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

In some cases, the defect does not affect the thing itself but an ancillary quality of it. Although the warranty applies to the subject matter of the sale and its accessories, the question of the scope of the guarantee may legitimately arise in certain situations. It is now recognized that the economic profitability of the thing is not one of the accessories to the sale covered by the warranty aga …

Defect affecting an ancillary quality of the thing

Only defects inherent in the thing may be called latent defects within the meaning of Article 1641 of the Civil Code. Although the defect of the thing can be traced back to an intervention following its factory exit, it is often caused, according to case law, by a manufacturing or structural defect or by abnormal wear and tear.

The classification of structural, design or manufacturing defect necessarily gives the defect an internal or inherent nature. The existence of such defects has been accepted in particular:

-  in the automotive sector, concerning defects affecting the engine , the belt drive , the gearbox  , the elements of the body  or some specific functions of the vehicle ; proof of the manufacturing defect may in some cases be facilitated by the organization of a recall campaign by the manufacturer due to the defect in question , the issue of an information note for its network to bring the defect to its attention  or the subsequent modification of the manner of mounting the part in question ; conversely, the absence of any other known cases of defects in the spare part in question may rule out the existence of a manufacturing defect ;

-  in the area of farming machinery, in particular with regard to the lack of lubrication of a tractor  or the defect in the electronic control module of a sprayer ;

-  in the area of ships, concerning the poor adhesion of the gel coat  or cracks caused by a structural weakness  or alternating fatigue of metal sheets ;

-  in the case of manufactured products, concerning an assembly defect or defect in the tightening of joints in the factory , an assembly defect , even if the assembled parts do not themselves contain any manufacturing defect , a cooling defect , poorly made welds , the lack of protection making the thing dangerous to the safety of users , the use of materials not adapted to the resistance over time to mechanical constraints or combustion , a design defect in a telephone device favoring communication fraud , a maladjustment of the electronic controls of the rolling shutters with the motors ;

 -  in the area of wine-growing, concerning cork stoppers  or defects affecting pouring spouts, causing the chipping of the bottle necks ;

-  in the case of defects affecting materials, such as tiles .

Although the buyer of a second-hand good cannot legitimately have the same expectations as the buyer of a new one, he is justified in being concerned about the abnormally rapid wear and tear of his good. The normal wear and tear of the thing is that which inevitably occurs after a minimum period of use. It appears abnormal when it happens prematurely and, taking into account the circumstances of the case, may lead to the conclusion of a defect inherent in the thing. It is therefore necessary to distinguish between the abnormal wear of a good and disrepair, which results from a prolonged use of the good . Thus, the wear of the thing solely connected with its age does not constitute a hidden defect . Similarly, whoever buys a low-end product cannot avail himself of the warranty against latent defects if he finds that it wears quickly .

In assessing the seriousness of the wear and its abnormality, including for second-hand goods, the court makes an assessment in concreto, which is based in particular on the “lifetime” which the buyer can legitimately expect, in relation to the duration of use of the defective thing  or, in the case of a vehicle, to the number of kilometers covered . Thus, it was considered that it appears abnormal that an engine proves to be out of order after less than three months of operation . Likewise, an engine supposed to function for more than 300,000 km contains a latent defect when it ceases to function in under 144 000 km in spite of a regular maintenance consistent with the manufacturer's recommendations . On the other hand, the speedy wear and tear of children's shoes does not demonstrate the existence of a latent defect in the case of low-end products marketed on the occasion of a major sporting event, where the marketing aspect took precedence over the manufacturing quality .

 Finally, the conclusions of an expert who stated that the disorder is caused by normal wear and tear of the thing cannot be followed since he specifies at the same time that the type of breakdown caused is fortuitous and can happen at any mileage, or never happen at all, whereas normal wear and tear occurs at the end of a minimum period of use and is inevitable . 

