Industrial Property Law

The transferor is obliged by law to guarantee the transferee against any disturbance to the enjoyment (dispossession) of the rights assigned to the title (Article 1626 Civil Code). The warranty owed to the transferee is intended to protect the transferee against both the transferor's personal acts and those of third parties.
1) Warranty against transferor's personal acts
Under Article 1628 of the  …

Warranty against dispossession (garantie d'éviction)

The transferor is obliged by law to guarantee the transferee against any disturbance to the enjoyment (dispossession) of the rights assigned to the title (Article 1626 Civil Code). The warranty owed to the transferee is intended to protect the transferee against both the transferor's personal acts and those of third parties.

1) Warranty against transferor's personal acts

Under Article 1628 of the Civil Code, the transferor remains liable for his or her own acts, whatever the contractual stipulations relating to the warranty to hold harmless. In effect, the legal obligation to provide a guarantee for personal acts is a rule of public policy. Any agreement to the contrary is null and void. The transferor must therefore refrain from interfering, in fact or in law, with the transferee's peaceful possession of the patent. He must therefore refrain from exploiting the protected invention, except in the case of a partial transfer. The transferor is not entitled to bring an action for total or partial invalidity of the transferred patent, or to invoke rights which hinder its peaceful exploitation, such as ownership of an earlier patent on which the assigned patent depends.

2) Warranty against acts of third parties

The warranty in respect of third parties protects the transferee against any dispossession of rights that may result from infringement or claim actions brought by third parties seeking to obtain recognition of their rights to the title   and enables the transferee to require the transferor to intervene in the proceedings to defend its rights. It is only owed by the transferor to the transferee who is subject to a dispossession by a third party .

A purchaser who has been prevented from exercising his rights has the right to claim restitution of the purchase price, as well as costs relating to the legal action and damages (Article 1630 Civil Code). In addition, a transferee who has been partially prevented from enjoyment of his rights may sue the transferor for rescission of the contract, provided that the partial loss of rights is such that the transferee would not have agreed to the contract in the absence of the lost rights (Article 1636 Civil Code). In this case, if the sale is not rescinded, the transferee may obtain reimbursement of the value of the part for which he has been dispossessed out, according to the valuation at the time of the breach (Article 1637).   

The parties may contractually waive, limit or reinforce the warranty against dispossession  in (Article 1627 Civil Code). However, in the event of partial or total dispossession of the transferee, a waiver of the warranty does not release the transferor from the obligation to reimburse the transferee for the corresponding price, unless the transferee was aware of the risk at the time of the sale, or if he acquired the rights at his own risks (Article 1629 Civil Code).

The warranty against dispossession cannot be invoked in the context of an action for invalidity, which seeks the invalidity of the title and not the recognition of a right.

Cass. com., 8 April 2021, LawLex202200003451JBJ, which states that only the transferee who is subject to the dispossession may invoke this right against the transferor, to the exclusion, in particular, of its parent undertaking, even if the latter has incurred costs to defend the rights of its subsidiary.

Industrial Property Law

321. Warranty against dispossession (garantie d'éviction)

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321. Warranty against dispossession (garantie d'éviction)

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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