The contract is executed by the delivery of the thing sold and its receipt, and the payment of the price
The seller’s obligations
Delivery of the thing sold
The seller has an obligation to deliver . Deliverance is the transfer of the thing sold into the enjoyment and possession of the buyer (art 1604 C.Civ)
The quantity is that fixed in the contract or by the order form.
The seller must deliver the accessories of the thing sold (art.1615C. Civ.)
When he is committed, the seller must maintain the thing sold.
The goods must be handed over at the place indicated in the contract, or as the case may be by custom. In the absence of precision, this place is where the thing is located at the time of the conclusion of the contract (art. 1608 C. civ.)
The seller must deliver within the period agreed by the parties to the contract (art. 1610 C. Civ.). If the deadline is stipulated as being mandatory, the sale can be canceled without formal notice as soon as the deadline has passed.
|It is perfect between the parties, and the property is acquired by operation of law from the buyer vis-à-vis the seller, as soon as the thing and the price have been agreed upon, although the thing has not yet been delivered or the price paid.
The parties may however derogate from this rule and dissociate the transfer of risks from the transfer of ownership.
Guarantee of hidden defects
The seller owes the buyer a guarantee that the goods are free from any defects rendering them unfit for the use for which they are intended.
The defect must be hidden and prior to the sale. He must render the thing unfit for the use for which the buyer intends it or reduce such use to such an extent that he would not have acquired it or would have given a lower price if he had known it (art. 1641 C. civ.). The hidden nature of the defect is assessed differently depending on whether it is a non-professional buyer or a professional buyer (ie of the same specialty).
The seller also owes the eviction guarantee (art. 1626.C.civ.).
The purchaser of the thing has the choice between two actions to invoke the guarantee (art. 1644 C.Civ.)
- the crippling action which results in the reimbursement of the price by return of the item
- the estimated action which results in a decrease in the price arbitrated by expert
Unless expressly provided, appraisal or prohibitive actions must be exercised, on pain of forfeiture, within a short time depending on the nature of the defects and the uses of the place where the sale was made (art. 1648 Civil C.)
The purchaser can request the guarantee of the hidden defect from his seller or act directly against the manufacturer.
Repairs due by the seller
The seller in good faith must reimburse the purchaser for the costs occasioned by the sale (art. 1646 Civil Code) but not for the damage caused by the item affected by the defect.
The seller in bad faith is liable for all damages for the damage suffered by the buyer (art. 1645 C. civ.). The seller who was aware of the defects in the item or who could not ignore them, as well as the professional seller, who is considered not to be able to ignore the defects of which the item is affected or is required to know them, is deemed to be in bad faith. He cannot be exempted from the presumption of bad faith.
The seller may contractually grant a guarantee greater than that provided for by law.
The seller often seeks, through so-called guarantee clauses, in fact to make the buyer assume risks, or to provide for limitations in the time of the guarantee or the limitation of the elements of damage.
The stipulation of clauses limiting or excluding liability is not valid for the professional seller or in the case of a professional sale. On the other hand, the clauses are opposable between professionals of the same specialty.
The essential obligation of the buyer is to pay the price.
Seller’s right of retention
The seller’s right of retention implies the possession of the item and the retention of administrative documents cannot be covered by this guarantee.
Cass. Com July 11, 2000
Ridiculous price and nullity of the sale for low price
the sale granted without a serious price is affected by a nullity which, being based on the absence of an essential element of this contract, is an absolute nullity subject to the thirty-year prescription of common law Cass. com. 23 October 2007
Case law: Vility of the price
Sale and ownership
Article 1599 of the Civil Code provides ” The sale of the property of others is void … “.