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

Greater vigilance is expected from the professional buyer than from the layman. When he has the same specialty as the seller, the buyer is presumed to be aware of the defect, but can reverse the presumption by producing evidence of the undetectable nature of the defect or fraud. The severity of the presumption against the professional is further reduced when he is not in the same field as the sell …

Professional in the same speciality/in a different speciality

Greater vigilance is expected from the professional buyer than from the layman. When he has the same specialty as the seller, the buyer is presumed to be aware of the defect, but can reverse the presumption by producing evidence of the undetectable nature of the defect or fraud. The severity of the presumption against the professional is further reduced when he is not in the same field as the seller.

When the buyer has the same specialty as the seller, the courts consider that its professional expertise gives him a better understanding of the thing. In this case, the degree of diligence expected of him is increased, and he must carry out a more thorough inspection of the thing than that required of the layman . Thus,  a buyer of the same specialty as the seller who does not check the condition of the goods, when visual indicators and his knowledge of the materials enable him to detect the defects of the thing, cannot enforce the warranty . Likewise, a buyer describing himself on the internet as a specialist with twenty years' experience and who has tested the machine before purchasing it cannot claim the existence of a latent defect which, on simple operation thereof, would have been apparent . The buyer of the same specialty as his seller is even presumed to be aware of the defects affecting the thing . However, contrary to the one imposed on the professional seller, the presumption is not irrefutable. Indeed, the seller is in a better position to know the thing he owned, or even handled for a certain time, than the buyer, who only has a limited time to carry out his examination before buying. The probability that he discovered the defect at the time of purchase is therefore lower.

The court must therefore verify whether the purchaser was able to detect the defect at the time of the sale  and if he had carried out a normal and diligent examination of the thing, in proportion to his technical competence . The defect is of an undetectable nature when only very thorough examinations, which the buyer is not required to perform, would have enabled him to discover it at the time of the sale . This is the case when the discovery of the defect required dismantling the equipment  , the in-depth study of the subsoil  or the prolonged use of the thing . In effect, the court cannot expect a buyer to carry out manipulations that are not usual . Like the undetectable nature of the defect, the fraud of the seller removes the presumption of knowledge of the defect on the buyer of the same specialty .

The professional buyer, who is not of the same specialty as the seller, must show a degree of diligence greater than that expected from a lay buyer, but less than that required of a professional buyer of the same specialty. Thus, even if he is not presumed to know the defects of the thing, the professional buyer who does not have the same specialty as his seller must proceed before the sale with the technical verifications of a normally diligent user , such as a superficial examination of the thing and a road test . It is different when the defect is undetectable by a buyer who, although a professional, is normally diligent given his lack of specific expertise in the field in question , including when the buyer has shown carelessness in buying a used car remotely without performing any road test or visual inspection, when the defect was not detected during the technical inspection that preceded the sale and could only be revealed by an expert appraisal . The defect affecting the gears of a farm loader also has a latent character when it could only be discovered after dismantling the gearbox during the expert appraisal, an operation which cannot be imposed on the purchaser . The status of buyer of a different specialty is assessed in the person of the buyer, and not in the persons who may assist him . 

 Cass. com., 3 January 1991, LawLex200500003955JBJ: the warranty against latent defects is not enforceable by the fabric trader/buyer who has not carried out a quality control which would have easily revealed the defect; 16 January 1996, LawLex200500003955JBJ: the difference between the indications published by the seller in an advertisement and the actual dimensions of a property cannot be considered as a hidden defect when the buyer, by visiting the premises, was able to assess its surface; 26 March 2013, LawLex201400000366JBJ: the professional alerted of the risks presented by the PCP treatment of wooden cellars, which nevertheless decided to buy the second-hand pallet-boxes without carrying out the basic checks incumbent on an informed professional and which would enabled it to detect the defect itself, is inadmissible in its action concerning the warranty against latent defects. Cf. Cass. com., 11 March 1997, LawLex200500004987JBJ, not requiring the buyer to test the crane when loaded; CA Nancy, 2 June 2010, LawLex201200001902JBJ, holding that the sealing fault of a tap constitutes a non-apparent defect as it is necessary to fill the container on which it is mounted to discover that the joint leaks.

Cass. com., 5 February 2020, LawLex202000000274JBJ.

 See Cass. com., 23 November 1999, LawLex200500004308JBJ: the defects affecting the coils of galvanized sheets are not apparent when they have to be unrolled to see them and it is not customary to do so.

 See for an application CA Toulouse, 1 June 1995, LawLex200500005539JBJ.

 CA Paris, 6 October 1995, LawLex200500004362JBJ; CA Grenoble, 20 December 2012, LawLex201300000295JBJ.

 CA Rennes, 12 September 2013, LawLex201400000456JBJ.

 CA Bordeaux, 29 November 1994, LawLex200500004245JBJ, defects in a ship not detectable by the operator of a sport fishing center; Cass. com., 10 June 1997, LawLex200500005494JBJ, defect affecting a backhoe considered undetectable by an electrician; 8 July 2003, LawLex200300003412JBJ, defects of internal origin affecting pruning equipment, considered undetectable for a normally diligent buyer with no particular mechanical expertise, having also carried out a careful examination.

 CA Nîmes, 18 September 2014, LawLex201600000296JBJ.

CA Amiens, 31 January 2019, LawLex201900000171JBJ; CA Paris, 23 January 2020, LawLex202000000118JBJ.

 Cass. com., 8 July 1999, LawLex200500003963JBJ.

 CA Versailles, 7 March 2017, LawLex201700000567JBJ.

 Cass. com., 27 November 1991, LawLex200300003018JBJ, holding that the seller is not bound by the guarantee when the buyer, by his technical competence, could detect the defect at the time of delivery; CA Rouen, 7 June 1990, LawLex200400001844JBJ; the hotel professional cannot rely on a defect resulting from a new regulation applicable to the classification of hotel establishments, even if he has not been informed by the professional; Cass. com., 26 October 1999, LawLex200500003961JBJ: the company which acquires a hotel-restaurant business cannot rely on the hidden nature of the defect which results from the non-compliance of the business with health standards, when one of its partners is a kitchen chef, which gives him the status of professional buyer of the same specialty as the seller; CA Lyon, 14 January 2000, LawLex200300004437JBJ: equipment defects of a backhoe concerning the replacement of broken windows, of a seat, control handles and absence of an excavation bucket, constitute defects apparent for the reasonably well-informed professional buyer.

 Cass. com., 13 November 1990, LawLew20033016; Cass. 1re civ., 4 December 1990, LawLex200300003009JBJ; CA Agen, 5 September 2012, LawLex201300000209JBJ, about the undetectable defect of vehicles having been the subject of a recall campaign, of which the professional buyer was unaware of.

 See. Cass. 1re civ., 2 March 2004, LawLex200500003818JBJ, cracks affecting the inner side of valves undetectable by the simple visual inspection the buyer undertook to perform.

 Cass. com., 3 January 1991, LawLex200300003017JBJ, defect requiring a very thorough laboratory examination; 2 March 1993, LawLex200500005480JBJ, insufficient thickness of the walls of a boiler that could only be detected by a laboratory; CA Bordeaux, 23 January 1992, LawLex200500005567JBJ, defect detectable only by an expert; CA Aix-en-Provence, 16 May 2008, LawLex201200001900JBJ, defect requiring investigations in a laboratory; Cass. com., 26 March 2013, LawLex201400000364JBJ: expert report having excluded that only a visual examination would have allowed to detect the defect. 

 CA Nîmes, 21 May 1992, LawLex200300004207JBJ; CA Riom, 8 April 2013, LawLex201400001650JBJ: the manufacturing defect of a vehicle is undetectable for the dealer when its discovery required the dismantling of the intake pipe and checking the condition of the engine butterfly valves, which was not prescribed in the maintenance methodology provided by the manufacturer.

 CA Versailles, 13 January 2000, LawLex200500005114JBJ.

Cass. com., 5 April 2016, LawLex201600000918JBJ.

French Consumer Law

592. Professional in the same speciality/in a different speciality

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592. Professional in the same speciality/in a different speciality

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Les décisions de justice citées dans ce paragraphe :

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