 See for clamping defects, CA Rennes, 7 January 2011, LawLex201200001877JBJ; CA Versailles, 19 May 2011, LawLex201200001696JBJ; 12 January 2012, LawLex201200001614JBJ; for assembly defects, Cass. 1re civ., 3 April 1990, LawLex200500005448JBJ; Cass. com., 16 January 2007, LawLex201200001507JBJ; CA Nîmes, 24 November 2009, LawLex201200001792JBJ; CA Bourges, 4 February 2011, LawLex201200001679JBJ; CA Limoges, 14 February 2012, LawLex201200001598JBJ; for a defect in a fuel tank, CA Bourges, 2 November 2005, LawLex200600001700JBJ; for breakages of the connecting rod on several series of vehicles, CA Douai, September 19, 2005, LawLex200600001703JBJ; for a breakage of the crankshaft, CA Poitiers, 27 January 2012, LawLex201200001604JBJ; for the failure of the joints which ensure the sealing of the oil circulation connections in the radiator, CA Agen, 5 September 2012, LawLex201300000209JBJ; for a connection failure between the pulley and the axis of the oil pump, CA Rouen, 28 January 2009, LawLex201200001830JBJ ; for a defect in the emission control system, CA Bastia, 11 January 2012, LawLex201200001678JBJ; concerning the prolonged and abnormal injection of diesel fuel into the combustion chambers, CA Colmar, 16 March 2012, LawLex201200001590JBJ; for a defect in the vacuum pump, CA Aix-en-Provence, 22 September 2011, LawLex201300000311JBJ.

 CA Angers, 28 June 2011, LawLex201200001663JBJ, lack of parallelism of the rotation axes of the distribution components and tensioners and reversers of a vehicle, causing the deterioration of the drive belt; CA Angers, 8 March 2011, LawLex201200001701JBJ, maladjustment of the belt drive to the V-shaped pulleys resulting in successive breakages of the belt.

 CA  Amiens, 29 March 2016, LawLex201600000717JBJ.

 CA Basse-Terre, 12 June 1995, LawLex200500005568JBJ.

 CA Paris, 15 November 1988, LawLex200500005607JBJ.

 Cass. com., 22 May 2012, LawLex201200000922JBJ.

 CA Toulouse, 3 October 1991, LawLex200300004195JBJ.

 CA Douai, 31 January 2011, LawLex201200001683JBJ.

 CA Bordeaux, 27 February 2017, LawLex201700000501JBJ.

 CA Montpellier, 21 February 2012, LawLex201200001648JBJ.

 CA Pau, 21 May 2012, LawLex201200001534JBJ.

 CA Rouen, 8 November 2001, LawLex200500004117JBJ.

 CA Rouen, 9 June 2010, LawLex201200001874JBJ: on-off manufacturing and programming deviation in the factory of the automatic gearbox calculator.

 CA Rennes, 2 March 2018, LawLex201800000430JBJ.

 Cass. com., 14 November 1989, LawLex200700000494JBJ.

 CA  Agen, 7 November 2011, LawLex201200000921JBJ.

 CA Montpellier, 25 September 2002, LawLex200500004123JBJ: cracks, holes and veins in corks allowing the passage and rise of wine in the cork constitute structure defects.

 CA Bordeaux, 7 June 2012, LawLex201200000923JBJ.

 CA Aix-en-Provence, 10 April 2012, LawLex201200001575JBJ, multiple craters, micro-millimeter stripping and apparent foam in the craters and surface of tiling.

 CA Douai, 22 March 2004, LawLex200800001511JBJ; CA Grenoble, 21 November 2005, LawLex200600001698JBJ; CA Lyon, 15 May 2008, LawLex201200001899JBJ; CA Nancy, 14 February 2013, LawLex201300000315JBJ: the stabilizing rod link and brake pads are parts subject to normal wear and tear caused by the use of the vehicle; Versailles, 21 February 2013, LawLex201300000320JBJ, destruction of a clutch disc related to normal wear and tear.

 CA Rennes, 10 December 2010, LawLex201200001778JBJ; CA Poitiers, 24 June 2011, LawLex201200001692JBJ; CA Poitiers, 29 June 2012, LawLex201200001511JBJ; CA Douai, 10 June  2013, LawLex201400001538JBJ.

