LexInter | May 22, 2002 | 0 Comments


Article 1641 of the Civil Code states that ”  the seller is bound by the guarantee on account of the hidden defects of the item sold which make it unfit for the use for which it is intended, or which reduce this use so much that the buyer would not have acquired it, or would have given a lower price, if he had known them  ”.

The warranty against hidden defects is applicable whether the seller is professional or not, whether the buyer is a consumer or not, whether the contract is written or not, whether the good is new or used and even in the absence of payment by the customer. ‘buyer of the full price.

The guarantee against hidden defects operates under the following conditions:

  • the defect or defect affecting the good must be serious; he must prevent normal use of the good or reduce its properties to such an extent that the buyer would not have bought it or would have offered a lower price if he had known it;

  • the defect or defect affecting the property must be concealed; it must not be detectable during the sale despite the usual checks. Conversely, the seller is not liable for apparent defects, that is to say those that a person of average diligence would have discovered while carrying out elementary checks;

  • the defect or defect affecting the good must be prior to the sale even if it appeared later; it must not be the consequence of improper use of the product by the purchaser. Proof of the anteriority of the defect can be done by any means (in practice an expertise is often necessary);

  • the action in warranty against hidden defects must be brought by the buyer within two years from the day on which he discovered the existence of the defect or defect.

When the four conditions are met, the buyer has under Article 1644 of the Civil Code the following option:

  • return the purchased product and be reimbursed for the full price; the buyer initiates what is termed a crippling action. This action is not possible if the property has been destroyed because it must be returned in return for reimbursement;

  • keep the property and be compensated by the seller for a part of the price in proportion to the loss of value caused by the hidden defect; the buyer who exercises his right to keep the thing while requesting that the price be reassessed to take into account the defect of which it is tainted or that because of this defect he will derive less use from it, institutes the action qualified as estimated action. The valuation action makes it possible to put the buyer back in the situation he would have been in if the thing sold had not been affected by defects. The reduction will be proportional to the loss in value of the item. This is neither a civil liability action nor an action for damages. The aim of such action is to rebalance benefits. The return of part of the price is generally arbitrated by an expert. It will be equal to the sums that the purchaser will have to pay to remedy the defect with which it is affected. (Cass. Civ. 1 January 16, 1985).

The buyer of a thing with a hidden defect may refuse the restoration of the item sold by the seller or its replacement. (Cass. Civ. 1, June 11, 1980)

If the purchaser accepts that the seller proceeds to the restoration of this good can no longer then invoke the action in warranty once the original defect has disappeared but can seek compensation for any damage suffered as a result of this defect. (Cass. Com., February 1, 2011,).

Finally, if the loss of the thing sold which arrived by fortuitous event is at the risk of the buyer who has remained the owner of it, it does not prevent the latter from obtaining, by means of the valuation action, the reduction. of the price justified by the seriousness of the defect with which this item was affected (Cass. civ. 1, December 13, 1996)

In both cases, the seller is required:

  • the payment to the buyer of all damages if he knew of the defects of the thing sold, that is to say if he was in bad faith.

     Bad faith is presumed when the seller is a professional

  • reimbursement to the buyer of the costs incurred by the sale (reimbursement of parts and labor, possible transport costs, etc.) if he was unaware of the defects in the item sold, that is to say he was in good faith.


The action given to the buyer by articles 1641 and following of the Civil Code is prescribed by two years. The period runs from the date of discovery of the defect. This discovery may result from an expert’s report if an expert’s report had proved necessary to assess the extent and the irremediable nature of the disorders (Cass. Civ. 1, April 4, 2006, appeal n ° 03-20379, Legifrance) .

The Court of Cassation ruled (Cass. Civ. 1, October 19, 1999) that the purchaser acting as a guarantee for latent defects, who summons his seller in summary proceedings within the short time to have an expert report ordered, meets the requirements of the Law and as soon as the limitation period is interrupted, the ordinary law prescription runs from the conclusion of the sale.

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