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

Articles 1641 et seq. of the Civil Code grant the benefit of the guarantee to the “purchaser”. The concept is protean and covers various legal situations.
1)  Co-owner
The action in warranty is not reserved to a single natural person or legal entity, but to any co-owner of the thing. Its admissibility is not subject to its initiation by all the co-owners .
2)  Finance lessee
The leasing contract i …

Concept of purchaser

Articles 1641 et seq. of the Civil Code grant the benefit of the guarantee to the “purchaser”. The concept is protean and covers various legal situations.

The action in warranty is not reserved to a single natural person or legal entity, but to any co-owner of the thing. Its admissibility is not subject to its initiation by all the co-owners .

The leasing contract is an agreement whereby a financial institution leases a property to a person who, at the end of a certain period, has an option to either return the property or purchase it, or to request the renewal of the contract. Legally, the status of buyer is therefore only acquired at the time the option is exercised by the lessee . This is why such contracts often include a clause whereby the lessor gives a mandate to the lessee to exercise the rights and actions attached to the ownership of the subject matter of the contract, in particular the action in warranty for latent defects, against the initial seller . In return, the lessee waives the guarantees he holds on the lessor.

The first civil chamber of the Court of Cassation has long held that the mandate given by the lessor to the lessee does not survive when the leasing contract is terminated . The commercial chamber, initially reluctant to admit the extinction of the mandate , has since aligned itself with this position , but specifying that the parties have the option of inserting a clause in the contract providing for the survival of the mandate despite the disappearance of the contract . In addition, the judge who ordered the termination of the contract of sale between the lessor and the builder is entitled to accept the claim for compensation of the lessee who, as a third party to the contract, may invoke its defective performance when this has caused him injury .

The warranty against latent defects is automatically transmitted to subsequent purchasers of the thing, meaning that the sub-purchaser enjoys all the rights and actions attached to the thing that belonged to its seller . He can act either against his own seller, or against the original seller or the manufacturer, provided that there is a contractual relationship that is direct or arising from a chain of contracts transferring ownership with the original seller  and that the defect already existed at the time of the initial sale . The original seller cannot, to escape its liability vis-à-vis the sub-purchaser, rely on the possible knowledge of the defect by the intermediate seller  or its professional status .

However, the action of the sub-purchaser against the original seller is impossible when it has already obtained the conviction of its owner seller and the sale was cancelled . In fact, in this case, the sub-purchaser returned the thing and was refunded. However, an action to rescind the contract by the sub-purchaser against the original seller is conditional on the restitution, to the latter, of the thing affected by a defect . Moreover, direct action by the final buyer, who does not have more rights than the author against the manufacturer of the thing, will not succeed insofar as the right of the intermediary seller  to act against the latter has been revoked .

The intermediary seller who resells the thing to a sub-purchaser remains entitled to bring an action against its direct seller if it is established that the defect existed on the date of the sale . Case law considers that the resale of the property does not deprive him of the rights and actions attached to it, provided, however, that he justifies a personal, direct and certain interest in acting . Such is the case where the intermediary seller can establish a vested and certain interest in obtaining compensation for the damage resulting from its depreciation at the time of the resale or loss of enjoyment suffered while he was still the owner . On the other hand such an action will fail when the action of the sub-purchaser was declared inadmissible due to the expiry of the short period  or when the sub-purchaser has not brought an action against the intermediate seller .

The rule also applies to the non-professional intermediary seller who resold the thing. Thus, the purchaser who was forced to resell the thing at a lower price because of the defects it contained remains entitled to take action to enforce the warranty against latent defects against his seller .

 CA Pau, 18 April 2013, LawLex201400001567JBJ.

 CA Pau, 22 November 2010, LawLex201200001779JBJ: the financial lessee acquires the status of owner of the vehicle when he exercises the option attached to the lease with an option purchase; CA Poitiers, 27 January 2012, LawLex201200001604JBJ.

 CA Aix-en-Provence, 16 June 1994, LawLex200500004281JBJ; CA Colmar, 27 June 2005, LawLex200600001714JBJ; CA Rouen, 28 January 2009, LawLex201200001830JBJ.

 Cass. com., 24 November 1987, LawLex200700000616JBJ.

 Cass. 1re civ., 20 June 1995, LawLex200500003698JBJ.

 CA Rennes, 14 February 2008, LawLex201200001897JBJ.

 Cass. 1re civ., 16 April 1996, LawLex200500004352JBJ.

CA Dijon, 13 February 2020, LawLex202000000233JBJ.

 CA Rouen, 31 October 2001, LawLex200700000629JBJ; CA Aix-en-Provence, 20 March 2007, LawLex201200001941JBJ; CA Paris, 10 October 2019, LawLex201900001221JBJ.

 Cass. 1re civ., 19 January 1988, LawLex200700000614JBJ; 21 June 1988, LawLex200700000615JBJ; Cass. com., 12 January 1988, LawLex200700000613JBJ; CA Caen, 11 July 2002, LawLex200700000625JBJ; CA Lyon, 7 September 2010, LawLex201200001904JBJ.

 CA Caen, 24 April 2018, LawLex201800000645JBJ.

 Cass. com., 13 January 1998, LawLex200700000617JBJ.

 Cass. com., 16 December 1997, LawLex200500004306JBJ; 19 May 1998, LawLex200700000620JBJ.

 Cass. com., 7 January 2003, LawLex200300004127JBJ, upholding CA Versailles, 6 May 1999, LawLex200300003758JBJ. A contrario, CA Versailles, 11 December 1997, LawLex200500005756JBJ.

 Cass. 3e civ., 27 June 2001, LawLex200500003681JBJ, quashing CA Grenoble, 9 March 1999, LawLex200500004283JBJ. Contra: CA Aix-en-Provence, 31 January 2008, LawLex201200001850JBJ.

 Cass. 1re civ., 23 June 1992, LawLex200700000669JBJ; Cass. com., 26 March 2013, LawLex201400000365JBJ.

 Cass. com., 8 December 1992, 2 judgments, LawLex200700000670JBJ and LawLex200700000671JBJ, holding that the extinction of the mandate to act can only intervene if, correlatively, the lessee's right of action against the lessor is renewed.

 Cass. com., 13 March 2001, LawLex200700000619JBJ.

 Cass. com., 11 July 2006, LawLex200600001985JBJ.

 Cass. com., 16 January 2007, LawLex201200001507JBJ.

 See, laying down the principle of the direct action of the sub-purchaser against the original seller in the area of non-conformity, Cass. Ass. plén., 7 February 1986, LawLex200600001136JBJ.

 CA Paris, 15 November 1988, LawLex200500005607JBJ; CA Nîmes, 22 June 2010, LawLex201200001785JBJ; CA Douai, 11 April 2011, LawLex201200001908JBJ; CA Paris, 2 November 2017, LawLex201700001846JBJ; 23 January 2020, LawLex202000000118JBJ.

French Consumer Law

611. Concept of purchaser

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Les notions juridiques connexes

611. Concept of purchaser

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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