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 irrebuttable presumption of knowledge of defects which prevents the seller from enforcing against his purchaser a clause limiting or excluding the warranty against latent defects when dealing with a layman or professional of a different specialty, does not weigh on the occasional seller. However, he must not behave like a professional .
To defeat the application of the clause, the buyer must d …

Occasional seller

Although the text of Article 1643 of the Civil Code, in specifying that the seller who was unaware of the defects could limit his/her warranty obligation, retains the hypothesis of the seller's good faith, the case law places on the latter, if a professional, an irrebuttable presumption of knowledge of the defects. This prevents the enforcing of a clause purporting to limit or waive its obligation to guarantee against latent defects vis-à-vis the lay buyer  or buyer of a different specialty for another professional . On the other hand, such a clause is enforceable toward the professional buyer of the same specialty as the seller . The irrebuttable nature of the presumption means that the proof, by the professional seller, of his good faith at the time of the sale, does not affect the implementation of the limitation clause . The question of the conformity of this solution with Union law was raised before the Court of Justice. The applicant argued that French case law, which has no equivalent in any other Member State, was liable to distort competition and to impede the free movement of goods. The Court of Justice declared the presumption to be in conformity with Union law since its irrebuttable nature is fully justified by the protection of the buyer .

However, the professional seller can circumvent the rigor of the case law solution. On the one hand, he can try to demonstrate that he is not, in reality, a professional seller. Thus, the Court of Cassation admitted that a demolition contractor who sells a truck is entitled to enforce against his buyer a clause waiving any warranty when he does not have the status of professional in the sale of vehicles . On the other hand, if his status as a professional seller cannot successfully be challenged, the seller can try to establish that he is not a specialist in the sector in question. This was the case, in real estate matters, of the company specializing in the treatment of wood which sells a plot of land , of a company with no particular knowledge in the field of real estate sales which sells one of the real estate assets of its parent company , of the insurance company which sells its real estate assets  or of the seller who, although subsequently a real estate professional, sells a property within the framework of the management of his personal assets . However, even if acting within the framework of the management of his personal assets, an individual can be assimilated to a professional in the field of real estate construction when, having in the past managed a building company for many years which built many residential buildings, he visited the site of the building at issue several times . The Court of Cassation recently reiterated this principle: the professional seller, which includes the seller who has carried out the work causing the defects in the item sold , is expected to be aware of them, and cannot rely on a clause limiting or excluding the warranty for latent defects  .

  CA Pau, 8 September 1994, LawLex200700000869JBJ; CA Paris, 4 December 2008, LawLex201200001882JBJ, holding that the clause according to which the vehicle is sold “as is without any guarantee” by a professional, presumed to be aware of the defect, can only be declared unfair and invalid pursuant to Article R. 212-1 (former Article R. 132-1) of the Consumer Code; CA Besançon, 2 May 2013, LawLex201500001148JBJ, holding that the clause by which the professional seller, presumed to know the defects of the thing, refers the buyer to the importer for the after-sales service, is not enforceable towards the buyer.

 Cass. com., 2 March 1993, LawLex200500005480JBJ; 18 February 1997, LawLex200500003689JBJ.

Cass. 3e civ, 26 April 2006, LawLex200700000117JBJ, CA Pau, 2 May 2023, LawLex202300006293JBJ, holding that in the presence of a latent defect in the heating system which renders the installation unfit for use by the purchasers - laymen in the field - the warranty disclaimer in the deed of sale is inapplicable when the sellers, also laymen but necessarily informed of the defect in their heating system since they were the installers, behaved like construction professionals.

CA Caen, 8 October 2024, LawLex202400007654JBJ.

Cass. 3e civ, 19 October 2023, LawLex202300012673JBJ; 5 September 2024, LawLex202400005959JBJ, specifying that a court of appeal cannot hold that the status as a seller of real estate does not make the société civile immobilière (non-trading property company) in question a professional in the building trade, without ascertaining, as it was incumbent upon it to do, whether the company - the purpose of which is the ownership, management and more generally the exploitation by lease, rental or any other form of real estate that it proposes to acquire and all financial transactions involving movable or immovable property of a purely civil nature and relating to the corporate objective - had bought a dwelling house with a view to reselling it after renovation work, was not a real estate professional within the meaning of the latent defect waiver clause.

 Cass. com., 3 February 1998, LawLex200500004305JBJ.

 CA Pau, 8 September 1994, LawLex200700000869JBJ.

 Case C-339/89 Alsthom Atlantique SA, Judgment of 24 January, LawLex201100000299JBJ.

 Cass. 3e civ., 26 June 1990, LawLex200500005456JBJ.

 CA Versailles, 13 January 2000, LawLex200500005114JBJ; CA Chambéry, 22 March 1994, LawLex200500004226JBJ, holding that the seller of an unfinished property may avail himself of a warranty disclaimer against latent defects when, as a mere electrician with no knowledge of building techniques, he cannot be considered as a professional in the construction sector .

 Cass. 3e civ., 10 July 2001, LawLex200500003683JBJ.

 Cass. 3e civ., 25 April 2007, LawLex200700000839JBJ.

 CA Colmar, 13 March 2006, LawLex200600002149JBJ.

Professional seller

The irrebuttable presumption of knowledge of defects which prevents the seller from enforcing against his purchaser a clause limiting or excluding the warranty against latent defects when dealing with a layman or professional of a different specialty, does not weigh on the occasional seller. However, he must not behave like a professional .

To defeat the application of the clause, the buyer must demonstrate the gross negligence or fraudulent maneuvers of the seller  or, more conventionally, his bad faith at the time of the sale . This is established when the seller has acknowledged that he knew the defect when he himself bought the thing  or proceeded, prior to the sale, with work to limit the consequences of the defect  or to conceal it . The occasional seller is also in bad faith when he was informed of the defect before the sale   or at least knew of the latent aspect of it at the time of the sale .

The occasional seller may, however, avail himself of the clause when his bad faith is not established . He is in good faith when, although he had lived in the building, he handed the keys to the buyers several months before the sale, who were only able to discover the seriousness and extent of the disorders after in-depth studies  or when he has not lived himself in the building sold  or had diagnoses carried out, before the sale, which proved to be negative .

In addition, a non-professional seller who had not complied with professional standards in the construction of the house sold, was considered to be in good faith insofar as he was not aware of his mistakes and did not intend to conceal them . Similarly, a simple mistake by the seller who wrongly equates a septic tank with a cesspit, does not constitute bad faith on his part .  This solution seems to have been abandoned by the Court of Cassation, which considers that the occasional seller cannot rely on a warranty disclaimer against the buyer when he has carried out or had carried out the work at the origin of the defect denounced without having recourse to a professional undertaking .

 Cass. 3e civ., 3 May 1996, LawLex200500003854JBJ: the occasional seller who, without using or seeking the advice of professionals, designed and directed the construction of a villa and its swimming pool, is presumed, as the builder, to know the defects of the work, and cannot rely on the warranty exclusion clause contained in the deed of sale; Cf. the situation of the individual who has a property built by a contractor and who is obliged to continue the work himself following the abandonment of the site by the contractor, Cass. 3e civ., 3 April 1997, LawLex200700000838JBJ.

 Cass. 3e civ., 3 July 1991, LawLex200500005457JBJ; 15 May 1996, LawLex200500003852JBJ; 3 November 2004, LawLex200400003413JBJ; CA Lyon, 30 May 2002, LawLex200500004231JBJ; CA Nîmes, 29 January 2013, LawLex201300000319JBJ.

 CA  Pau, 11 September 1986, LawLex200500005574JBJ.

  CA Nîmes, 2 February 2006, LawLex200700000832JBJ.

  Cass. com., 20 October 1992, LawLex200500005466JBJ; Cass. 3e civ., 7 July 2004, LawLex200400003426JBJ.

  CA Nîmes, 6 May 2004, LawLex200700000727JBJ.

Cass. 3e civ., 6 December 2018, LawLex201900002092JBJ.

 CA Versailles, 13 January 2000, LawLex200500005114JBJ; Cass. 3e civ., 16 December 2009, LawLex201200001600JBJ: the seller who, having knowledge of a defect at the time of conclusion of the contract, stipulates that he will not guarantee it, is bound to do so notwithstanding said clause.

 Cass. 3e civ., 27 March 2007, LawLex200700000840JBJ: the seller of a building with a certain level of radioactivity who made statements to the press that he had bought it in full knowledge of the facts, and refused to carry out the checks and controls recommended by the real estate agent in charge of the sale. Cf. Cass. 3e civ., 19 December 2001, declaring that the seller who is only aware of the risk of pollution, without knowing whether it has occurred, may rely on the warranty disclaimer.

 Cass. 3e civ., 28 March 2007, LawLex200700000829JBJ; CA Douai, 10 November 1997, LawLex200500004129JBJ; CA Reims, 23 June 1999, LawLex200500004119JBJ.

 CA Douai, 18 December 2006, LawLex200700000722JBJ; CA Versailles, 13 January 2000, LawLex200500005068JBJ; CA Toulouse, 22 November 2005, LawLex200600001722JBJ; CA Bourges, 29 August 1996, LawLex200500005575JBJ.

 CA Toulouse, 10 February 2003, LawLex200300003516JBJ.

 Cass. 3e civ., 8 April 2009, LawLex201200001509JBJ, holding that the presence known to the seller, even inactive, of termites in an old building constitutes a defect when, very rapidly, a situation characterized by a simple presence may randomly and unpredictably transform into a veritable infestation caused by a renewed activity.

 Cass. 3e civ., 21 June 1995, LawLex200500004346JBJ; 19 December 2001, LawLex200500003835JBJ, cited above; 4 November 2004, LawLex200400003414JBJ; CA Caen, 31 October 2006, LawLex200700000831JBJ; CA Paris, 1 December 2006, LawLex200700000834JBJ.

 Cass. 3e civ., 17 March 2004, LawLex200500003826JBJ. - See also, for defects that could only be detected by an expert, CA Douai, 31 March 1992, LawLex200500005672JBJ; CA Bordeaux, 14 April 1992, LawLex200400001847JBJ.

French Consumer Law

639. Occasional seller

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Les notions juridiques connexes

639. Occasional seller

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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