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 the framework of the contract of sale, the safety obligation ancillary to the obligation to delivery consists in “delivering products free from any defect or any manufacturing defect of such a nature as to create a danger for persons or property”. According to the Court of Cassation, this contractual safety obligation is incumbent on the professional seller, whether the importer , exclusive dis …

Contractual saftety obligation

In the framework of the contract of sale, the safety obligation ancillary to the obligation to delivery consists in “delivering products free from any defect or any manufacturing defect of such a nature as to create a danger for persons or property”. According to the Court of Cassation, this contractual safety obligation is incumbent on the professional seller, whether the importer , exclusive distributor , manufacturer , or installer  independently of the warranty against latent defects . The safety obligation related to the delivery of the product is, in principle, a results-based obligation . It is limited to the delivery of products which, used in conditions that comply with the suppliers' recommendations, normally present no danger for users .

The scope of this obligation is fairly broad since, according to case law, the professional seller incurs his contractual liability if he fails to check the compliance of the device before it is put into service , in the event of the poor design , manufacture  or presentation  of the product sold, when it is the cause of the accident suffered by the victim. This is the case of a laboratory which markets a product which is extremely dangerous to the health of the infant in the event of accidental absorption in a packaging allowing confusion with another totally innocuous care product also intended for young children .

However, the safety obligation imposed on the producer is more stringent than that of the seller. In the absence of any fault on the part of the distributor, case law opens the way for a warranty claim against the manufacturer . When the manufacturing defect of the product having caused the damage is attributable to the manufacturer, it must, according to the Court of Cassation, fully guarantee the seller against the convictions handed down against it . However, the distributor who does not comply with the producer's request to withdraw its product from sale as a safety measure, must contribute to the compensation of the damage . Although such behavior characterizes a fault on the part of the seller, it has been held that the existence of a product recall procedure cannot exempt the manufacturer, the importer, or the seller from liability . In general, the courts show a certain degree of severity towards the professional. For example, the Court of Cassation refused to admit the recourse action of the manufacturer of a household appliance against the designer of the part of the device having caused the damage, i.e. the on/off switch, since in its capacity as a professional buyer, it should have discovered the defect affecting this part, consisting of a simple mechanism .

  Cass. 1re civ., 11 June 1991, LawLex200300003039JBJ, noting that the importer breaches its contractual safety obligation by marketing a mobile home equipped with a defective heating system implying a danger to persons or property.

  Cass. 1re civ., 11 June 1991, LawLex200300003039JBJ: exclusive distributor and importer jointly and severally liable for damage resulting from the breach of their contractual safety obligation.

  Cass. com., 12 July 2005, LawLex200600001463JBJ: even if the subcontractor in charge of the maintenance of the helicopter in question committed a fault by mistakenly installing a nut intended for another model causing its fall and the death of its occupants, the same applies to the manufacturer who, by showing barely legible references on its device, did not implement a system capable of eliminating any risk of confusion.

 TGI Paris, 21 September 1998, LawLex200300003474JBJ: concerning a product intended for the cold sterilization of feeding bottles, whose presentation was almost identical to a physiological saline intended to help the nasopharyngeal disinfection of children.

 Cass. com., 4 March 2003, LawLex200600001098JBJ.

  Cass. 1re civ., 17 January 1995, LawLex200300003038JBJ: the manufacturer is required to sell to its distributor products free of any manufacturing defects creating a hazard to persons or property, meaning that it must hold the distributor harmless against all convictions handed down against it, when the defect is entirely attributable to it. See also  CA Toulouse, 26 June 2001, LawLex200600001102JBJ.

  TGI Paris, 21 September 1998, LawLex200300003474JBJ.

  CA Versailles, 25 March 2010, LawLex201200001827JBJ, deducting, on the contrary, from the existence of a recall action, the absence of any doubt as to the defect which affected the cartridges in question.

  Cass. com., 4 March 2003, LawLex200600001098JBJ.

  Court of Cassation, 1st Civil Chamber, 20 March 1989, LawLex201600000869JBJ, holding that the manufacturer of a television that imploded incurs its contractual liability vis-à-vis the buyer and its tortious liability vis-à-vis the co-owners' association of the building in which the implosion occurred.

CA Basse-Terre, 14 December 2016, LawLex201700000003JBJ: holding that the reseller-installer of a photovoltaic plant which was obliged to observe the rules of the trade and the safety standards in force at the time of the installation, and then in the course of its interventions following the installation issues and the connection of new hardware which caused the fire in the installation, and should have advised the victim on the safety measures necessary, failed to fulfill its contractual obligation of information and safety. 

  Cass. 1re civ., 11 June 1991, LawLex200300003039JBJ; 27 January 1993, LawLex200300003081JBJ.

   CA Grenoble, 11 June 2008, LawLex201200001839JBJ; CA Douai, 1 February 2018, LawLex201800000272JBJ: The professional seller/installer is bound by a results-based obligation in respect of his client to provide and install a book in conformity with the order, free of defects and substandard work, provided that the breach of contract comes from a cause attributable to him. Such is not the case, when the origin of the fire remains undefined, it is not shown that the fire of the oven comes from a technical defect inherent in the equipment installed, or that it is a result of a handling error or a breach of the general rules of the trade, nor that the seller/installer has failed to fulfill its obligation of prudence and safety, as the fire broke out during the lunch break, while the oven was turned off and the installation of the equipment was not approved; CA Douai, 25 April 2018, LawLex201800000644JBJ: the supplier/installer of a swimming pool cover which had collapsed, is bound by a results-based obligation  from which he can not be exempted by the evidence of a outside cause; Cass. 3e civ., 5 November. 2020, LawLex202000003161JBJ, holding that the undertaking in charge of the maintenance of an automatic access door to a parking lot is bound by a results-based obligation as regards the safety of the device, and the fact that, under the regulations, six months may elapse between two maintenance visits and that, during those periods, an intervention due to a malfunction of any kind is dependent on being notified by the building attendant, is immaterial.

  Cass. 1re civ., 22 January 1991, LawLex200300003074JBJ; CA Chambéry, 9 December 2021, LawLex202100006274JBJ: the organizer of an treetop rope course is contractually liable to the victim when he provides defective equipment. It should be noted, however, that a dangerous product is not a defective product within the meaning of Articles 1245 et seq. (formerly Articles 1386-1 et seq.) of the Civil Code. 

  CA Montpellier, 23 March 2010, LawLex201300000917JBJ.

  CA Rouen, 8 November 2001, LawLex200500004117JBJ: for a refrigerated cabinet with a permanent safety defect due to the presence of a steel sheet with no protection.

  Cass. 1re civ., 3 March 1998, LawLex200600001290JBJ: the manufacturer incurs its contractual liability when the severe inflammation suffered by the victim is attributable to the characteristics of the non-digestible shell of the table it markets.

French Consumer Law

658. Contractual saftety obligation

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

658. Contractual saftety obligation

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