 CA Poitiers, 28 March 2014, LawLex201400001821JBJ; Cf. Cass. com., 17 June 2020, LawLex202000001755JBJ, considering that the rapid wear and tear of shoes, which, although not sold as sports products, are intended for children who may practice sports, demonstrates the existence of a latent defect, even if it is a low-end product where the marketing aspect is more predominant than the manufacturing quality.

 CA Grenoble, 18 January 2006, LawLex200700000518JBJ: mechanical failures, which occurred after only 853 hours of use, although the normal lifespan of the machine is estimated at 10,000 hours, are necessarily caused by a defect inherent in the engine itself; Cass. com., 16 May 1995, LawLex200500003701JBJ and CA Bordeaux, 5 May 1998, LawLex200300004538JBJ, considering the premature wear of used ships abnormal.

 CA Montpellier, 9 November 2010, LawLex201200001855JBJ, rotting of the internal part of the back panel and the bottom of the side panels; CA Pau, 31 May 2011, LawLex201200001695JBJ, defect causing cracking of the right-side panel of a camper van.

 CA Montpellier, 28 April 2009, LawLex201200001803JBJ; CA Toulouse, 15 September 2010, LawLex201200001875JBJ: the premature degradation of the injection pump is abnormal for a vehicle having traveled less than 70,000 kilometers at the time of the failure; CA Versailles, 29 March 2012, LawLex201200001639JBJ, concerning the significant wear of camshafts that does not result from excessive mileage.

 Cass. 1re civ., 10 July 1990, LawLex200500005454JBJ. See also CA Nancy, 19 May 2005, LawLex200600001763JBJ; CA Toulouse, 27 March 2012, LawLex201200001585JBJ.

 CA Aix-en-Provence, 23 January 2018, LawLex201800000212JBJ.

CA Douai, 11 October 2018, LawLex201800001529JBJ.

 CA Dijon, 31 March 2016, LawLex201600000782JBJ.

 CA Lyon, 22 February 2011, LawLex201200001702JBJ, unexpected appearance of messages on the multifunction display and recording of abnormal signals in the memories of some calculators; 10 May 2012, LawLex201200001633JBJ, defect affecting a door whose window is not working.

 CA Nancy, 6 January 2011, LawLex201200001709JBJ; CA Aix-en-Provence, 22 September 2011, LawLex201300000311JBJ; CA Colmar, 16 March 2012, LawLex201200001590JBJ; CA Agen, 5 September 2012, LawLex201300000209JBJ; CA Dijon, 31 March 2016, LawLex201600000782JBJ.

 CA Bastia, 11 January 2012, LawLex201200001678JBJ; CA Poitiers, 25 March 2016, LawLex201600000717JBJ.

 CA Rennes, 7 January 2011, LawLex201200001877JBJ.

 Cass. civ. 1re, 14 December 2016, LawLex201700000020JBJ.

 CA Bourges, 12 May 2011, LawLex201200001697JBJ.

Concept

The requirement of a defect inherent in the thing sold excludes, in principle, the possibility of invoking a defect caused, in part or in whole, by a factor external to the thing.

The combination of two incompatible products cannot allow the buyer to act against his seller when each thing, taken separately, meets the purpose for which it is intended. This is the case of the incompatibility of one drug with another , or of two materials supplied by different manufacturers, causing disorders affecting the final product . Similarly, the seller of evaporators cannot be held liable when the defect reported is not inherent to them, but to the characteristics of the water used . Finally, the incompatibility occurring after the sale as a result of a change of operator is not covered by the warranty against latent defects, because the requirement of pre-existence is then lacking . On the other hand, the guarantee is due when the manufacturer itself has wrongly assured the buyer that its product was compatible with another  or when, aware of the intended use of the materials and unlikely to be unaware of the phenomenon of incompatibility existing between them, it fails to notify the buyer . The inability to listen to a CD on certain media is also a defect inherent to the thing, not a defect in the media, when it is probably the result of the copying system incorporated in the disc .

