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

Can the buyer be blamed for a lack of due diligence if he does not inspect the thing or test it before the purchase? Two situations must be distinguished according to whether the seller has or has not attracted the buyer's attention to the defect.
The courts refuse to grant a lay buyer the benefit of the warranty against latent defects when, alerted to the existence of the defect before the transf …

Diligence required

Can the buyer be blamed for a lack of due diligence if he does not inspect the thing or test it before the purchase? Two situations must be distinguished according to whether the seller has or has not attracted the buyer's attention to the defect.

The courts refuse to grant a lay buyer the benefit of the warranty against latent defects when, alerted to the existence of the defect before the transfer of the risks or at least to its potentiality, he does not carry out any additional checks . This is the case of the buyer who, informed by the seller before the sale of the presence of longhorn beetles in the framework of a house, made the choice to dispense with the opinion of a specialist which would have allowed him to know the nature and extent of the infestation and thus to contract in full knowledge of the facts . It has even been held, in relation to a non-professional buyer but who is sufficiently informed in the area of horses, that he had to take every precaution to control the interpretations which could be made of radiographic images taken on the day of the sale and revealing a defect of the horse acquired, even if the specialist consulted had not been able to detect it . Similarly, a buyer who neglects to ask for access to the attic of an old building, even though the defects in its roof were visible to the naked eye from there, cannot subsequently bring an action to enforce the warranty against latent defects .

However, the lay buyer is only obliged to perform an elementary examination of the goods , which involves, if necessary, unpacking the thing  or, in the case of used vehicles, a preliminary test  , provided that it is established that it would have revealed the defect . On the other hand, the Plenary Assembly of the Court of Cassation considers that the buyer cannot be obliged to carry out extensive or even precarious checks, such as having to climb on to a roof on the grounds that access to the attic, while difficult, is not impossible . A defect that manifests itself only during non-routine operations is not identifiable during pre-sale testing and therefore does not constitute an apparent defect . Similarly, where the seller retains, voluntarily or not, information likely to alert the buyer to the existence or the potentiality of a defect, it cannot be imposed on the buyer to compensate for this lack of information by in-depth investigations . Finally, Article 1642 of the Civil Code refers to defects “which the buyer has been able to see for himself”. Consequently, he cannot be criticized a posteriori for not having been assisted by an expert or skilled professional, when it is not provided for by law .

CA Bastia, 11 September 2024, LawLex202400006355JBJ: the electrical wiring in the attic (bare wires with no mechanical protection), which the diagnostic expert expressly mentioned as constituting a serious defect rendering the building unfit for its intended purpose due to the risk of electrocution and fire, does not constitute a latent defect, but an apparent defect that the buyers could not have been unaware of at the date of sale, such that their action under warranty against latent defects must be dismissed.

  Cass. 3e civ., 26 February 2003, LawLex200300003422JBJ, upholding CA Pau, 19 March 2001, LawLex200600001814JBJ.

 Cass. 3e civ., 25 October 2006, LawLex200700000893JBJ.

  Cass. 3e civ., 31 May 1989, LawLex200600002246JBJ; 3 November 2011, LawLex201200001595JBJ; Cass. Ass. plén., 27 October 2006, cited above. See also Cass. 1re civ., 26 September 2012, LawLex201200002156JBJ, holding that a judge cannot, in dismissing the action of the buyer of a ship, hold that a defect was apparent on the grounds that it was up to the buyer to test the vessel before the purchase in the presence of technicians, which he failed to do; 16 May 2013, LawLex201400000362JBJ; CA Bordeaux, 11 April 2013, LawLex201400001660JBJ.

  See CA Paris, 6 November 1998, LawLex200500005585JBJ.

Cass. 3e civ., 21 March 2019, LawLex201900000428JBJ.

 Cass. civ. 1re, 29 June 2016, LawLex201600001273JBJ: a defect is not apparent when a review with usual due diligence does not allow a lay purchaser to detect the cause or the extent thereof.

 CA  Paris, 19 May 2014, LawLex201400000524JBJ.

 Cass. 1re civ., 4 April 1991, LawLex200500005436JBJ; CA Bourges, 12 July 2012, LawLex201300000205JBJ; CA Bordeaux, 17 February 2016, LawLex201600000483JBJ, holding that it is incumbent on a buyer who is a layman, but normally diligent and anxious to safeguard his interests, to conduct a preliminary test. Contra, CA Nîmes, 9 July 2002, LawLex201600000486JBJ, considering that a novice buyer cannot be required to perform a pre-purchase test, especially when the vehicle in question has been accepted by the vehicle registration authority. Cf. Cass. com., 11 March 1997, LawLex200500004987JBJ, considering the flexing of a crane concealed, which could only have been detected by the operation of the device.

 CA  Aix-en-Provence, 29 January 2010, LawLex201600000484JBJ, dismissing the action as the test of the motorcycle over a very short distance would have made it possible to ascertain the defect and, for a similar decision, CA Bourges, 12 July 2012, cited above and CA Bordeaux, 17 February 2016, cited above. A contrario, CA Versailles 4 May 2007, LawLex201600000489JBJ and CA Poitiers, 16 December 2011, LawLex201600000491JBJ, allowing the action as the test of the vehicle did not make it possible to detect the defect.

  Cass. Ass. plén., 27 October 2006, LawLex200600002232JBJ and in the same case, Cass. 3e civ., 4 February 2004, LawLex200400003472JBJ, overturning CA Lyon, 30 May 2002, LawLex200500004231JBJ, which had held that the required checks did not exceed the physical capacities of the buyer.

CA Toulouse, 3 May 2018, LawLex201800000706JBJ.

French Consumer Law

591. Diligence required

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

591. Diligence required

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise