toulouse, 22 November 2005, LawLex200600001722JBJ;  CA Versailles, 12 June 2014, LawLex201400002148JBJ.

Pre-existing or concomitant defect

The lack of pre-existence of the defect may result from circumstances subsequent to the sale, sometimes attributable to the buyer, or from an external cause over which the seller and the buyer have no control.

To exclude the warranty against latent defects, many sellers claim improper use of the thing by the buyer. In fact, the proven careless driving of the buyer , the use of tools too big for the machine , processing or transformation of the thing carried out by him , his recklessness  or non-compliance with the manufacturer's instructions for use  all constitute obstacles to the existence of a prior defect. The courts took the view that, even in the event of the pre-existence of the defect, the buyer's action had to be dismissed when, having received the necessary instructions to avoid any accident, he failed to comply with them . The seller is also exempted from the guarantee if the defect arose after the sale, during storage , transport   or during the revision of a vehicle carried out between the sale and the delivery .

Thus, the buyer has not demonstrated that the corrosion on his vehicle is due to a defect prior to the sale when the expert appraisal attributes it to a frequent and prolonged exposure to a particularly aggressive environment, whereas the manufacturer establishes that the vehicle has traveled safely between exiting the plant and being put into circulation .

However, the facts relied on by the seller do not always enable him to escape liability in particular in the absence of a causal link between the facts relied on and the damage. In particular, it was held that the seller's description of the thing , the absence of intervention or the purchaser's limited intervention on the thing , the buyer's uniform intervention on things that are not all affected by a defect , or the short duration of use of the product, in relation to the magnitude of the defects observed , deprive the seller of the possibility of being exempted from the warranty against latent defects. Similarly, when the defect pre-existed the sale, the subsequent conditions of storage and use, even prejudicial to the thing  or the absence of a causal link between the use of the thing by the buyer and the defect  did not make it possible to exclude the warranty against latent defects. Finally, the court has excluded exemption in the case of a buyer whose experience in the use of the products in question did not allow it to conclude on a nimproper use .

The seller may exempt itself from the warranty against latent defects if it proves that they are the result of an external cause , subsequent to the sale, which has the characteristics of a fortuitous event . Thus, as the destruction of wood by dry rot is rapid, the defect invoked more than a year and a half after the sale of a property is probably subsequent to it . However, it was held that the intervention of a third party, after the sale, does not constitute an exonerating cause when the defect is not directly related to the external event .

  See  CA Colmar, 16 June 2005, LawLex200600001717JBJ;  CA Bordeaux, 3 March 2011, LawLex201200001677JBJ, regarding misuse of the air conditioning.

   CA Grenoble, 18 January 2006, LawLex200700000518JBJ.

 See  CA Pau, 22 November 2010, LawLex201200001779JBJ: the damage caused by placing a surfboard directly inside a vehicle, described in the presentation notice as an all-terrain and versatile vehicle, is not attributable to a lack of maintenance of the vehicle. Similarly, the courts  considered that the use of this all-terrain and multi-purpose vehicle on the waterfront did not constitute abnormal use.

  Cass. 3e civ., 8 October 1997, LawLex200500005031JBJ; see CA Rouen, 23 May 2018, LawLex201800000797JBJ, especially where the intervention of the buyer has helped to stabilize the defect.

  See  CA Toulouse, 3 January 2011, LawLex201200001906JBJ.

  See  CA Rouen, 28 June 2006, LawLex200600002150JBJ.

 Cass. 1re civ., 25 January 2005, LawLex200600002142JBJ, noting that the defect pre-existed the sale, regardless of the subsequent conditions of storage and use;  CA Basse-Terre, 12 June 1995, LawLex200500005568JBJ.

  Cass. 1re civ., 3 April 1990, LawLex200500005448JBJ, retaining a defect in the installation and not the argument of overuse of the engine by the purchaser; 11 February 1997, LawLex200500005025JBJ, considering that the destruction of a vehicle by fire during start-up cannot be due on its conditions of use by the buyer, but to a latent defect, when the judge noted the defectiveness of the ignition system;  CA Versailles, 2 September 2010, LawLex201200001903JBJ, declaring that the lack of traceability and the absence of quality control of the products by the buyer are unrelated to the manufacture and sale of the defective item;  CA Nancy, 12 September 2011, LawLex201200001910JBJ, declaring that the installation of a floor and joints carried out by the buyer did not contribute to the occurrence of the damage.

 Cass. com., 20 September 2005, LawLex200600002141JBJ.

   CA Versailles, 2 September 2010, LawLex201200001903JBJ.

   CA Nancy, 14 February 2013, LawLex201300000315JBJ, declaring that the presence of oil in large quantities on the front part of the cylinder head, which caused the accelerated ageing of the accessory belt, is not due to a defect pre-existing the sale but to a fortuitous event.

  See  CA Colmar, 13 March 2006, LawLex200600002149JBJ, concerning the appearance of fungus with a rapid destructive effect.

 See  CA Toulouse, 22 April 2009, LawLex201200001913JBJ;  CA Aix-en-Provence, 9 June 2011, LawLex201200001694JBJ, regarding the installation of LPG bi-fuel on a vehicle after the sale;  CA Chambéry, 3 May 2012, LawLex201200001552JBJ, concerning the modification of the exhaust muffler of a 4x4 vehicle.

 See  CA Nancy, 25 February 2010, LawLex201200001800JBJ, holding that the external cause cannot reside in the defective repair of a vehicle by a company, causing the damage constituting the latent defect for the purchaser, since the unsuitability for the intended use of the thing sold is due to the premature and abnormal degradation of the belt drive and not to an external event unforeseeable at the time of conclusion of the contract and irresistible in its execution .

  See Cass. com., 17 March 1998, LawLex200500005030JBJ;  CA Amiens, 14 June 2005, LawLex200600001718JBJ, concerning the presence of water in a vehicle which is not explained by a leakage, but by the spillage of a liquid by the user in the passenger compartment or the opening of the windows during heaving rain.

  CA Nouméa, 31 July 2003, LawLex200600002225JBJ;  CA Aix-en-Provence, 19 December 1995, LawLex200500004254JBJ.

  See T. com. Paris, 8 September 2004, LawLex200700000842JBJ.

 Cass. com., 27 November 2001, LawLex200600002143JBJ; Cass. 1re civ., 21 February 2006, LawLex200700000708JBJ;  CA Rennes, 26 January 2011, LawLex201200001907JBJ.

   CA Bourges, 5 September 2005, LawLex200600001710JBJ, defect probably resulting from the dismantling of the tool for transport purposes. - Comp. Nîmes, 3 March  2016, LawLex201600000608JBJ, defect prior to the transport, in this case.

  See  CA Bordeaux, 26 July 2012, LawLex201300000202JBJ.

  CA  Douai, 2 June 2014, LawLex201400002116JBJ.

French Consumer Law

586. Subsequent defect

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Les notions juridiques connexes

586. Subsequent defect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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