Climatic or geological factors may also be the cause of defects affecting a healthy thing. The courts have thus refused to apply the warranty against latent defects caused by regional climatic factors  - unless they predate the sale   - by a disease  , by the interaction of the thing with the air   or, in the case of corrosion of the parts of a ship, by the saline environment  .

Moreover, the inadequacy of a thing in relation to existing standards may constitute a hidden defect , provided, however, that they are applicable at the time of sale  or do not constitute standards which often vary over time, such as electrical standards .

 Cass. 1re civ., 8 April 1986, LawLex200500006104JBJ.

 CA Lyon, 27 May 2004, LawLex200700000515JBJ; CA Montpellier, 13 March 2012, LawLex201200001644JBJ: appearance of disorders only at the stage of the manufacture of the concrete, resulting from the association and interaction of multiple parameters, i.e. alkalinity, dosage of the cement sold and high humidity of the concrete, all factors external to the cement itself, leading to the exclusion of any action to implement the warranty for latent defects, which are necessarily inherent in the thing itself.

  Cass. com., 3 January 1991, LawLex200500005453JBJ: the warranty is not due when the damage caused by a soil cleaning product is not due to an inherent defect, but to the interaction of the product with the atmospheric air.

 CA Pau, 3 October 2012, LawLex201300000239JBJ; see also CA Paris, 10 October 2019, LawLex201900001221JBJ, considering that the phenomenon of corrosion is by nature a fact external to the thing sold which excludes the exercise of the action in warranty for latent defects.

 CA  Bordeaux, 25 January 2012, LawLex201200001667JBJ.

 CA Chambéry, 3 May 2012, LawLex201200001552JBJ, concerning the absence of cold-forging on the chassis of a 4x4 vehicle.

  CA Douai, 18 December 2006, LawLex200700000722JBJ.

 Cass. 1re civ., 15 November 1988, LawLex200700000493JBJ.

  CA Amiens, 19 June 2012, LawLex201200001522JBJ, the incompatibility between a decoder and a new card subscription that makes it impossible the reception of a digital television network.

 Cass. 3e civ., 31 January 1990, LawLex200500005449JBJ.

 CA Paris, 16 May 2007, LawLex201200001811JBJ.

 CA Versailles, 15 April 2005, LawLex200500005767JBJ.

 Cass. 1re civ., 15 July 1999, LawLex200500004311JBJ: beet seeds are not flawed when the poor quality of the crop can be attributed to regional climatic factors.

  Cass. 1re civ., 25 January 2005, LawLex200600002142JBJ.

  CA Bordeaux, 6 June 2005, LawLex200700000513JBJ, loss of effectiveness of a bactericide resulting from a disease affecting the plant.

External factors

In some cases, the defect does not affect the thing itself but an ancillary quality of it. Although the warranty applies to the subject matter of the sale and its accessories, the question of the scope of the guarantee may legitimately arise in certain situations. It is now recognized that the economic profitability of the thing is not one of the accessories to the sale covered by the warranty against latent defects. Thus, the seller of a piece of equipment is only obliged to guarantee the technical potential of the equipment sold, even if it has mentioned its economic profitability in its advertisements . The same applies in the case of real estate property, where the seller is only obliged to guarantee the habitable nature of the property  or its constructible nature , but in no case its economic profitability because of the lack of control of its subsequent use . Finally, the absence of a contractual guarantee of a vehicle does not constitute a latent defect, insofar as its origin is not inherent to the thing .

  Cass. com., 1 December 1992, LawLex200500004342JBJ, upholding CA Lyon, 19 October 1990, LawLex200500005540JBJ.

 CA Paris, 9 April 1999, LawLex200600002294JBJ.

  CA Aix-en-Provence, 20 June 2002, LawLex200600002295JBJ.

Cass. 3e civ., 21 March 2019, LawLex201900000426JBJ.

  CA Rennes, 6 April 2012, LawLex201200001638JBJ.

French Consumer Law

595. Defect affecting an ancillary quality of the thing

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

595. Defect affecting an ancillary quality of the thing

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise